Section 9 Control of Narcotic Substances Act 1997

Section 9 : Punishment for contravention of Sections 6, 7 and 8

 

2023  YLR  966   PESHAWAR-HIGH-COURT

ASIF ULLAH VS State

9(c)—Qanun-e-Shahadat (10 of 1984), Art. 129(g)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Withholding material evidence—Scope—Prosecution case was that 17335 grams of charas in 15 packets was recovered from the petrol tank of the vehicle driven by the accused—Damaging aspect of the case for the prosecution was that the official who had taken the 15 representative samples to the Forensic Science Laboratory from the malkhana had not been produced by the prosecution—Though Moharrar of the police station stated in his cross-examination that the representative samples were handed over to Police Constable for taking them to Forensic Science Laboratory but as Police Constable did appear before the court, thus, mere mentioning name of the carrier would not absolve the prosecution from establishing that from the police malkhana to Forensic Science Laboratory no one had interfered with the samples—Safe transmission of the samples to Forensic Science Laboratory had not been proved—Besides, no application on behalf of the complainant or the Investigation Officer for seeking opinion of the Forensic Science Laboratory whether the representative samples were charas or otherwise was available on the case file—Said fact was admitted before the Trial Court by the Seizing Officer—Circumstances established that the prosecution failed to prove its charge against the accused through worth reliable evidence—Appeal against conviction was allowed, in circumstances.

2023  YLR  408   PESHAWAR-HIGH-COURT

MUHAMMAD SAJJAD VS State

1. 9(c)— Control of Narcotic Substances (Government Analysts) Rules, 2001, R.6—Possession of narcotics—Report of Chemical Analysts—Protocols non-indication of—Per se admissibility—Principle—Twelve packets of charas, total weighing twelve kilograms, was recovered from the secret cavities of the car driven by the accused—Absence of necessary protocols on the Forensic Science Laboratory Report regarding the tests applied for as required under S. 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 and uncertainty as to safe custody and safe transmission of the representative samples to the Forensic Science Laboratory was yet another blow to the prosecution case making the Forensic Science Laboratory Report unreliable because neither the Seizing Officer nor Official who had taken the murasilla to the Police Station had said anything as to handing over the representative samples to the Moharrir of the Police Station—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was allowed, in circumstances.

2023  YLR  408   PESHAWAR-HIGH-COURT

MUHAMMAD SAJJAD VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Benefit of doubt—Contradictions in the statements of witnesses—Scope—Prosecution case was that twelve packets of charas, total weighing twelve kilograms, was recovered from the secret cavities of the car driven by the accused—Seizing Officer stated in cross-examination that he had detached the fuel tank from the motorcar, while other witness stated in cross-examination that after detaching the fuel tank, it was taken through recovery memo. which was signed by him—Investigating Officer stated that neither the fuel tank was detached from the motorcar nor it was taken into possession nor in that respect there was a recovery memo. on the record—Seizing Officer of the case and Investigating Officer were different persons, however, monogram on each parcel was affixed of third person, without explanation as to whose name the said monogram was prepared and whether any official by the said name was ever posted in the police station, such divergence appearing on the face of evidence also could not be left unnoticed—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was allowed, in circumstances.

2023  YLR  408   PESHAWAR-HIGH-COURT

MUHAMMAD SAJJAD VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Benefit of doubt—Prosecution case was that twelve packets of charas, total weighing twelve kilograms, was recovered from the secret cavities of the car driven by the accused—Record showed that the alleged recovery was not made from personal possession of the accused rather it was made from the fuel tank, fixed in the motorcar—Neither the vehicle was registered in the name of accused, nor there was any documents, which could show any nexus with him, nor there was any receipt through which the motorcar was given to him on rent—According to the contents of FIR, the recovery was effected from the motorcar, while report/opinion was sought by the Investigation Agency from the Motor Registering Authority/Forensic Science Laboratory with regard to motorcar through applications—No report/opinion of either of the vehicle was available and that in whose name the vehicle was registered, therefore, in view of the said discrepancy, false implication of the accused in the case by letting off the real culprits by the police could not be ruled out—Patrol-tank from which the illegal stuff was allegedly recovered was neither produced before the court nor it was exhibited to confirm as to whether it was having the capacity to contain such a huge quantity of narcotics, which aspect of the case also made the story of prosecution doubtful—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was allowed, in circumstances.

2023  YLR  289   PESHAWAR-HIGH-COURT

ADNAN GUL VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Non-submission of Forensic Science Laboratory Report—Effect—Prosecution case was that twenty kilograms heroin was recovered from the secret cavities of the vehicle of accused persons—Perusal of the record would show that in the case in the present case the prosecution had not produced original Forensic Science Laboratory Report whereunder the representative samples, separated from the recovered stuff, had been found to be of heroin—Original Forensic Science Laboratory Report was statedly misplaced and as such its duplicate was produced in evidence—Record showed that there was no such material which could show that the duplicate copy of the Forensic Science Laboratory Report was produced by the Officials of the concerned Laboratory and likewise the duplicate copy so produced before the court had also not been signed/attested by the Chemical Examiner or the Chemical Expert nor by the Director of the Laboratory— No application was available on the case file moved by the prosecution seeking permission to produce secondary evidence regarding the misplaced original Forensic Science Laboratory Report—Production of duplicate of the original Forensic Science Laboratory Report could not be considered as secondary evidence and same on no count could be relied upon for recording conviction of the accused—None from the Forensic Science Laboratory had appeared before the Trial Court verifying genuineness of the duplicate so produced before it—Circumstances established that the prosecution had not proved its case through cogent and reliable evidence—Appeal against conviction was allowed, in circumstances.

2023  YLR  289   PESHAWAR-HIGH-COURT

ADNAN GUL VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Recovery was not effected from the spot—Effect—Prosecution case was that twenty kilograms heroine was recovered from the secret cavities of the vehicle of the accused persons—Record showed that the recovery was effected near Motorway Interchange wherefrom the Anti Narcotics Force Officials brought the vehicle along with the accused persons to Peshawar and in the Police Station of Anti Narcotics Force at Peshawar the report was lodged and the recovery was effected from the vehicle—Scribing murasila was not sent at the place of recovered had put the prosecution case under heavy doubts as to its accuracy as contained in the FIR—Though for not conducting the legal proceedings on the spot and for bringing the vehicle along with the contraband and the accused to Police Station Anti- Narcotics Force, Peshawar, the complainant had given security reasons for the same but said reason was of no help to the prosecution as the complainant had received information in advance at Peshawar regarding the smuggling of contraband to Karachi from Peshawar—Complainant had sufficient time to take proper security measures which he did not do—According to the FIR, there were about more than dozen of Anti-Narcotics Force Officials with the complainant and as such in view of that heavy contingent of Anti Narcotics Force Officials there should not have been any imminent danger or any issue of law and order situation for the complainant to act on the spot—In addition to the above, the complainant could have asked for help from police of the nearby Police Station which too he did not do—Circumstances established that the prosecution had not proved its case through cogent ad reliable evidence—Appeal against conviction was allowed, in circumstances.

2023  YLR  289   PESHAWAR-HIGH-COURT

ADNAN GUL VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Quantity of witnesses—Scope—Prosecution case was that twenty kilograms heroin was recovered from the secret cavities of the vehicle of the accused persons—Record showed that out of the 13 Anti Narcotics Force Officials, who were with the complainant on the spot, only two had been cited and produced in support of the prosecution case as its witnesses—Though the prosecution was not bound to produce all those Officials who participated in some operation as its witnesses but when in a case maximum punishment provided was of death or imprisonment for life then in that case production of maximum number of witnesses available on the scene were to be produced for their evidence so that case against the accused could be proved beyond any reasonable doubt—Circumstances established that the prosecution had not proved its case through cogent and reliable evidence—Appeal against conviction was allowed, in circumstances.

2023  PCrLJ  154   PESHAWAR-HIGH-COURT

NAVEED DAUD VS State

Ss. 9(c) & 35—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4—Trafficking of narcotics—Dispatch of sample for test or analysis—Appreciation of evidence—Benefit of doubt—Scope—Accused was convicted for having been apprehended while trafficking thirty six kilograms of charas in his motorcar—Evidence revealed that neither motorcar was registered in his name nor a driving license was taken into possession from him—Material discrepancies existed in the statements of prosecution witnesses which also gave a hint that the prosecution case was not free from doubt—All three important witnesses of the prosecution viz, complainant, Investigating Officer and marginal witness to the recovery memo. were oblivious as to departure from the police station and arrival back to the police station nor there were any written diaries in that respect—Complainant also showed his ignorance on certain material points—Samples were delivered in the Forensic Laboratory after a delay of about five days whereas the same were required to have been sent to the Forensic Laboratory within 72 hours of its seizure as required by R. 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001—Tests on samples were carried out by the Chemical Examiner, who was not qualified to be termed as a Government Analyst within the meaning of S. 35 of the Control of Narcotic Substances Act, 1997 and the rules framed thereunder, thus, he was so declared with retrospective effect—Conviction rendered by the Special Court was set aside—Accused was acquitted of the charge—Appeal against acquittal was allowed, in circumstances.

2023  MLD  373   PESHAWAR-HIGH-COURT

MUHAMMAD SAEED VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Benefit of doubt—Statements of witnesses—Inconsistency—Prosecution case was that fifty kilograms of charas in fifty packets were recovered from secret cavities of the car of the accused persons—Record showed that the Investigating Officer and complainant were not consistent with regard to the arrival of Investigating Officer to the spot as the former admitted in his cross examination that he conducted investigation from 1600 hours till 1700 hours however, the complainant had admitted that the Investigating Officer arrived on the spot after 2230 hours—Prosecution also did not establish case against accused/front seater as none of the witnesses had uttered a single word with regard to conscious knowledge of the said accused in respect of the availability of contraband in the vehicle in question—Paramount duty of the prosecution was to lead a trust worthy evidence to enable the court to believe that the accusations made against the accused were just, trust worthy and did not create even a single doubt to bring home the charges against him/them—Circumstances established that the prosecution had been unable to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was allowed, in circumstances.

2023  MLD  373   PESHAWAR-HIGH-COURT

MUHAMMAD SAEED VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Benefit of doubt—Chemical analysis—Delay of eight days in sending the samples for analysis—Scope—Prosecution case was that fifty kilograms of charas in fifty packets were recovered from secret cavities of the car of the accused persons—According to the Forensic Science Laboratory Report the samples were received there on eighth day of recovery whereas, according to the statement of Seizing Officer, the same were separated for analysis on the day of occurrence with a delay of 08 days without any explanation—Mohrrar of the Police Station had also admitted during his cross examination that he sent the samples after a delay of about 08 days however, nothing for its sending late to the Forensic Science Laboratory had been put forward to be relied upon—Even no plausible explanation had been furnished by the Seizing Officer or by the Investigating Officer to the effect that the samples remained in safe custody from the date of registration of the FIR till its receipt in the Forensic Science Laboratory therefore, safe custody of parcels of samples had not proved by the prosecution in the case, which was mandatory requirement of the law—Statements of Seizing Officer as well as Investigating Officer were silent regarding the safe custody of the samples—Circumstances established that the prosecution had been unable to prove its case against the accused beyond any shadow of doubt— Appeal against conviction was allowed, in circumstances.

2023  MLD  373   PESHAWAR-HIGH-COURT

MUHAMMAD SAEED VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Benefit of doubt—Safe custody and safe transmission of samples from the police station to the Forensic Science Laboratory—Scope—Prosecution case was that fifty kilograms of charas in fifty packets were recovered from secret cavities of the car of the accused persons—Record showed that the samples from the police station to Forensic Science Laboratory for its analysis had been handed over to Constable but neither he had been cited as witness on complete challan nor he had been examined to support the version of prosecution regarding the safe transmission of the charas to the Forensic Science Laboratory—By not producing the material witness by the prosecution, there existed no chain to prove the safe custody of the samples to the Forensic Science Laboratory—Missing chain created serious doubts in the authenticity and credibility of the Forensic Science Laboratory Report—Circumstances established that the prosecution had been unable to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was allowed, in circumstances.

2023  MLD  373   PESHAWAR-HIGH-COURT

MUHAMMAD SAEED VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Benefit of doubt—Prosecution case was that fifty kilograms of charas in fifty packets were recovered from secret cavities of the car of the accused persons—According to the murasila and statement of Seizing Officer, he recovered 50 packets of charas weighing 50000/-grams (50 KGs) grams from the secret cavities of the vehicle in question but he had only mentioned weighment of two packets i.e. 1000/1000 whereas, failed to mention weighment of remaining 48 packets—Circumstances established that the prosecution had been unable to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was allowed, in circumstances.

2023  YLRN  71   PESHAWAR-HIGH-COURT

SAJJAD KHAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence— Benefit of doubt— Safe transmission of the representative samples to the laboratory—Scope—Prosecution case was that fifty packets of charas total weighing sixty kilograms in two sacks were recovered from the possession of the accused persons—Though, Forensic Science Laboratory Report was in positive but the same too was of no avail to the prosecution because there was a question mark as to safe transmission of the representative samples to the laboratory as neither ‘rahdari’ receipt was available on record nor its receipt number was mentioned in the application drafted for sending the samples to the Laboratory—Also lack of necessary protocols on the Forensic Science Laboratory Report regarding the tests applied for as required under S. 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, which was mandatory was another loophole which rendered the Forensic Science Laboratory Report unreliable—Accused were acquittal, in circumstances.

2023  YLRN  71   PESHAWAR-HIGH-COURT

SAJJAD KHAN VS State

1984. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Admission of accused before the police—Scope—Prosecution case was that fifty packets of charas total weighing sixty kilograms in two sacks were recovered from the possession of the accused persons—Admittedly, the recovery was not effected from the direct possession of the accused rather it was made from the passenger bus—Record showed that the sacks containing the alleged charas were lying on the seat of the passenger bus for which the two brothers, i.e., the present accused and the acquitted co-accused, were booked—As to who had placed these sacks on the seat was a mystery which remained unveiled not only during the course of investigation but also during the course of trial—Though, as per contents of murasilla, one of the accused had admitted ownership of the sacks but it was neither acceptable to the human experience that a person keeping some incriminating substance in a sack would ever own it and that too when it was detected by the police—Such statement of the accused being a statement before the police was not admissible in view of Art. 38 of Qanun-e-Shahadat, 1984.

2023  YLRN  71   PESHAWAR-HIGH-COURT

SAJJAD KHAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Contradictions in the statements of witnesses—Scope—Prosecution case was that fifty packets of charas total weighing sixty kilograms in two sacks were recovered from the possession of the accused persons—Complainant stated that the name of the accused was not mentioned on the sacks while recovery witness stated that name of the accused was mentioned on the sacks—Again, neither daily diary as to departure of the Seizing Officer from the police station to the spot was available on record nor statements of the Police Official of the concerned police station present on the spot were recorded—Record showed that there were unconformable contradictions in the statements of witnesses which made the story of the prosecution doubtful—Accused were acquittal, in circumstances.

2023  YLRN  36   PESHAWAR-HIGH-COURT

ZAKI ULLAH VS State

S.9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Contradictions in the statements of witnesses—Scope—Prosecution case was that 55 packets of charas pukhta weighing 55000 grams concealed in secret cavities made beneath the floor of the vehicle of accused were recovered—Perusal of the available record would show that the Seizing Officer/ Complainant had shown recovered huge quantity of contraband i.e. 55 KGs charas (pukhta) from the vehicle being driven by the accused at the relevant time—Pertinent aspect of the case which had blurred the prosecution case was the fact that recovery witness/ Constable who while appearing before the Court admitted in his cross-examination that the secret cavity was opened through mechanic, who was called by the S.H.O. whereas the complainant stated that he himself had opened the secret cavity with the help of tools on the spot—Said contradiction in the statements of the complainant and the marginal witness to the recovery memo. was not so slight in nature to be ignored as both the witnesses had advanced a stance which was quite different from each other on very important aspect of the case—Cavity was opened by a mechanic then in that situation the mechanic was to be examined being a material witness who had not been produced—In addition to that,another pronounced aspect of the case was that the Seizing Officer in his cross-examination had stated that till arrival of the Investigating Officer to the spot he was present in the radius of 10 paces from the spot and when the Investigation Officer reached there he proceeded to the spot whereas the Investigation Officer in his cross-examination had stated that when he reached the spot the complainant and witnesses were not present there and he called them—Circumstances established that the prosecution had not proved its case through cogent and reliable evidence—Appeal against conviction was allowed.

2023  YLRN  36   PESHAWAR-HIGH-COURT

ZAKI ULLAH VS State

S.9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Scope—Prosecution case was that 55 packets of charas pukhta weighing 55000 grams concealed in secret cavities made beneath the floor of the vehicle of accused were recovered—No material was on case file to show that who took the accused to the police station from the spot—Though the complainant had stated that before arrival of the Investigation Officer he had sent murasila and the accused to the police station through a Constable but when Duty Officer/ ASI appeared before the Court stated that he had only received the murasila sent by the complainant through a Constable and incorporated its contents into FIR—Other witness appeared before the Court and stated that complainant brought the case property and the vehicle to the police station and he made relevant entries in the prescribed register but that witness was silent about bringing of the accused in the police station by the Constable—Had the accused been taken to the police station by the complainant through a Constable then it could have been so reflected from the statements of the referred witnesses which was not the case in hand which situation rather supported the defense plea whereby the accused had alleged that he was arrested from Ocha Wala stop at the instigation and connivance of co-accused—Besides, recovery witness in his cross-examination had stated that the secret cavities were opened on the pointation of informer, who was present on the spot—When the secret cavities were pointed out to the complainant by the informer who was present on the spot then in that eventuality his statement was to be recorded as by then his role was changed from that of his being an informer into a witness—Circumstances established that the prosecution had not proved its case through cogent and reliable evidence—Appeal against conviction was allowed.

2023  YLR  2654   LAHORE-HIGH-COURT-LAHORE

SHAKEEL-UR-REHMAN VS State

40. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.5 & 6—Transportation of narcotics— Report of Government Analyst—Result of test or analysis—Prosecution case was that 40.800 kilograms charas was recovered from secret cavity of the car driven by accused—Forensic report reflected that details of protocols of tests had not been provided therein in the spirit of R. 6 of the Rules, 2001—Any report failing to describe in it the details of the full protocols applied for the test would be inconclusive, defective, unreliable and would not meet the evidentiary presumption attached to a report of the Government Analyst under S. 36(2) of the Act, 1997—In the forensic report it was simply mentioned that the submitted samples were identified to contain charas—Rule 6 of the Rules, 2001 made it imperative on an analyst to mention result of sample analyzed with full protocols applied thereon along with other details in the report issued for test/analysis by the Laboratory—Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of reasonable doubt—Appeal against conviction was accordingly allowed.

2023  PCrLJ  1806   LAHORE-HIGH-COURT-LAHORE

AZIZ KHAN VS State

22. 9(c)—High Court (Lahore) Rules and Orders, Vol. III, Chapt. 24, Part-B, R. 14-H—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Report of Forensic Science Laboratory not exhibited—Effect—Prosecution case was that four packets of charas weighing 10 kilograms and 200 grams was recovered from the car of the accused—Perusal of the record available on the file reflected that on 22.01.2019, Moharrar handed over sample parcels to the complainant for its submission to the office of Forensic Science Agency, which were deposited there on 23.01.2019—Report of Forensic Science Agency, in that regard, was prepared on 15.02.2019—Though, said report had been annexed with the record of the Trial Court, however, it was not exhibited during the course of trial—Statement of prosecutor dated 17.05.2019 was made before the Court without oath wherein it was incorporated that report of Forensic Science Agency was tendered in evidence—However, original report of Forensic Science Agency available with the record of the Trial Court reflected that it was never exhibited—Exhibit meant a document exhibited for the purpose of being taken into consideration in deciding some question or other in respect of the proceeding in which it was filed—Rule 14-H, Part-B, Chapter-24, Volume III of the High Court (Lahore) Rules and Orders provided a self-explanatory procedure for exhibiting a document to be read in evidence, which had been blatantly overlooked in the present case by the Trial Court—In the present case, undeniably, the report of Forensic Science Agency could not be exhibited during the course of trial, therefore the same could not be taken into consideration to maintain conviction of the accused—When no report of Forensic Science Agency could be exhibited during the course of trial to be read in evidence, recovery of entire narcotic substance allegedly recovered from the accused became inconsequential, thus, prosecution case fell to the ground—Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt—Appeal against conviction was allowed accordingly.

2023  PCrLJ  1720   LAHORE-HIGH-COURT-LAHORE

SHAHZEB VS State

13. 9(c)—Transportation of narcotics—Appreciation of evidence—Benefit of doubt—Contradictions in statement of official witness—Prosecution case was that 33 maunds crushed dodas of post were recovered in 35 toras and two boras from the truck, driven by the accused—As per prosecution story, on 13.05.2014 at 08:00 a.m. complainant along with other contingents of the police halted the truck at picket near a Chowk and apprehended accused along with his co-accused (since PO) and upon search of the truck 33 maunds crushed poppy “Dodaas”, which were lying in 35 toras and 02 boras (bags), were recovered—Noticeable that complainant/Investigating Officer had prepared complaint on 13.05.2014 at 09:30 a.m. whereas during his cross-examination, he had stated that it took 5 to 6 hours in weighing and sampling the contraband—If complainant/Investigating Officer in weighing and sampling process of contraband took time 5 to 6 hours then, such mentioned proceedings would be completed between 1:00 p.m. to 2:00 p.m. then how it was possible that without weighing and sampling the recovered contraband detail of same could be mentioned prior to the time in the complaint at 09:30 a.m.—In such way, it was evident from the prosecution evidence that all the proceedings of recovery as well as registration of FIR were completed within a period of one hour and 55 minutes—Said contradictory versions taken by the prosecution witness, who was complainant as well as Investigating Officer of the case was not minor in nature rather it touched the root of the case and badly damaged the case of the prosecution and was also sufficient to create dent in the prosecution case—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was accordingly allowed.

2023  PCrLJ  1720   LAHORE-HIGH-COURT-LAHORE

SHAHZEB VS State

1. 9(c)—Transportation of narcotics—Appreciation of evidence—Safe custody and safe transmission of samples to the Forensic Science Laboratory not established—Benefit of doubt—Prosecution case was that 33 maunds crushed dodas of post were recovered in 35 toras and two boras from the truck, driven by the accused—In the trial, it was essential for the prosecution to establish through cogent and convincing evidence that the alleged contraband was seized from the possession of the accused and was kept in safe custody in the Malkhana at police station and thereafter samples separated from each tora/bora of contraband were sent to the office of Chemical Examiner for analysis but there was no explanation for prosecution’s failure to establish safe custody of recovered contraband—Samples so deposited in the office of Chemical Examiner could not be tagged with samples taken from the seized substance from the possession of the accused—Thus, no evidence was available to connect the report of Chemical Examiner with the substance that was seized from the possession of the accused—In that view of the matter the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of the Chemical Examiner without the same being tampered with or replaced while in transit—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was accordingly allowed.

2023  PCrLJ  1720   LAHORE-HIGH-COURT-LAHORE

SHAHZEB VS State

Ss. 9(c) & 36—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.5 & 6—Transportation of narcotics—Appreciation of evidence—Reports of Government Analysts—Result of test or analysis—Protocols applied not mentioned—Effect—Prosecution case was that 33 maunds crushed dodas of post were recovered in 35 toras and two boras from the truck, driven by the accused—Report of Chemical Examiner was vague since it did not show the nature of protocols observed and test applied, hence, there was violation of Rr. 5 & 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001—In the instant case, required test was not applied on the basis of which Chemical Examiner had concluded that the samples sent to him for chemical examination contained crushed poppy heads—Chemical Examiner had failed to provide the details that how much quantity, he had tested—When the report was not prepared in the prescribed manner then it might not qualify to be called a report in the context of S. 36 of the Control of Narcotic Substances Act, 1997 and such report of Chemical Examiner would lose its sanctity and it could not be relied upon for the purposes of conviction—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was accordingly allowed.

2023  PCrLJ  1720   LAHORE-HIGH-COURT-LAHORE

SHAHZEB VS State

22. 9(c)— Qanun-e-Shahadat (10 of 1984), Art. 129(g)—Transportation of narcotics—Appreciation of evidence—Benefit of doubt—Withholding material evidence—Important witness given up—Prosecution case was that 33 maunds crushed dodas of post were recovered in 35 toras and two boras from the truck, driven by the accused—Record showed that although examination-in-chief of Head Constable/recovery witness was recorded on 22.08.2016 but the cross-examination upon said witness was reserved for 27.08.2016 as lawyers were observing strike—Subsequently, the prosecution gave up said witness being unnecessary—According to the prosecution case, said witness accompanied the complainant along with other contingent of the Police Station and in his presence alleged contraband was recovered from the truck driven by the accused—After preparing complaint, complainant sent the said witness along with complaint for registration of formal FIR at Police Station—In such situation, examining of the said witness, who carried the complaint to the Police Station for registration of crime report, was necessary but said witness was given up by the prosecution without any cogent reasoning—Thus, adverse inference in the light of Art. 129(g) of the Qanun-e-Shahadat, 1984 could be drawn, which casted serious doubt upon the story of the prosecution—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was accordingly allowed.

2023  PCrLJ  1479   LAHORE-HIGH-COURT-LAHORE

SAQIB RAMZAN VS State

Ss. 9(b) & 21—Criminal Procedure Code (V of 1898 ), Ch. XXII-A, S. 265-C—Possession of narcotic drugs—Appreciation of evidence—Prejudice of the police official (complainant)—Search warrant from the Court, non-obtaining of—Police Officer (ASI) on whose complaint FIR was registered also assumed the role to investigate the case—Legality—Accused/appellant was already in custody of the police when a habeas corpus petition for his recovery was moved, however, Police asserted that he was arrested in connection with another FIR—Complainant alleged that the accused under custody, during interrogation made disclosure of 504 grams of Charas present in his house—Held, that there was no bar for a police officer to become complainant of the case and also to investigate it, unless prejudice was not pleaded by the accused facing trial or that such police officer was having some grudge or vengeance against the accused—Rancour or hostility of the police officer could be perceived from record based on some confidence inspiring substance—If complainant claimed that the appellant got recovered narcotic substance and that too during the investigation of an earlier registered criminal case, then as a token of fair investigation, he should have let some other police officer probe the matter but, in the present case, he himself performed each and every step of investigation from drafting of complaint to forwarding of accused to the judicial custody—Thus, he (complainant) ensured that no other police officer of higher rank got opportunity to dilate upon the genuineness or otherwise of the acclaimed recovery proceeding and violated the principle of natural justice which laid down that no one should be a judge of his own case—Alleged disclosure was made by the accused within four walls of concerned Police Station wherein some other police officials of higher ranks were also present—Complainant also did not endeavor to get search warrant from the concerned Court—Departure from the necessity of S. 21 of Control of Narcotic Substances Act, 1997 (‘CNSA, 1997’) on the part of Searching Officer, without any justifiable reason, in special statute, could not be appreciated—Where a thing was provided in law to be done in a particular manner it had to be done in that manner and if not so done the same would be unlawful—Said principle arose out of maxim “a communi observentia non est recedendum”, which became more inflexible in cases arising out of special enactments like CNSA, 1997—Such facts convincingly demonstrated the malice of the complainant which was so deep rooted that he thought it better to investigate the case himself for appropriately grilling the appellant—Such sinister design lead one to believe that narcotics substance was planted to wreck vengeance against the appellant which arose out of a habeas corpus petition filed on his (accused’s) behalf—Registration of a criminal case upon a complaint prepared at crime scene was also an important factor, and onus to prove the same also rested upon the shoulders of the prosecution, however, police official who transmitted the draft of complaint to the Police Station was neither cited as witness in report under S. 173, Cr.P.C., nor appeared in the dock during the trial—From the absence of any explanation for withholding the said evidence, Court leaned to hold that probably he was not willing to become a false witness—Record revealed that appellant, who was indicted as a juvenile, was not supplied with copies of documents mentioned in S. 265-C, Cr.P.C., at least seven days prior to framing of charges—Said non-compliance by the Trial Court would amount to vitiating the whole trial—Conflict/contradictions was also found in statements of recovery witnesses regarding place where the recovery memo was signed by the respective witnesses and number of officials of police contingent—Prosecution failed to establish the guilt of accused with regard to the alleged recovery of 504 grams of Charas beyond any shadow of doubt—High Court set aside conviction and sentence passed by the Trial Court and appellant stood acquitted—Appeal was allowed, in circumstances.

2023  PCrLJ  1103   LAHORE-HIGH-COURT-LAHORE

ABDUL HAMID VS State

1. 9(c)—Qanun-e-Shahadat (10 of 1984), Arts. 22 & 129(g)—Transportation of narcotics—Appreciation of evidence—Un-natural conduct—Test identification parade—Withholding best evidence—Scope—Prosecution case was that the accused was driving a vehicle when he was stopped by the police; that shortly thereafter another vehicle was stopped by the police; that the accused claimed that the second vehicle was with him; that search of the second vehicle led to recovery of 12000 grams of heroin and that while the police was busy in searching the second vehicle, the accused along with an unknown driver decamped from the spot in the second vehicle—Swift escape of the accused was not only strange but also improbable as well, when seen in the context that the police despite having vehicle in their possession still made no effort to launch a pursuit—No contraband was recovered from the vehicle seized from the accused—Physical and facial features of the accused were neither mentioned in the crime report nor in the statements of recovery witnesses—Accused was arrested after about 08 months of the incident but no endeavour was made to hold identification test proceedings—Witnesses such as the constable who had brought the complaint to the police station for registration of FIR, the constable who was entrusted with execution of warrant and proclamation, the constable who had driven the seized vehicle to the police station and the Sub-Inspector who had arrested the accused, though essentially required to be examined during trial were not produced before the Trial Court—Multiple doubts had emerged from the prosecution evidence, the benefit of which had to be extended to the accused—Appeal was accepted and the accused was acquitted of the charge, in circumstances.

2023  PCrLJ  139   LAHORE-HIGH-COURT-LAHORE

AHMAD ALI VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 426—Possession of narcotics—Suspension of sentence—Scope—Accused persons sought suspension of their sentences awarded to them under S. 9(c) of Control of Narcotic Substances Act, 1997 pending their appeal before the Supreme Court—From the perusal of leave granting order by the Supreme Court, prima facie, it appeared that leave was granted to reappraise the evidence on the dimension of safe custody of the recovered substance as well as safe transmission of samples to the office of Chemical Examiner—Improvements and contradictions pointed out in the prosecution case were the facts which were pressed into service by the counsel for the accused persons, which had persuaded the Supreme Court to grant leave—Probability could not be ruled out that the prosecution case might fall through in the long run—Accused persons having been arrested in 2011 were languishing in jail ever since—Continued incarceration for indefinite period of time would not serve any useful purpose for the prosecution’s case—Sentence of the accused persons was suspended pending decision of their appeal before the Supreme Court—Petition was allowed.

2023  YLRN  58   LAHORE-HIGH-COURT-LAHORE

KHALID MEHMOOD VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Safe custody—Scope—Accused was alleged to have been found in possession of 1200 grams of charas—Moharrar stated that he gave the sample parcel to sample-bearer for its onward transmission to the Forensic Laboratory but the sample-bearer while appearing in the witness box did not say a single word regarding handing over of the sample parcel to him by Moharrar or deposit of the same in the Forensic Laboratory, therefore, it was not determinable as to where the sample parcel remained after its delivery to sample-bearer—Safe custody of sample-parcel was not proved beyond the shadow of doubt which had created serious dent in the prosecution case—Appeal against conviction was allowed, in circumstances.

2023  YLRN  58   LAHORE-HIGH-COURT-LAHORE

KHALID MEHMOOD VS State

1. 9—Possession of narcotics—Standard of proof—Scope—Control of Narcotic Substances Act, 1997, provides stringent punishments, therefore, the proof has to be construed strictly and the benefit of the slightest doubt in the prosecution case must be extended to the accused.

2023  YLRN  25   LAHORE-HIGH-COURT-LAHORE

HAIDER ALI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—-Prosecution case was that 5324 grams of Heroin and 2680 grams of Charas were recovered from the possession of accused—Evidently, accused had been convicted on two counts, one for recovery of Heroin and other for possessing the Charas—High Court observed that in case of various type of contraband there was no distinction under S. 9 of the Act, however the discretion had been left at the court for quantum of sentence if quantity did not exceed 10 kilograms, who, keeping in view the kind of recovered material, its effect on human lives and society or other considerations as the case may be, had to ascertain the amount of punishment and that sentencing was not an easy process but difficult stage for a judge and was an attempt to juggle the objects of various sizes while walking on a tight rope which was being shaken at both ends—Court felt no difficulty to hold that in case of recovery of contraband of more than one kind, it would be considered single recovery against an offender with accumulative weight—Although various contentions had been raised by defence like that chain of safe custody had not been proved and summoning of record of ‘Roznamcha’ of the Police Station with reference to report but as the Trial Court had committed serious illegality while convicting the accused on two counts therefore, all concerned to the matter were in agreement that it was a case of remand—Appeal was allowed by setting aside the impugned judgment and case was remanded to the Trial Court with direction to rewrite the judgment after giving a proper right of hearing to both the sides.

2023  YLR  2622   KARACHI-HIGH-COURT-SINDH

BACHANDO VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Non-association of private persons—Accused was found in possession of two kilograms charas—Record showed that though police party had advanced information about the availability of present accused along with charas but they did not bother to take with them any private person either from the place of information or from the place of incident to witness the event—Judicial approach has to be conscious in dealing with the cases in which testimony hings upon the evidence of Police Officials alone—Provisions of S. 103, Cr.P.C. are not attracted to the cases of personal search of the accused in such cases—However, where alleged recovery is made on a road (as had happened in the present case), omission to secure independent mashirs, particularly, in the case of spy information can not be brushed aside lightly by the court—No explanation on record why the independent witness had not been associated in the recovery proceedings—Appeal against conviction was allowed, in circumstances.

2023  YLR  2622   KARACHI-HIGH-COURT-SINDH

BACHANDO VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Discrepancies and flaws in the evidence of witnesses—Accused was found in possession of two kilograms charas—Record showed that there were discrepancies and flaws in the evidence of complainant and mashir of arrest and recovery—Complainant in his cross-examination had admitted that after receiving spy information, he had not sent any fake customer for purchasing charas from the accused—Said witness admitted that he had mentioned in FIR that accused was selling charas in open and at that time no purchaser of charas was available—No currency notes were recovered from the present accused at the time of his arrest—Said witness admitted that he was complainant as well as Investigating Officer in the present case—Mashir/Head Constable in his cross-examination had deposed that he did not know exact time of receiving spy information by SHO—Accused was selling charas in banana crop while the complainant deposed that accused was selling charas in an open way—Said witness further deposed that place of arrest and recovery subsisted near link road and they had not sent any fake purchaser to accused for verifying spy information—All the said discrepancies and lacunas in the case of prosecution led to the conclusion that perhaps the incident had not taken place in the fashion as stated in the FIR—Appeal against conviction was allowed, in circumstances.

2023  YLR  2622   KARACHI-HIGH-COURT-SINDH

BACHANDO VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Safe custody and safe transmission of samples to the Forensic Science Laboratory not established—Effect—Accused was found in possession of two kilogram charas—According to the statement of complainant, he recovered the narcotics from accused and prepared the memo of arrest and recovery and deposited the same in Malkhana—Report of Laboratories and Chemical Examiner revealed that the charas was received by hand in the office through Head Constable after the delay of five (05) days but evidence on the record was silent that where the same remained for five (05) days—Similarly, evidence regarding safe transmission of alleged recovered narcotics to the laboratory for chemical analysis was also missing—If safe custody of narcotics and its transmission through safe hands was not established on the record, same could not be used against the accused—Chain of custody or safe custody and safe transmission of narcotics begins with seizure of the narcotic by the law enforcement officer, followed by separation of the representative samples of the seized narcotic, storage of the representative samples with the law enforcement agency and then dispatching thereof to the office of the Chemical Examiner for examination and testing—Such chain of custody must be safe and secure—Record of present case showed that it was not a safe transit of narcotics case—Appeal against conviction was allowed, in circumstances.

2023  YLR  2622   KARACHI-HIGH-COURT-SINDH

BACHANDO VS State

1. 9(c)—Possession of narcotics—Police witnesses, testimony of—No doubt, police witnesses are as good as other independent witnesses and conviction can be recorded on their evidence, but their testimony should be reliable, dependable, trustworthy and confidence worthy—If such qualities are missing in their evidence, no conviction can be passed on the basis of evidence of police witnesses.

2023  YLR  2369   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ARIF VS State

9. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Accused was found in possession of ten packet of opium weighing 9800 grams and four packets of charas weighing 5000 grams—According to the prosecution, accused had a black bag in his hand, however the said bag found no further description either in the memo of arrest and recovery, or in the FIR—Further description of the same however came forth in the deposition of complainant who, while being cross-examined, admitted that the bag was in fact of navy blue colour and had “Old is Gold” inscribed on it—As per the prosecution case, the bag contained 10 packets of opium which were weighed and found to be 9.8 kilograms while 4 packets of charas were also found within the bag which were weighed and found to be 5 kilograms—Said packets did not find any description as to the nature or content of the outer coverage of the same; whether they were wrapped in plastic, paper or cloth—Such omissions struck at the core of the prosecution case as the same would have otherwise helped establish that the case property available in Court was in fact the same—Departure entry through which the complainant had left along with his subordinates to patrol also found no mention in the FIR, in the memo of arrest and recovery, in the memo of site inspection and not even in the 161, Cr.P.C. statement of the witness—Complainant and recovery witness had signed over the sealed parcels, however the same signatures were missing as was admitted by recovery witness during his deposition—Circumstances established that the prosecution had failed to prove the charge against the accused beyond reasonable shadow of doubt—Appeal against conviction was allowed accordingly.

2023  YLR  2369   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ARIF VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Safe custody of narcotics—Non-production of incharge malkhana—Contradictory statements— Effect—Accused was found in possession of ten packet of opium weighing 9800 grams and four packets of charas weighing 5000 grams—Whole case property was sealed on the spot and brought back to the police station where, as per the deposition of complainant police official, he kept the case property in safe custody—Complainant then admitted that such entries for recovered case properties were kept in the relevant Register and that he recorded the same, but did not produce it before the Court—Contradicting the complainant, however, Investigating Officer deposed that he received case property for investigation—Investigating Officer also deposed that he did not make an entry of case property in the Register nor did he confirm from the Head Mohrar regarding keeping the entry in Register—Investigating Officer too admitted to not producing the entry from the Register—As per his deposition, Investigating Officer received the case property whereas the complainant of the case deposed that he had kept the same in safe custody—Both the said prosecution witnesses had contradicted each other on a crucial aspect of the case and due to their failure by not producing the entry from the Register nor examining the in-charge of said malkhana/Head Muharar, it could not be ascertained whether case property was even kept safe during the intervening period in which it was not sent to the Chemical Examiner—Safe custody from recovery to dispatch to the Chemical Examiner could not be proven especially when the same was delayed by two whole days without the possibility of tampering—In failing to disprove the possibility of tampering and establishing safe custody, recovery of the narcotics could not be used against the accused despite there being a positive Chemical Examiner’s report—Circumstances established that the prosecution had failed to prove the charge against the accused beyond reasonable shadow of doubt—Appeal against conviction was allowed accordingly.

2023  YLR  2310   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AALAM BROHI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Complainant acting as Investigating Officer—Legality—Prosecution case was that 45 kilograms charas was recovered from the possession of the accused—Defence objection that the complainant himself had acted as Investigating Officer in the present case and all the witnesses were ANF Officials, was of no help to him, as there was no bar in the law for a complainant not to act as Investigating Officer of the case—In the present case, no proof of enmity or ill-will with the complainant or the other witnesses had been brought on the record, thus, in the absence thereof, the competence of prosecution witnesses being ANF Officials was rightly believed by trial Court—Moreover, a procedural formality could not be insisted at the cost of completion of an offence—If an accused was otherwise found connected then mere procedural omission and even allegation of improper conduct of investigation would not help the accused—Even otherwise, mere status of one as an official would not alone prejudice the competence of such witness until and unless he was proved to be interested, who had a motive to falsely implicate an accused or had previous enmity with the person involved—By the flux of time in the case of transportation or possession of narcotics, technicalities of procedural nature or otherwise should be overlooked in the larger interest of the country if the case stands otherwise proved—Approach of the Court should be dynamic and pragmatic, in approaching true facts of the case and drawing correct and rational inference and conclusions while deciding such type of cases—Circumstances established that the prosecution had proved its case against the accused beyond the shadow of any reasonable doubt—Appeal against conviction was dismissed, in circum-stances.

2023  YLR  2310   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AALAM BROHI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Non-issuance of search warrant—Not consequential—Prosecution case was that 45 kilograms charas was recovered from the possession of the accused—Control of Narcotic Substance Act, 1997 as a special law was enacted mainly to curb the menace of narcotics in the country—Requirement to obtain a search warrant could be dispensed with in a case where a quick action was required to be taken and it would be difficult to obtain a search warrant; where due to paucity of time there was apprehension of narcotics being removed or culprits having the chance to escape from the place of incident—Law only required that an officer not below the rank of Sub-Inspector shall enter into a building, place premises or conveyance—In the present case, Inspector/SHO while patrolling on receipt of spy information arrived at the pointed place and recovered 45 kilograms of Charas from the sack carried by the present accused—Circumstances established that the prosecution had proved its case against the accused beyond the shadow of any reasonable doubt—Appeal against conviction was dismissed, in circumstances.

2023  YLR  2310   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AALAM BROHI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Police witnesses, testimony of—Prosecution case was that 45 kilograms charas was recovered from the possession of the accused—So far as the evidence of ANF Officials was concerned, they were competent and their evidence could not be brushed aside merely on the pretext that they were ANF Officials—Said witnesses had furnished straight-forward and confidence-inspiring evidence and nothing had come on record to show that they had deposed against the accused maliciously or out of any animus and it could not be believed that the ANF Officials would plant or foist such a huge quantity (45 K.Gs) of narcotics substance against present accused with their own resources—Statement of official witness could not be discarded merely for the reason that they were ANF/Police Officials—Circumstances established that the prosecution had proved its case against the accused beyond the shadow of any reasonable doubt—Appeal against conviction was dismissed, in circumstances.

2023  YLR  2310   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AALAM BROHI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Prosecution case was that 45 kilograms charas was recovered from the possession of the accused—Record showed that on spy pointation, accused was apprehended by complainant when he was sitting over a white colour sack—Complainant asked the people available at the place of the incident to join the arrest and recovery proceedings but they refused to act as mashir due to fear for their lives at the hands of drug sellers—Finally, in the presence of mashir Head Constable and a Police Constable, the arrest and recovery proceedings started—On search, the sack carried by accused was found containing charas in foil pack packets in shape of slabs which on weighing came out to be 45 kilograms, out of which 10/10 grams from each slabs were segregated as samples while the remaining was also sealed separately—Accused was thereafter arrested under memo of arrest and recovery was prepared in presence of mashirs—Complainant produced arrival and departure entries which showed the movement of the ANF Officials—Complainant had also produced all certain relevant documents pertaining to the case, as such, the accused having prior knowledge had been found responsible for selling huge quantity of charas to the customer in a sack carried by him—Circumstances established that the prosecution had proved its case against the accused beyond the shadow of any reasonable doubt—Appeal against conviction was dismissed, in circumstances.

2023  YLR  2310   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AALAM BROHI VS State

24. 9(c)—Possession of narcotics—Appreciation of evidence—Safe custody and safe transmission of charas to the Office of Chemical Examiner established—Prosecution case was that 45 kilograms charas was recovered from the possession of the accused—Defence objected that the prosecution had failed to prove safe custody and safe transmission of Charas to the office of Chemical Examiner—Record showed that in the cross-examination of witnesses, no such question had been put by the defence that there was tampering with the case property at Police Station or during its transmission to the Chemical Laboratory—Charas was recovered from the present accused on 24.09.2014 and it was dispatched through Head Constable/mashir of recovery to the Chemical Laboratory on 25.09.2014—Said witness produced the report of Chemical Examiner—Inspector/SHO handed over the said parcel to mashir/Head Constable who deposited the same in the office of the Chemical Examiner and the report confirmed that the parcel was received on 25.09.2014 from the said mashir, therefore, it could safely be said that the safe chain of custody of the recovered narcotics was not compromised at all—Circumstances established that the prosecution had proved its case against the accused beyond the shadow of any reasonable doubt—Appeal against conviction was dismissed, in circumstances.

2023  YLR  2310   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AALAM BROHI VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotics—Appreciation of evidence—Prosecution case was that 45 kilograms charas was recovered from the possession of the accused—-Defence had alleged that no private witness was associated at the time of recovery, which was violation of provisions of S. 103, Cr.P.C.—Validity—Section 25 of Control of Narcotic Substances Act, 1997, had excluded the applicability of S. 103, Cr.P.C., in narcotics cases—Applicability of S. 103, Cr.P.C., in the narcotic cases had been excluded and the non-inclusion of any private witness was not a serious defect to vitiate conviction—Complainant in his examination-in-chief had admitted that he asked people available at spot to join the arrest and recovery proceedings but they had refused to do so due to fear for their lives at the hands of drug sellers—Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt—Appeal against conviction was dismissed accordingly, in circumstances.

2023  YLR  1997   KARACHI-HIGH-COURT-SINDH

SARWAR SHAH VS State

94. 9(c)—Criminal Procedure Code (V of 1898), S. 342—Possession of narcotics—Appreciation of evidence—Defence plea—Scope—Prosecution case was that 94.700 kilograms of charas lying in four bags was recovered from the vehicle driven by accused—Record showed that the accused had put up a strong defence of false implication on account of enmity with the Anti Narcotics Force Officials which he stuck throughout during cross-examination of witnesses, during his S.342, Cr.P.C statement, whilst giving evidence under oath and by calling two defence witnesses—Brother of the accused gave evidence that the accused was taken away by armed men from his estate agency and he lodged such a report at Police Station which was duly exhibited—Other defence witness of Police Station gave evidence that he received the aforesaid application/report which was entered in the police station register and the application duly received by him was exhibited—First Information Report which was lodged against the accomplices of the Anti Narcotics Force Officer had also been exhibited which when all taken together revealed that the Anti Narcotics Force had a serious enmity with the accused—Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt—Appeal against conviction was allowed accordingly.

2023  YLR  1997   KARACHI-HIGH-COURT-SINDH

SARWAR SHAH VS State

94. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Scope—Prosecution case was that 94.700 kilograms of charas lying in four bags was recovered from the vehicle driven by accused—No registration book or any other proof was exhibited that the accused owned or had any connection with the car which he was allegedly driving and the narcotics were recovered from—No driving license was recovered from the accused and according to his defence he could not even drive—Although it was unusual for such a large amount of narcotics to be foisted, a photo of the boot of the car from where the narcotics were recovered on no one’s pointation revealed that the boot also contained a CNG bottle which left very little room to stash such a large quantity of narcotics—Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt—Appeal against conviction was allowed accordingly.

2023  YLR  1997   KARACHI-HIGH-COURT-SINDH

SARWAR SHAH VS State

94. 9(c)—Possession of narcotics—Appreciation of evidence—Safe custody of the recovered substance—Scope—Prosecution case was that 94.700 kilograms of charas lying in four bags was recovered from the vehicle driven by accused—Safe custody of the narcotic from the time of its recovery from the time of it being sent for chemical report was in some doubt as allegedly the narcotic was deposited in the malkhana for two days but no malkhana entry was produced and the person in charge of the malkhana was not examined—Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt—Appeal against conviction was allowed accordingly.

2023  YLR  1926   KARACHI-HIGH-COURT-SINDH

FALAK SHER VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Dispatch of sample for test or analysis—Safe custody—Prosecution case was that 18 kilograms charas was recovered from the vehicle of the accused persons—Record showed that 18 samples, each weighing 10 grams, sent to Chemical Laboratory for analysis were the representative samples obtained from each packet, numbering 18—Each sample represented each packet weighing 1 Kg and such calculation means that the accused persons were responsible for entire property recovered from them—Defense arguments that accused persons would be held responsible only for 180 grams of charas were not sustainable—Accused persons nowhere had contested the originality or genesis of the samples to be part of the whole property—Further, in order to boost the case, and establishing safe custody of the property, an entry recording deposit of recovered property in Malkhana had been produced—Entrustment of samples to Police Constable/witness and its delivery by him in laboratory for analysis was also established through his evidence—Chemical report evinced that property was received in the office next day in a sealed condition, found satisfactory, through a Police Constable—Detail of protocol applied to test the samples had also been incorporated in the report—Safe custody of the property and safe transmission of the samples thus were verified without any trace of reasonable doubt—No inconsistency, minor or major, in either deposit of the property in Malkhana or receipt of the samples in laboratory had been pointed out by defense undermining the intrinsic worth of the prosecution case against accused persons—Circumstances established that the prosecution had succeeded to prove case against the accused persons beyond a reasonable doubt—Appeal against conviction was dismissed accordingly.

2023  YLR  1926   KARACHI-HIGH-COURT-SINDH

FALAK SHER VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Prosecution case was that 18 kilograms charas was recovered from the vehicle of the accused persons—Investigating Officer had described the incident in detail, constituting the raiding party after receipt of spy information, nabbing accused persons, recovery of two bags containing the charas from their car, preparation of memo and registration of the case against them—Investigating Officer also produced relevant entries recording movement of the raiding party on the fateful day, FIR, memo of place of incident, recovery and arrest of the accused persons in addition to the entry documenting deposit of property in Malkhana—Recovery witness had fully supported the Investigating Officer over all such features of the case—Police Constable, entrusted with samples for delivery in Chemical Laboratory, had expressed the facts in his deposition and had produced relevant entry recording such movements besides identifying the receipt of delivery of samples obtained by him from laboratory—All the said three witnesses had been subjected to a considerable cross-examination but defense had not succeeded in creating any dent in their evidence—Said witnesses had stood the ground on all salient features of the case without wavering—Evidence of said witnesses was confidence inspiring and in absence any record of animosity with the accused persons, it could not be discarded—Circumstances established that the prosecution had succeeded to prove its case against the accused persons beyond a reasonable doubt—Appeal against conviction was dismissed accordingly.

2023  YLR  1754   KARACHI-HIGH-COURT-SINDH

LAL MUHAMMAD VS State

1. 9(c)—Possession of narcotic—Testimony of police officials, reliance upon—Scope—Police Officials are as good witnesses as any other private witness and their evidence is subject to same standard of proof and principles of scrutiny as applicable to any other category of witnesses—In absence of any animus, infirmity or flaw in their evidence, the testimony of Police Officials could be relied upon without demur.

2023  YLR  1754   KARACHI-HIGH-COURT-SINDH

LAL MUHAMMAD VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Defence plea—Scope—Prosecution case was that 176 kilograms of charas 250 packets were recovered from the truck of the accused persons—Accused had claimed to be arrested after the complainant allegedly took a bribe and let the real culprits go from whom 300 to 350 kilograms were recovered—No animus had been proved against the prosecution or the complainant—Nothing was brought on record to suggest that the accused persons were not arrested by the police from the truck as per the evidence—Mere assertion of accused persons that they had been involved falsely in the narcotics case, in absence of any tangible evidence, was of no consequence nor did it create any doubt about the recovery of narcotics—One of the accused persons even admitted his presence in the said truck and claimed that he was delivering wheat bags in his statement under S. 342, Cr.P.C.—Accused persons were bound to establish the defence plea of false implication through their arrest prior to the actual incident as agitated by them through adducing tangible evidence and such allegation in absence of sound evidence, could not be considered in view of Art. 121 of Qanun-e-Shahadat, 1984—Circumstances established that the prosecution had undoubtedly proven the guilt of the accused persons beyond reasonable shadow of doubt—Appeal against conviction was dismissed accordingly.

2023  YLR  1754   KARACHI-HIGH-COURT-SINDH

LAL MUHAMMAD VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Prosecution case was that 176 kilograms of charas within 250 packets were recovered from the truck of the accused persons—Record showed that the prosecution witnesses had provided an uninterrupted chain of facts ranging from arrest and seizure to forensic analysis of the contraband—Witnesses were in comfortable unison on all the salient features regarding interception of the charas as well as all the steps taken thereafter—All the witnesses had unanimously deposed that the case property in Court was the same and were never cross-examined on that point by the defence at the time of trial—Three prime witnesses of the prosecution case, complainant, mashir of arrest and recovery had deposed that both the accused persons had pointed out the shelves in the truck and they were never cross-examined on that aspect of the case either—As such, the prudent presumption here would be that both the accused persons were well aware of the contents of the truck and the presence of narcotics—Contraband so recovered from the accused persons had been proved by examining the complainant, mashir of arrest and recovery and an independent witness—Circumstances established that the prosecution had undoubtedly proven the guilt of the accused persons beyond reasonable shadow of doubt—Appeal against conviction was dismissed accordingly.

2023  YLR  1754   KARACHI-HIGH-COURT-SINDH

LAL MUHAMMAD VS State

12. 9(c)—Possession of narcotics—Appreciation of evidence—Safe custody—Scope—Prosecution case was that 176 kilograms of charas 250 packets was recovered from the truck of the accused persons—Entire quantity was sent to the Chemical Examiner—Narcotic samples were sent through Police Official who had been examined and deposed in all respects as to how and when he delivered the parcels received by him—Initial information was received by the complainant and the accused were arrested on the same day at about 12.15 p.m.—Sample for examination was sent to the Chemical Examiner within 72 hours of the alleged recovery—Police Official to explain the delay in sending the narcotics to the Chemical Examiner deposed that he was given copy of FIR and other relevant documents along with case property consisting of charas in six bags and truck involved in the incident—On the same date said witness went to the Office of Chemical Examiner for depositing the case property but until then the Office of Chemical Examiner had been closed as such he returned back—Office of the Chemical Examiner was closed due to the holidays and witness deposited the case property with his office—Seals on the parcels delivered were found intact by the Chemical Examiner too who noted that condition of the seals was satisfactory which further proved safe custody and transmission of the same—Report of Chemical Examiner available on record fully corroborated the evidence of all the prosecution witnesses—All necessary protocols were followed in the Chemical Examiner’s Report which further supported the prosecution case—Circumstances established that the prosecution had undoubtedly proven the guilt of the accused persons beyond reasonable shadow of doubt—Appeal against conviction was dismissed accordingly.

2023  YLR  1639   KARACHI-HIGH-COURT-SINDH

HIMAT GUL PATHAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Contradictions in the statements of witnesses—Scope—120 kilograms of charas was allegedly recovered from the trailer of accused persons—Allegedly, there were contradictions in the evidence of two witnesses, in which, one stated that the contraband was weighed through computerized scale and the other said that the contraband was weighed through manual scale—Said contradiction was very minor and immaterial, as the recovery of the contraband had not been denied—Recovery in the case was very huge and it could not be imagined that somebody would foist such huge quantity of charas on somebody just to incarcerate a stranger without any enmity with him/them—Accused did not claim that they had any enmity with the complainant or any of the constables—Minor discrepancies in the evidence of raiding party did not shake their trust-worthiness—Circumstances established that the prosecution had proved its case beyond any shadow of doubt—Appeal was dismissed accordingly.

2023  YLR  1639   KARACHI-HIGH-COURT-SINDH

HIMAT GUL PATHAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Huge quantity of narcotics was recovered—Scope—120 kilograms of charas was allegedly recovered from the trailer of accused persons—Plea was not taken nor was there any hint that the accused persons had made any claim of enmity against the police—Perusal of the statements of the accused persons recorded under S. 342, Cr.P.C., revealed that bald statements had been made by the accused persons to the effect that they were innocent and that nothing was recovered from them and that charas had been foisted upon them—However, accused persons had not stated anything in their statement with regard to the factum as to how that huge quantity of the charas was put in the trailer—As per the deposition of the complainant and the eye-witness, the contraband was recovered from secret cavities found in the truck trailer—Sole purpose of the movement of the trailer was to transport the contraband in its hidden/secret cavities—Perusal of the cross-examination of the prosecution witnesses revealed that no question was asked about the presence of secret/ hidden cavities in the trailer—Perusal of cross-examination of the witnesses further revealed that a suggestion was put to them that the accused persons were involved in the case due to non-payment of illegal gratification—Plea would have been considered if the recovery of contraband was not in such a huge quantity which, could not possibly be foisted by police on any person just to ask for illegal gratification—Besides, the samples of charas so recovered from them were sent to Chemical Examiner and the report of chemical examiner came in positive—Circumstances established that the prosecution had proved its case beyond any shadow of doubt—Appeal was dismissed accordingly.

2023  YLR  1639   KARACHI-HIGH-COURT-SINDH

HIMAT GUL PATHAN VS State

7. 9(c)—Possession of narcotics—Appreciation of evidence—Safe custody and transmission of samples of the narcotic from the police to the Chemical Examiner—Scope—120 kilograms of charas was allegedly recovered from the trailer of accused persons—No delay in sending the samples to the Chemical Examiner, as the incident occurred at about 7.20 a.m., while the samples were sent to Chemical Examiner on the same day—No question arose of any doubt about safe transmission of the samples of the recovered substance to the office of the Chemical Examiner—Circumstances established that the prosecution had proved its case beyond any shadow of doubt—Appeal was dismissed accordingly.

2023  YLR  1452   KARACHI-HIGH-COURT-SINDH

VICKY KUMAR VS State

1. 9(c)— Control of Narcotic Substances (Government analysts) Rules, 2001, Rr. 4 & 5—Possession of Narcotic—Appreciation of evidence—Delay in sending samples of contraband for chemical analysis—Effect—Scope—Prosecution case was that 35 kilograms of charas was recovered from the possession of the accused—Said rules were directory in nature and did not render the recovered sample untrustworthy if the span of 72 hours had passed—Furthermore, per the Chemical Examiner’s Report, the seals were received in intact condition which ruled out any question of tampering—Circumstances established that the prosecution had successfully proved its case against the accused, which did not require any interference—Appeal against circumstances being meritless was dismissed, in circumstances.

2023  YLR  1452   KARACHI-HIGH-COURT-SINDH

VICKY KUMAR VS State

S.9(c)—Possession of Narcotics—Appreciation of evidence—Prosecution case was that 35 kilograms charas was recovered from the possession of the accused—Record showed that the prosecution witnesses were in comfortable unison on all the salient features regarding interception of the huge quantity of charas as well as all the steps taken subsequently—In the present case the whole recovered property was sealed and sent to the Chemical Examiner, which was found being sufficient exercise to constitute forensic proof—At the time of arrest, the accused was standing with a nylon plastic bag, wherein 35 kilograms of charas was secured, therefore, he was responsible for the same alleged to have been secured from his possession—Report of Chemical Examiner available on the record fully corroborated the evidence of both the prosecution witnesses, whose stand was in nexus with the Chemical Examiner’s Report—Record transpired that charas was secured from the nylon bag and the recovered case property was separately sealed and sent to Chemical Examiner, who did not find any tampering with the sealed parcel of the contraband so recovered from the accused, hence, the Report of Chemical Examiner came in positive—All the witnesses had deposed that the case property in court was the same and they were at no point cross-examined on the same point by the defence—Charas so recovered from the possession of the accused had been proved to the extent of realization—Circumstances established that the prosecution had successfully proved its case against the accused, which did not require any interference—Appeal against conviction being meritless was dismissed, in circumstances.

2023  YLR  1452   KARACHI-HIGH-COURT-SINDH

VICKY KUMAR VS State

1. 9(c)—Possession of Narcotic—Minor contradictions in the statements of witnesses—Scope—Technicalities of procedural nature or otherwise were to be overlooked in the larger interest of the country—If the case stood proved the approach of the court was to be dynamic and pragmatic, in approaching true facts of the case and drawing correct and rational inferences and conclusions while deciding such type of cases—Court was to consider the entire material as a whole and if it was convinced that the case was proved then conviction be recorded notwithstanding any procedural defect—Minor discrepancies in the evidence of the raiding party do not shake its trustworthiness.

2023  YLR  1452   KARACHI-HIGH-COURT-SINDH

VICKY KUMAR VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Defence plea—Scope—Prosecution case was that 35 kilograms of charas was recovered from the possession of the accused—Accused alleged that charas had been foisted upon him due to his refusal to pay extort money—Said plea appeared to be afterthought, which had rightly been disbelieved by the Trial Court—Accused had failed to produce any valid proof regarding his claim—Accused examined his mother, her mere statement was of no consequence to the prosecution case—Accused was arrested by the Police Officials and from his exclusive possession a huge quantity of charas was recovered and it would be enough for a prudent mind to realize that such huge quantity of contraband could not be foisted upon the accused—Circumstances established that the prosecution had successfully proved its case against the accused, which did not require any interference—Appeal against conviction being meritless was dismissed, in circumstances.

2023  YLR  1276   KARACHI-HIGH-COURT-SINDH

ZAHEER VS State

1. 9(c)—Possession of 3000 grams of charas—Appreciation of evidence—Benefit of doubt—Delay of five days in sending the sample for analysis—Scope—Prosecution case was that 3000 grams of charas was recovered from the possession of accused—Sample was received with the delay of five days and the same delay had not been explained by the prosecution, which made the entire case of prosecution doubtful—Circumstances established that all the evidence produced by the prosecution was completely unreliable and utterly deficient to prove the charge against the accused beyond reasonable doubt—Appeal against conviction was allowed, in circumstances.

2023  YLR  1276   KARACHI-HIGH-COURT-SINDH

ZAHEER VS State

1. 9(c)—Possession of 3000 grams charas— Appreciation of evidence—Benefit of doubt—Contradictions in the statements of witnesses— Scope—Prosecution case was that 3000 grams of charas was recovered from the possession of accused—Record showed that there were contradictions in the statements of witnesses, which established that the complainant and mashir were not the true eye-witnesses of the arrest of the accused and recovery of charas from his possession—Conduct of the Investigating Officer also seemed to be doubtful—In the presence of the contradictions in the evidence of complainant, mashir and Investigating Officer, it was clear that the prosecution failed to prove its case against the accused beyond shadow of reasonable doubt and the recovery had not been satisfactorily proved—No implicit reliance could be placed in such contradictions in the evidence of prosecution witnesses—Circumstances established that all the evidence produced by the prosecution was completely unreliable and utterly deficient to prove the charge against the accused beyond reasonable doubt—Appeal against conviction was allowed, in circumstances.

2023  YLR  1276   KARACHI-HIGH-COURT-SINDH

ZAHEER VS State

1. 9(c)—Possession of 3000 grams of charas— Appreciation of evidence—Benefit of doubt—Safe custody—Non-production of incharge malkhana— Effect—Prosecution case was that 3000 grams of charas was recovered from the possession of accused—Admittedly the incharge of malkhana where the property was kept in safe custody was not examined during the investigation nor was he produced before the Trial Court for recording his evidence to prove the safe custody of the recovered narcotic—Non examination of incharge of the malkhana in whose possession the property was, fatal to the case of prosecution and made it doubtful—Circumstances established that all the evidence produced by the prosecution was completely unreliable and utterly deficient to prove the charge against the accused beyond reasonable doubt—Appeal against conviction was allowed, in circumstances.

2023  YLR  1264   KARACHI-HIGH-COURT-SINDH

ABDUL JABBAR VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51—Transportation of narcotic—Bail, refusal of—Scope—Accused was arrested with charas weighing 2470 grams—Mashirnama of arrest and recovery supported the alleged recovery of the narcotic drug—Alleged narcotic was dispatched to the Chemical Examiner and such chemical report was positive and also supported the prosecution version—Narcotic was recovered from the conscious possession of the accused—Accused person’s claim of false implication was an issue that could not be attended without going beyond the scope of tentative assessment, a venture prohibited by law—Guilt or innocence of the accused was yet to be established as it would depend on the strength and quality of the evidence produced/to be produced by the prosecution and defense before the Trial Court—Accused was not entitled to the concession of post-arrest bail—Bail application was dismissed, in circum-stances.

2023  YLR  448   KARACHI-HIGH-COURT-SINDH

HANEEF VS State

17. 9(c)— Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5—Possession of ten kgs of Charas—Appreciation of evidence—Delay in sending the sample for analysis—Effect—Prosecution case was that ten kilograms Charas was recovered from the possession of the accused—Evidence of prosecution witnesses showed that Charas was recovered from the possession of accused on 17.10.2016 but it was received by the office of Chemical Examiner on 02.11.2016—Inordinate delay in dispatch had created serious doubt regarding the genuineness of such report—Report of Chemical Examiner was deficient report as it did not contain any details whatsoever of any protocol adopted at the time of chemical analysis of the recovered substance—Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt—Appeal against conviction was allowed, in circumstances.

2023  YLR  448   KARACHI-HIGH-COURT-SINDH

HANEEF VS State

1. 9(c)—Possession of ten kgs of charas— Appreciation of evidence—Benefit of doubt—Prosecution case was that ten kilograms of charas was recovered from the possession of the accused—Record showed that on spy information, accused was arrested at Railway Crossing—No private person at Railway Crossing was associated as a mashir in the case to witness recovery proceedings—Complainant had deposed that he had prepared the mashirnama of arrest and recovery on torch light—Said light was not produced before the Trial Court—Case property was kept in Malkhana, till it was dispatched to the chemical laboratory—Neither the Head Mohrer of Malkhana hadbeen examined nor such entry had been produced before the Trial Court to establish the safe custody of charas at Malkhana—Police Constable who had transmitted charas to the Chemical Examiner had also not been examined by the prosecution—Non-examination of such material witness would cause dent to the prosecution case—Said circumstances had created a reasonable doubt in the prosecution case—Appeal against conviction was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

2023  YLR  321   KARACHI-HIGH-COURT-SINDH

LAL BUX alias LAL VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Chemical analysis —Delay of nine days in sending samples of contraband for analysis—Effect—Allegedly, 1100 grams of charas was recovered from the possession of accused—According to the statement of complainant, he recovered the narcotic from accused and prepared the memo. of arrest and recovery and deposited the same in Malkhana—Report of Director Laboratories and Chemical Examiner revealed that the charas was received by hand in the office through HC after the delay of nine days but evidence on the record was silent that where the same remained for nine days—Evidence regarding safe transmission of alleged recovered narcotics to the laboratory for chemical analysis was also missing—Circumstances established that the prosecution had failed to prove its case against the accused—Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

2023  YLR  321   KARACHI-HIGH-COURT-SINDH

LAL BUX alias LAL VS State

1. 9(c)— Testimony of Police Officials, reliance upon—Scope—No doubt, police witnesses were as good as other independent witnesses and conviction could be recorded on their evidence, but their testimony should be reliable, dependable, trustworthy and confidence worthy—If such qualities were missing in their evidence then no conviction could be passed on the basis of evidence of police witnesses—In the present case, number of contradictions in between the evidence of prosecution witnesses were available which could not be easily brushed aside—Conduct of the police showed that investigation had been carried out in a casual and stereotype manner without making an effort to discover the actual facts/truth—Circumstances established that the prosecution had failed to prove its case against the accused—Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

2023  YLR  321   KARACHI-HIGH-COURT-SINDH

LAL BUX alias LAL VS State

1. 9(c)—Possession and transportation of charas—Appreciation of evidence—Safe custody of samples and their transmission to the Chemical Examiner—Significance—If safe custody of narcotics and its transmission through safe hands was not established on the record, same could not be used against the accused—Chain of custody or safe custody and safe transmission of narcotics begin with seizure of the narcotic by the Law Enforcement Officer, followed by separation of the representative samples of the seized narcotic, storage of the representative samples with the law enforcement agency and then dispatch thereof to the office of the Chemical Examiner for examination and testing—Said chain of custody must be safe and secure—Such was because the Report of Chemical Examiner enjoyed very critical and pivotal importance under the Act and the chain of custody ensured that correct representative samples reached 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 or its representative samples made the report of the Chemical Examiner failed to justify conviction of the accused—Prosecution, therefore, was to establish that the chain of custody had remained unbroken, safe, secure and indisputable in order to be able to place reliance on the report of the Chemical Examiner—Facts of the present case revealed that the chain of custody had been compromised at more than one occasion, therefore, reliance could not be placed on the report of the Chemical Examiner to support conviction of the accused—All such factors suggested the false implication of accused in this case which could not be ruled out—Record showed that the charas was recovered from possession of accused and was kept in Malkhana but it had not been proved that it was a safe transit case—Circumstances established that the prosecution had failed to prove its case against the accused—Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

2023  YLR  321   KARACHI-HIGH-COURT-SINDH

LAL BUX alias LAL VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Non-association of private persons—Scope—Allegedly, 1100 grams of charas was recovered from the possession of accused—Record showed that accused was arrested from main street but no independent persons of the locality had been associated in recovery proceedings—Only the Police Officials who were subordinates to the complainant were made as mashirs of arrest and recovery proceedings—Provisions of S. 103, Cr.P.C., were not attracted to the cases of personal search of accused in narcotic cases but where the alleged recovery was made on a street as had happened in the present case and the people were available there, omission to secure independent mashirs, particularly, in police case could not be brushed aside lightly by the court—No explanation on record why no any independent person from the vicinity had been joined to witness the recovery proceedings—Circumstances established that the prosecution had failed to prove the guilt against the accused beyond any reasonable doubt—Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

2023  YLR  242   KARACHI-HIGH-COURT-SINDH

AYAZ HUSSAIN VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotics—Appreciation of evidence—Search to be made in presence of witnesses—Scope—Prosecution case was that 4000 grams charas was recovered from the plastic bag of the accused—Provisions of S.103, Cr.P.C were not attracted to the cases of personal search of accused in narcotic cases but where the alleged recovery was made on a road (as had happened in the present case) and the people were available there, omission to secure independent mashirs, particularly, in the case of spy information could not be brushed aside lightly by the court—Police, in such circumstances was, to take video grabs of such occurrences or wear body-cameras—Prime object of S.103, Cr.P.C. was to ensure transparency and fairness on the part of police during course of recovery, curb false implication and minimize the scope of foisting of fake recovery upon accused—No explanation was on record as to why the independent witness had not been associated in the recovery proceedings though the complainant party had much prior information about the presence of accused along with charas—Incident was a day time occurrence and the possibility of persons at the place of incident could not be ruled out—Circumstances established that prosecution had failed to prove its case against the accused—Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

2023  YLR  242   KARACHI-HIGH-COURT-SINDH

AYAZ HUSSAIN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Safe custody and transmission of samples of the narcotic from the police to the chemical examiner was not established—Effect—Prosecution case was that 4000 grams charas was recovered from the plastic bag of the accused—Statement of complainant, revealed that he recovered the narcotic from accused and prepared the memo of arrest and recovery and deposited the same in Malkhana—Report of Chemical Examiner revealed that the alleged charas was received by hand in the office through Police Constable after the delay of two days and safe custody of the chars at Malkhana and its safe transit during that intervening period had not proved at trial—Admittedly, the chain of custody or safe custody and safe transmission of narcotics begin with seizure of the narcotic by the law enforcement officer, followed by separation of the representative samples of the seized narcotic, storage of the representative samples with the law enforcement agency and then dispatched thereof to the office of the Chemical Examiner for examination and testing—Said chain of custody must be safe and secure—Such was because the Report of Chemical Examiner enjoyed very critical and pivotal importance under Act, 1997and the chain of custody ensured that correct representative samples reached 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 or its representative samples made the report of the Chemical Examiner failed to justify conviction of the accused—Prosecution, therefore, was to establish that the chain of custody had remained unbroken, safe, secure and indisputable in order to be able to place reliance on the report of the Chemical Examiner—Facts of revealed that the chain of custody had been compromised at more than one occasion, therefore, reliance could not be placed on the report of the Chemical Examiner to support conviction of the accused—All such factors suggested the false implication of accused in the case which could not be ruled out—Circumstances established that prosecution had failed to prove its case against the accused—Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

2023  YLR  242   KARACHI-HIGH-COURT-SINDH

AYAZ HUSSAIN VS State

S.9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Delay of two days in sending the sample for analysis—Effect—Prosecution case was that 4000 grams charas was recovered from the plastic bag of the accused—Record showed that the charas was recovered from possession of accused and was kept in Malkhana and the same was sent to Chemical Examiner after the delay of two days, hence it had not been proved that it was a safe transit case—Circumstances established that prosecution had failed to prove its case against the accused—Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

2023  YLR  242   KARACHI-HIGH-COURT-SINDH

AYAZ HUSSAIN VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotics—Appreciation of evidence—Contradictions in the statements of witnesses—Scope—Prosecution case was that 4000 grams charas was recovered from the plastic bag of the accused—Material contradictions existed in the evidence of the prosecution case such as mashir in his cross-examination had deposed that private vehicle was of black colour 2-D corolla car, however, in his same statement said witness deposed that private car was arranged from friend of complainant and it was white colour car—Investigating Officer of the case had admitted in his cross-examination that his signature on mashirnama of place of incident was different from his signature on statement under S.161, Cr.P.C.—Investigating Officer had not recorded entry in daily diary about his departure from Police Station for inspection of place of incident—Complainant had also contradicted mashir with regard to colour of the private car by saying that it was coure car—Registration number, colour and make of private vehicle was not mentioned in daily entry and FIR and it was grey colour car—Said witness had also admitted by saying that he had not shown place of incident to Investigating Officer—Material contradictions in the evidence of complainant and mashir of arrest and recovery on the material aspects of the case existed—Circumstances established that prosecution had failed to prove its case against the accused—Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

2023  YLR  242   KARACHI-HIGH-COURT-SINDH

AYAZ HUSSAIN VS State

1. 9(c)—Possession of Narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that 4000 grams charas was recovered from the plastic bag of the accused—Record showed that on spy information the accused was arrested from a populated area and the complainant had sufficient time either to take any private mashir from the place where he received spy information or at the place where he arrested the accused and recovered charas from his possession to witness the recovery proceedings but it was not done by him for the reasons best known to him and only the police officials who were subordinates to him were made as mashirs of arrest and recovery proceedings—No customer of purchasing the alleged charas was found at the place of incident—If police could have waited tactfully, some customers might have appeared on the scene, that would have brought some acceptability to police story—Circumstances established that prosecution had failed to prove its case against the accused—Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

2023  YLR  153   KARACHI-HIGH-COURT-SINDH

GHULAM SHABBIR VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Discrepancies—Scope—Prosecution case was that ten kilograms of charas was recovered from the possession of the accused persons—Recovery of charas had been affected from accused while they were coming in a car but owner of the car had not been investigated in the case—As per FIR and the evidence of complainant party, the police party was on motorcycles during the patrolling then from where they got the weighing scale and weighed the case property—In mashirnama the description of property was also not given—Failure on the part of prosecution as the Investigating Officer failed to interrogate or investigate the owner of car—Record showed that complainant party belonging to (RFF), a special force meant for rescue the operation against terrorism hence the question with regard to their competency arose and since they were on motorcycles how it was possible that one accused made his escape good within their site and they even did not chase him—Police Constable was also on patrolling duty and on checking the vehicles but his name did not appear even in the challan sheet—All the said things made the case of prosecution doubtful—As per available record, accused had no previous criminal record—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was allowed, in circumstances.

2023  YLR  153   KARACHI-HIGH-COURT-SINDH

GHULAM SHABBIR VS State

1. 9(c)—Testimony of police officials, reliance upon—Scope—Police witnesses were as good as other independent witnesses and conviction could be recorded on their evidence, but their testimony should be reliable, dependable, trustworthy and confidence worthy—If such qualities were missing in their evidence, no conviction could be passed on the basis of evidence of police witnesses.

2023  YLR  153   KARACHI-HIGH-COURT-SINDH

GHULAM SHABBIR VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic—Appreciation of evidence—Non-association of private witnesses at the time of arrest of accused and recovery of cars—Scope—Prosecution case was that ten kilograms of charas was recovered from the possession of the accused persons—Accused were arrested from thickly populated area and the complainant had sufficient time to call the independent persons of the locality to witness the recovery proceedings but it was not done—Only the Police Officials who were subordinates to the complainant were made as mashirs of arrest and recovery proceedings—Judicial approach had to be conscious in dealing with the cases in which entire testimony hinged upon the evidence of Police Officials alone—Provisions of S.103, Cr.P.C., were not attracted to the cases of personal search of accused in narcotic cases but where the alleged recovery was made on a road (as had happened in the present case) and the people were available there, omission to secure independent mashir, particularly, in the case of spy information could not be brushed aside lightly by the court—No explanation on record as to why the independent witness had not been associated in the recovery proceedings—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was allowed, in circumstances.

2023  YLR  153   KARACHI-HIGH-COURT-SINDH

GHULAM SHABBIR VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Safe custody and safe transmission of samples to the Forensic Science Laboratory not established—Benefit of doubt—Scope—Prosecution case was that ten kilograms of charas was recovered from the possession of the accused persons—According to the statement of complainant, he recovered the narcotics from the accused persons and prepared the memo of arrest and recovery and deposited the same in Malkhana—Report of Director Laboratories and Chemical Examiner revealed that the narcotics were sent to the office through SIP after the delay of two days—Tampering with the case property during that intervening period at Malkhana also could not be brushed aside—Established position was that the chain of custody or safe custody and safe transmission of narcotics begin with seizure of the narcotic by the law enforcement officer, followed by separation of the representative samples of the seized narcotic, storage of the representative samples with the law enforcement agency and then dispatch thereof to the office of the Chemical Examiner for examination and testing—Said chain of custody must be safe and secure because, the Report of Chemical Examiner enjoyed very critical and pivotal importance under the Act and the chain of custody ensured that correct representative samples reached 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 or its representative samples made the report of the Chemical Examiner failed to justify conviction of the accused—Prosecution, therefore, was to establish that the chain of custody had remained unbroken, safe, secure and indisputable in order to be able to place reliance on the report of the Chemical Examiner—Facts of the case revealed that the chain of custody had been compromised at more than one occasion, therefore, reliance could not be placed on the report of the Chemical Examiner to support conviction of the accused—High Court observed that all such factors suggested the false implication of accused persons in the case which could not be ruled out—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was allowed, in circumstances.

2023  PLD  367   KARACHI-HIGH-COURT-SINDH

AITBAR ALI alias BABLU VS State

1. 9(c)—Constitution of Pakistan, Art. 10-A—Possession of narcotic substances—Right of accused to have the recovered narcotics reweighed—Fair trial—Scope—Application was filed by the petitioner/accused, during the trial, to re-weigh the Charas allegedly recovered from him—Trial Court dismissed said application on the basis that the accused had denied the prosecution case and not owned/admitted the case-property—Validity—Accused had a right to a fair trial under Article 10-A of the Constitution; it was his right to move application for re-sending the case-property to the Chemical Examiner for re-examination—When an accused questioned weight of the very narcotic substance showed by the prosecution to have been recovered from him, the Court would be bound to resolve the same before proceeding further in the case—It was not necessary for the accused to admit the property first to gain a right of requesting for re-weighing etc.—Petitioner /accused was essentially challenging the prosecution case over weight of recovered Charas which needed to be resolved for fair dispensation of justice—Trial Court, in the present case, had erred in not appreciating the said aspect of the case—Accused who either had questioned validity of chemical report or weight of the alleged recovered narcotic substance would not be asked first to admit the prosecution case or own the property because if said logic was accepted, there would be no reason/need to either send the property for re-examination or re-weighing/re-measurement—High Court set-aside the impugned order being not sustainable in law and allowed the application of the petitioner/accused directing the Trial Court to re-weigh the Charas allegedly recovered from the accused in the presence of all the parties concerned—Criminal revision was allowed, in circumstances.

2023  PCrLJ  1816   KARACHI-HIGH-COURT-SINDH

Syed ABDUL MANAN VS State

1. 9(c)— Possession of narcotics—Appreciation of evidence—Accused persons were arrested at the spot and a huge quantity of contraband weighing 920 Kilograms (Charas and Opium), packed in 920 packets, was recovered from secret cavities of truck, admittedly driven by the one of the appellants while two appellants were sitting besides him, which had duly been proved by the complainant (Investigation Officer) and had been testified by the other witness/ mashir—It was almost impossible to foist such a huge quantity of narcotics, as such it could not be presumed that they were not in knowledge of such huge quantity of narcotics lying in truck—It could not be said also that two co-accused were travelling in truck-in-question as passengers as a truck was not a public transport vehicle—One of the appellants had admitted in his statement recorded under S. 161 of the Criminal Procedure Code, 1898 that he was owner of the truck-in-question—Witnesses (Police Officials) narrated the story in true manner and remained consistent despite lengthy cross-examination and their testimony could not be shattered—No circumstance suggested alleged false implication of appellants with such a huge quantity of contraband—Prosecution had successfully proved its case against the appellants—Appeals filed by the accused persons were dismissed, in circumstances.

2023  PCrLJ  1816   KARACHI-HIGH-COURT-SINDH

Syed ABDUL MANAN VS State

1. 9(c)—Possession of narcotics– Appreciation of evidence—Allegation against the appellants (three in number) was that a huge quantity of contraband, packed in 920 packets having been placed in secret cavities of truck, was recovered from them—Documentary evidence, duly exhibited by the prosecution, revealed that all the entries as well as Mashirnama of arrest had established the departure and arrival of Police Party to arrest of accused persons, along with huge quantity of contraband, at the spot on the fateful day—Report of the Chemical Examiner was positive showing recovered contraband as Charas and Opium, which (report) further showed that the same was strictly in accordance with the established principles—Though Muharrar of Malkhana was not produced by the prosecution during the evidence, yet the safe custody of contraband for intervening period was proved by the documentary evidence having been duly exhibited in evidence—Even otherwise, such question (non-production of the Muharrar) was not put on the behalf of the appellants (accused persons) to prosecution’s witnesses—Prosecution had successfully proved its case against the appellants—Appeals filed by the accused persons were dismissed, in circumstances.

2023  PCrLJ  1816   KARACHI-HIGH-COURT-SINDH

Syed ABDUL MANAN VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotics—Appreciation of evidence—Huge quantity of contraband, packed in 920 packets having been placed in secret cavities of Truck, was recovered from appellants—Applicability of S. 103 of the Criminal Procedure Code, 1898, regarding association of private person as witness had specifically been excluded by virtue of S. 25 of the Control of Narcotic Substances Act, 1997—Alleged contradictions in the evidence of the prosecution witnesses, relating to raiding party, appeared to be minor in nature, which did not shake their trustworthiness—Prosecution had successfully proved its case against the appellants—Appeals filed by the accused persons were dismissed, in circumstances.

2023  PCrLJ  1816   KARACHI-HIGH-COURT-SINDH

Syed ABDUL MANAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Mala fide of police not proved—Allegation against the appellants (three in number) was that a huge quantity of contraband weighing 920 Kilograms (Charas and Opium), packed in 920 packets having been placed in secret cavities of truck, was recovered from them—In normal circumstances, there was no bar for a police officer to become complainant of the case and also to investigate it unless prejudice was not pleaded by the accused facing trial or if such police officer was having some grudge or vengeance against the accused—Rancor or hostility of the police officer could be perceived from record based on some confidence inspiring substance—Record showed that the appellants had failed to establish any enmity with complainant (Investigation Officer) for alleged false implication in the present crime with such a huge quantity of contraband—Even otherwise, during trial appellants had not moved any application before the competent forum/Court for change of investigation—Prosecution had successfully proved its case against the appellants—Appeals filed by the accused persons were dismissed, in circumstances.

2023  PCrLJ  1662   KARACHI-HIGH-COURT-SINDH

MUKHTIAR ALI VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Non-association of private witnesses—Effect—Prosecution case was that accused was found in possession of 1170 grams of charas—As per FIR the complainant party was on patrolling and during patrolling they had seen the accused standing on the main road having black colour shopper in his hand who was apprehended and recovery of 1170 grams of charas was affected from his possession—Record showed that the accused was arrested from main road which was a populated area and the complainant had sufficient time to call independent persons of the locality to witness the recovery proceedings but it was not done by him for reasons best known to him and only the Police Officials who were subordinates to him were made as mashirs of arrest and recovery proceedings—Judicial approach had to be a conscious in dealing with the cases in which entire testimony hinged upon the evidence of Police Officials alone—Provisions of S. 103, Cr.P.C., were not attracted to the cases of personal search of accused in narcotic cases but where the alleged recovery was made on a road (as had happened in this case) and the people were available there, omission to secure independent mashirs, particularly, in police case could not be brushed aside lightly by the court—No explanation was available on record as to why no any independent person from the vicinity had been joined to witness the recovery proceedings—Circumstances established that the prosecution had failed to prove its case against the accused—Appeal against conviction was allowed, in circumstances.

2023  PCrLJ  1662   KARACHI-HIGH-COURT-SINDH

MUKHTIAR ALI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Discrepancies and contradictions in the statement of witnesses—Effect—Prosecution case was that accused was found in possession of 1170 grams of charas—Record showed that number of contradictions between the evidence of prosecution witnesses were noticed which could not be easily brushed aside—Conduct of the police showed that investigation had been carried out in a casual and stereotype manner without making an effort to discover the actual facts/truth—Record transpired that the Malkhana entry did not have the signature of Malkhana Incharge—Moreover, there were also discrepancies and flaws in the evidence of complainant and mashir of arrest and recovery—Complainant in his cross-examination had admitted that recovery memo did not mention sizes and shapes of the chunks of charas allegedly recovered from the accused person—Said witness further admitted that recovery memo did not bear any inscription—Circumstances established that the prosecution had failed to prove its case against the accused—Appeal against conviction was allowed, in circumstances.

2023  PCrLJ  1662   KARACHI-HIGH-COURT-SINDH

MUKHTIAR ALI VS State

8. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Delay of three days in sending the narcotic for chemical analysis—Effect—Prosecution case was that accused was found in possession of 1170 grams of charas—According to the statement of complainant, he recovered the narcotics from accused on 08.03.2020 and prepared the memo of arrest and recovery and deposited the same in Malkhana—Report of Director Laboratories and Chemical Examiner revealed that the charas was received by hand in the office on 11.03.2020 through Head Constable after the delay of three days but evidence on the record was silent that where the same remained for three days—Circumstances established that the prosecution had failed to prove its case against the accused—Appeal against conviction was allowed, in circumstances.

2023  PCrLJ  1662   KARACHI-HIGH-COURT-SINDH

MUKHTIAR ALI VS State

8. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Safe custody and safe transmission of narcotics to Forensic Laboratory not established—Effect—Prosecution case was that accused was found in possession of 1170 grams of charas—Evidence regarding safe transmission of alleged recovered narcotic to the laboratory for chemical analysis was missing—If safe custody of narcotics and its transmission through safe hands was not established on the record, same could not be used against the accused—Moreover, it was also an established position that the chain of custody or safe custody and safe transmission of narcotics began with seizure of the narcotic by the Law Enforcement Officer, followed by separation of the representative samples of the seized narcotic, storage of the representative samples with the Law Enforcement Agency and then dispatch thereof to the office of the Chemical Examiner for examination and testing—Such chain of custody must be safe and secure—This was because, the Report of Chemical Examiner enjoyed very critical and pivotal importance under Control of Narcotic Substances Act, 1997 and the chain of custody ensured that correct representative samples reached 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 or its representative samples made the report of the Chemical Examiner not reliable to justify conviction of the accused—Prosecution, therefore, had to establish that the chain of custody remained unbroken, safe, secure and indisputable in order to be able to place reliance on the report of the Chemical Examiner—However, the facts of the present case revealed that the chain of custody had been compromised at more than one occasion, therefore, reliance could not be placed on the report of the Chemical Examiner to support conviction of the accused—All such factors suggested the false implication of accused in the case could not be ruled out—Charas was recovered from possession of accused on 08.03.2020 and was kept in Malkhana but it had not been proved that it was a safe transit case—Thus, prosecution had failed to prove that the charas was in safe custody for the said period—Even positive report of the Chemical Examiner would not prove the case of prosecution—Circumstances established that the prosecution had failed to prove its case against the accused—Appeal against conviction was allowed, in circumstances.

2023  PCrLJ  1501   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AYUB VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic—Appreciation of evidence—Prosecution case was that 564 kilograms of charas was recovered from the truck driven by the accused—No doubt, the raiding agency had acted upon a spy information but the complainant in his deposition had disclosed that the information was passed on by his high-ups requiring a prompt action for successful arrest and recovery—For the sake of an immediate response, it was quite comprehensible that a private and independent witness could not be arranged by the raiding party—In view of S. 25 of the Control of Narcotic Substances Act, 1997, the stress by the defence for associating private witness was misconceived—Section 103, Cr.P.C. did not over-ride the statutory provisions of S. 25 of the Act—Mere objection that the witnesses of arrest and recovery belonged to raiding party was not sustainable—Circumstances established that the impugned judgment was based upon proper contemplation and deliberation of the evidence recorded during trial—Appeal against conviction was dismissed accordingly.

2023  PCrLJ  1501   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AYUB VS State

Ss. 9(c) & 27—Possession of narcotics—Appreciation of evidence—Safe custody—Scope—Prosecution case was that 564 kilograms of charas was recovered from the truck driven by the accused—Record reflected that just after completing the process of arrest and recovery, the raiding party directly approached the nearest ANF Police Station, where sufficient facilities for the safe custody of recovered narcotics were available—Accused was locked up after lodgement of FIR and the recovered narcotics were put in the possession of the incharge for keeping safely in the store room—In such a situation, the requirement of S. 27 of the Act was fulfilled, hence, the chain of safe custody from the point of recovery to the facility of ANF was established, which continued during transmission from the ANF store-room to the Chemico-Laboratory where it was received by the officials of the laboratory—Report of Chemical Analyzer showed that the property was received in sealed condition from the same official of the ANF by whom it was transmitted, meaning thereby that the recovered narcotics remained out of harm way from the point of recovery to the laboratory—Chain of safe custody in circumstances remained intact, as such there appeared to be no room for suspicion regarding the report of Chemical Examiner, which was positive—Circumstances established that the impugned judgment was based upon proper contemplation and deliberation of the evidence recorded during trial—Appeal was dismissed accordingly.

2023  PCrLJ  1501   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AYUB VS State

Ss. 9(c) & 36—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Possession of narcotics—Appreciation of evidence—Report of Government Analysts—Protocols/procedure—Scope—Prosecution case was that 564 kilograms of charas was recovered from the truck driven by the accused—Non-compliance of requisite protocol by the chemical laboratory—Scope—Record showed that the report of Government Chemical Examiner was prepared according to the prescribed Form-II chalked out as per mandate of S. 36 of the Act, and Rr. 5 & 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001—All the required parameters mentioned in the Form-II prescribed under the said referred provisions were fully incorporated in the report of Chemical Examiner—Circumstances established that the impugned judgment was based upon proper contemplation and deliberation of the evidence recorded during trial— Appeal against conviction was dismissed accordingly.

2023  PCrLJ  1007   KARACHI-HIGH-COURT-SINDH

ROSHAN ALI VS State

1. 9(c)— Possession of narcotics— Appreciation of evidence—Prosecution case was that seventy five kilograms of charas was recovered from the vehicle of the accused persons—Record showed that the FIR was registered with promptitude giving no time for concoction and the statements of the Police witnesses under S. 161, Cr.P.C. were recorded promptly which were not significantly improved upon by any witness at the time of evidence—Arrest and recovery was made on the spot and the accused were caught red handed with the narcotic by the police whose evidence fully corroborated each other in all material respects as well as the prosecution case—No major contradictions in the evidence of the witnesses was found—Most significantly the narcotic was recovered from the car which was being driven by accused, where the narcotics were on the back seat between two co-accused ladies and as such there was no doubt that all the accused had actual knowledge of the narcotic which was being transported—Car was recovered along with the narcotic—Facts of the case showed that it would be extremely difficult to foist such a large amount of charas—Circumstances established that the prosecution had proved its case beyond reasonable doubt—Appeals against conviction were dismissed, in circumstances—Co-accused/respondent was acquitted on the basis of her young age and immaturity having no choice but to get in the car and her lack of blood relationship with the other accused—Such findings were found to be utterly perverse, arbitrary and completely contrary to the evidence on record—Acquitted accused was 20 years of age at the time of the offence therefore, was certainly old and mature enough to be responsible for her actions—No evidence was on record to show that acquitted accused was forced to accompany the accused in the car and that simply because she was not a blood relative to the other accused did not exonerate her—By the same token/reasoning accused who was not related by blood to co-accused persons should also have been acquitted by the Trial Court—Acquitted accused was a neighbour of the accused and thus had a nexus and a reason to be in the car with them—Appeal against the acquittal of accused was allowed, in circumstance.

2023  PCrLJ  1007   KARACHI-HIGH-COURT-SINDH

ROSHAN ALI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Police Officials as witnesses—Reliance—Scope—Prosecution case was that seventy five kilograms of charas was recovered from the vehicle of the accused persons—Evidence of a police witness was as reliable as any other witness provided that no enmity existed between him and the accused—General unsubstantiated enmity had been alleged against the police, which was not worthy of any reliance—Despite lengthy cross-examination none of the witnesses’s evidence was shaken—Evidence of the police witnesses reliable, being trustworthy and confidence inspiring was believable, which was corroborative in all material respects—Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused persons—Appeals against conviction were dismissed, in circumstances.

2023  PCrLJ  1007   KARACHI-HIGH-COURT-SINDH

ROSHAN ALI VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotics—Appreciation of evidence—Non-association of private witnesses—Scope—Prosecution case was that seventy five kilograms of charas was recovered from the vehicle of the accused persons—Although no independent mashir was associated with the arrest and recovery of the accused, however it had come in evidence that no private person was available to become an independent mashir at the time of arrest and recovery—Even otherwise S. 103, Cr.P.C was excluded for offences falling under the Control of Narcotic Substances Act, 1997 by virtue of S. 25 of that Act—Circumstances established that the prosecution had proved its case beyond reasonable doubt against the accused persons—Appeals against conviction were dismissed, in circumstances.

2023  PCrLJ  1007   KARACHI-HIGH-COURT-SINDH

ROSHAN ALI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Delay in sending samples for chemical analysis—Scope—Prosecution case was that seventy five kilograms of charas was recovered from the vehicle of the accused persons—Record showed that there was no delay in sending the samples for report of chemical analysis which turned out to be positive with all required protocols being followed—Recovered narcotic was kept in safe custody from the time of its recovery to the time when samples were taken for chemical analysis—No suggestion of tampering with the same had even been made—Narcotic was sealed on the spot, remained sealed in the malkhana for which a malkhana entry had been produced before being transported to the chemical examiner by Head Constable under seal and who was examined as to safe custody and the narcotic reached the Chemical Examiner in a sealed condition as per the chemical report—Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused persons—Appeals against conviction were dismissed, in circumstances.

2023  PCrLJ  843   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ALI JAVED VS State

1. 9(c)—Transportation of narcotics—Appreciation of evidence—Scope—Accused was alleged to have been apprehended while transporting 360 kilograms of charas—Prosecution witnesses had deposed in correlation with each other in terms of seizure and forensic analysis of the contraband—Charas was secured from the secret cavity of the truck trailer and the recovered case property was separately sealed from 18 kilograms representative sample which was promptly sent to the Chemical Examiner for analysis, who had not found any tampering with the sealed parcel of the narcotic substance—Report of Chemical Examiner was also in positive—Prosecution had proven the guilt of the accused beyond any shadow of doubt—Appeal against conviction was dismissed.

2023  PCrLJ  843   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ALI JAVED VS State

1. 9—Possession of narcotics—Appreciation of evidence—Scope—Technicalities of procedural nature or otherwise can be overlooked, if the case stands proved then the approach of the Court becomes dynamic and pragmatic in approaching true facts of the case and drawing correct and rational inferences and conclusions while deciding narcotics cases—Minor discrepancies in the evidence of raiding party do not shake its trustworthiness.

2023  PCrLJ  843   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ALI JAVED VS State

1. 9—Possession of narcotics—Production of sample-bearer—Scope—Sample-bearer is only needed to be examined in case of delay in the dispatch of the sample.

2023  PCrLJ  683   KARACHI-HIGH-COURT-SINDH

BASIT ALI VS State

1. 9(c)—Recovery of narcotic substance—Proof—Safe custody chain, breaking of—Effect—Benefit of doubt—Charas weighing 5 kilogram was allegedly recovered from accused— Trial Court convicted the accused and sentenced him to imprisonment for seven years—Validity—Narcotic drugs were received in the office after a delay of 10 days—Chain of custody or safe custody and safe transmission of narcotics begins with seizure of the narcotic by the law enforcement officer, followed by separation of representative samples of the seized narcotic, storage of the representative samples with law enforcement agency and then dispatch thereof to the office of Chemical Examiner for examination and testing—Such chain of custody was to be safe and secure, as Report of Chemical Examiner enjoyed very critical and pivotal importance under Control of Narcotic Substances Act, 1997—Chain of custody ensured that correct representative samples had reached office of Chemical Examiner—Any break or gap in the chain of custody i.e., in the safe custody or safe transmission of narcotic or its representative samples had made report of Chemical Examiner failed to justify conviction of accused—Prosecution failed to prove that Charas was in safe custody for relevant period—Even positive report of Chemical Examiner would not prove case of prosecution—Not necessary that there should many circumstances creating doubts—If there was a single circumstance, which had created reasonable doubt in a prudent mind about guilt of accused, then the accused was entitled to the benefit, not as a matter of grace and concession but as a matter of right—High Court set aside conviction and sentence awarded by Trial Court and acquitted the accused of the charge—Appeal was allowed in circumstances.

2023  PCrLJ  583   KARACHI-HIGH-COURT-SINDH

FAREED AHMED VS State

2. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Transportation of narcotics—Bail, refusal of—Scope—Prosecution case was that 2.500 kgs of methamphetamine was recovered from a secret cavity designed for concealment from the down side of a bus—Accused persons were munshi/cleaner of the bus—Accused persons must have had knowledge of secret cavities of the bus and the articles lying therein, thus their involvement in trafficking the narcotics could not be ruled out—Red-handed arrest of the accused persons with a considerable quantity of lethal contraband, confirmed by a positive report of Forensic Laboratory, prima facie connected the accused persons with the alleged crime—No enmity, ill-will or grudge had been alleged against the prosecution witnesses; on the contrary, sufficient material had been brought by the prosecution on record—Bail application was dismissed.

2023  PCrLJ  583   KARACHI-HIGH-COURT-SINDH

FAREED AHMED VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 51 & 9—Possession of narcotics—No bail to be granted in respect of certain offences—Scope—Larger interest of the public and State demands that in case of recovery of contraband stuff, the discretion under S. 497 Cr.P.C. should not be exercised liberally—Control of Narcotic Substances Act, 1997 consolidates and amends the law relating to narcotic drugs and psychotropic substances—Act controls and prohibits the possession, processing and trafficking of these substances—Act lays progressive punishments for narcotic offences and provides for the constitution of Special Courts having exclusive jurisdiction to try narcotic offences—Section 51 of Control of Narcotic Substances Act, 1997 provides that bail shall not be granted to an accused person charged with an offence under the Act or under any other law relating to narcotics where the offence is punishable with death—When the quantity of narcotics exceeds one kilogram, the case falls in Clause (c) of S. 9 of the Control of Narcotic Substances Act, 1997, for which death penalty or imprisonment for life has been provided—Discretion under S. 497, Cr.P.C. can also not be exercised with regard to offences punishable with death or imprisonment for life unless the Court at the very outset is satisfied that such a charge appears to be false or groundless.

2023  PCrLJ  481   KARACHI-HIGH-COURT-SINDH

ASMATULLAH PATHAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Contradictions in statements of witnesses—Scope—Prosecution case was that twenty kilograms of charas was recovered from the secret cavities of the vehicle driven by the accused—Record showed that the complainant in his evidence stated that the narcotic was recovered from the car by a police witness whilst said police witness stated that the narcotic was recovered from the car by the complainant—Police witness initially stated that the narcotic was found in the back seat of the car and was recovered by using a screw driver and later in cross-examination stated that the narcotic was hidden in the petrol tank—Complainant stated that the secret cavity was accessed by using a hammer and not screw driver—Circumstances established that the prosecution had not proved its case against the accused beyond a reasonable doubt—Appeal against conviction was allowed, in circumstances.

2023  PCrLJ  481   KARACHI-HIGH-COURT-SINDH

ASMATULLAH PATHAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Safe custody and transmission of samples of narcotic from police to Chemical Examiner—Scope—Prosecution case was that twenty kilograms of charas was recovered from the secret cavities of the vehicle driven by the accused—Recovery was made and sealed on the spot and then taken back by the police to the Police Station where it remained for two days before being taken for chemical examination in sealed condition—During that two days period there was no evidence as to where the narcotic was kept and whether kept in safe custody or not—Neither was the in-charge of the malkhana examined nor was an entry exhibited to prove that the narcotic had been kept safely in the malkhana during that two days’ period or any other witness to prove the safe custody of the narcotic in that respect—When the narcotic was taken to the Chemical Examiner the chemical report stated that it was delivered by a witness, however the receipt from the Chemical Examiner revealed that it was delivered by another person which again created doubts about that aspect of safe custody i.e. from the Police Station to the Chemical Examiner—Circumstances proved that the prosecution had not been able to prove safe custody of the narcotic from the time of its recovery to the time it was sent for chemical examination, meaning that opportunity for such narcotic to be interfered with and/or tampered with could not be ruled out—Chemical report could not be safely relied upon to convict the accused, in circumstances—Only half of the available narcotic was sent for chemical testing with no explanation why the remainder was not sent—Mentioning on the chemical report of the protocols used for testing also seemed to be very cursory—Circumstances established that the prosecution had not proved its case against the accused beyond a reasonable doubt—Appeal against conviction was allowed, in circumstances.

2023  PCrLJ  331   KARACHI-HIGH-COURT-SINDH

ABDUL MAJEED VS State

1. 9(c)—Possession of 4000 grams of opium—Appreciation of evidence—Benefit of doubt—Prosecution case was that 4000 grams of opium was recovered from the possession of accused—Record showed that not a single word was found in the evidence of prosecution witnesses as to when and through whom the sample for chemical examination and report was sent, however, Investigating Officer in his examination-in-chief only deposed that he sent the property for chemical examination—Chemical Examiner’s Report spoke that parcel was received at laboratory with memorandum from SHO through Head Constable—Prosecution had not examined the said important witness/Head Constable who brought the sample at laboratory which cut the chain of evidence to prove the case against the accused—Prosecution had not proved the safe transmission of the property to the Chemical Examiner, which created serious doubt in its case—Circumstances established that the prosecution had failed to prove its case beyond any reasonable doubt—Appeal against conviction was allowed, in circumstances.

2023  PCrLJ  331   KARACHI-HIGH-COURT-SINDH

ABDUL MAJEED VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)—Possession of 4000 grams opium—Appreciation of evidence—Benefit of doubt—Delay of nine days in sending the sample for analysis—Safe custody—Scope—Prosecution case was that 4000 grams of opium was recovered from the possession of accused—Recovery was allegedly effected and the sample was sent with the delay of about 09 days which was in violation of R. 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001—Such exercise was required to be completed within 72 hours of the recovery and for that purpose even there was no plausible explanation brought on record by the prosecution as to why such inordinate delay was caused in the completion of that exercise by the Investigating Officer—Said fact was fatal to the prosecution case—Prosecution had also not established the safe custody of the remaining recovered property—Prosecution had not produced the entry in respect of keeping the remaining property in the malkhana nor produced malkhana incharge in witness box to prove safe custody of the same, which was produced before the Trial Court and same had created very serious doubt in the case of prosecution—Circumstances established that the prosecution had failed to prove its case beyond any reasonable doubt—Appeal against conviction was allowed, in circumstances.

2023  PCrLJ  282   KARACHI-HIGH-COURT-SINDH

MAIRAJUDDIN VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Export of narcotics—Bail, grant of—Scope—Prosecution case was that 240 kilograms of tablets namely Zanax, Valium (Diazepam), Penix, Alprazolam were attempted to be shipped abroad through a container by declaring the goods as titles—Alleged medicines were manufactured by pharmaceutical companies under a licence—Such was yet to be determined at trial as to whether the alleged medicated and therapeutic tablets fell within the definition of narcotic drug or psychotropic substance cognizable under the Control of Narcotic Substances Act, 1997, or it was case of violation of Export Policy, Imports and Exports (Control) Act, 1950 or Customs Act, 1969—Guilt of the accused persons required further inquiry—Accused persons were admitted to post-arrest bail, in circumstances.

2023  PCrLJ  111   KARACHI-HIGH-COURT-SINDH

STATE/ANTI-NARCOTICS FORCE  VS IMDAD ALI

1. 540— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Power to summon material witness or examine person present—Scope—Narcotics allegedly recovered from the accused was re-weighed on direction of the High Court—Some discrepancy in its weight was found—Prosecution, in order to address the same, filed an application under S. 540, Cr.P.C. for summoning the Chemical Examiner who had tested the substance and given opinion about it—Prosecution’s application was allowed, however, before the Chemical Examiner could be examined, he expired, which necessitated filing of a fresh application for summoning the incumbent Chemical Examiner for such purpose, which application was dismissed through impugned order—Only objection voiced by the accused was that the Chemical Examiner could not be summoned as a prosecution witness but as a court witness—High Court observed that in the background of peculiar circumstances of the case, it was not relevant whether the Chemical Examiner was examined as the prosecution witness or the court witness, what was important, was his opinion regarding discrepancy in the weight of narcotics—Trial Court was directed to summon the Chemical Examiner—Revision application was disposed of accordingly.

2023  MLD  1831   KARACHI-HIGH-COURT-SINDH

GHULAM NABI alias NABOO alias NABI BUX VS State

1. 9(c)— Recovery of narcotic substance— Appreciation of evidence—Chain of custody, breaking of—Delay in sending samples—Effect—Charas weighing 2050 grams was allegedly recovered form accused—Trial Court convicted the accused and sentenced him to imprisonment for 5-1/2 years—Validity—Contraband material was dispatched to laboratory two days after its recovery but no explanation whatsoever was furnished by prosecution that where material was kept for the intervening period—Such fact led to adverse inference against prosecution about safe custody of Charas—All three improbabilities rendered entire claim of police party doubtful—When chain of custody was broken, report of chemical examiner had lost its sanctity and could not be relied upon safely to convict accused—Accused person is presumed to be innocent unless and unless he is proved guilty beyond reasonable doubt—Such presumption of innocence continues until prosecution has succeeded in proving charge against accused beyond reasonable doubt on the basis of legally admissible, confidence-inspiring, trustworthy and reliable evidence—High Court set aside conviction and sentence awarded to accused as prosecution failed to establish guilt against him beyond shadow of doubt and he was acquitted of the charge—Appeal was allowed, in circumstances.

2023  MLD  1603   KARACHI-HIGH-COURT-SINDH

SHAIKH IMRAN VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 342—Possession of narcotics—Appreciation of evidence—Defence plea—Scope—Prosecution case was that 78 kilograms charas and 08 kilograms heroin were recovered from the possession of accused persons—Defence alleged that accused were arrested by the Rangers and then handed over to Anti Narcotics Force Officials—Such defence plea appeared to be an afterthought, which had rightly been disbelieved by the Trial Court—Accused persons had failed to provide any valid proof such as news clippings from a TV channel to ascertain that they had been arrested by Rangers—Moreover, the accused persons examined four witnesses, one related to each of the accused—Each one of these four defence witnesses, while asserting that the accused persons were arrested by Rangers also admitted that they had, at no point, considered filing a motion before a Court of law for their recovery from the alleged “illegal confinement” by Rangers nor had any of them approached any Rangers higher-ups to ensure the safe return of the accused persons—As far as defence witness was concerned, he stated that he being the Bureau Chief at a TV Channel had come across the news clipping of the arrest of the accused persons by Rangers personnel, however in his cross-examination admitted that he had come across this information by another reporter and that he had made no efforts to confirm the same “news”—As such, belated arrangements made by the accused persons of well-wishers to testify in their favour failed to override positive evidence pointing towards their culpability—Circumstances established that the prosecution succeeded in proving its case against the accused persons beyond any shadow of doubt—Appeal against conviction was accordingly dismissed.

2023  MLD  1603   KARACHI-HIGH-COURT-SINDH

SHAIKH IMRAN VS State

1. 9(c)—Criminal Procedure Code (V of 1898), Ss. 342 & 535—Possession of narcotics—Appreciation of evidence—Defence plea not bearing the signatures of accused—Relevance—Prosecution case was that 78 kilograms charas and 08 kilograms heroin were recovered from the possession of accused persons—Defence objected that the pleas of the accused persons were never signed by them and that they had never made any plea before the Trial Court—Validity—Presumption of truth was attached with the record kept and maintained by the Court—Not obtaining signature or thumb-impression of the accused persons over defence plea did not tantamount to an illegality that would vitiate the trial and the same was even otherwise curable under S. 535, Cr.P.C.—Had the plea been of guilty, prejudice would have been caused to the accused persons which would not have been curable under S. 535, Cr.P.C., as the same meant an admission of all the facts furnished by the prosecution, however the plea of not guilty did not prejudice the case of the accused persons in any manner—Circumstances established that the prosecution succeeded in proving its case against the accused persons beyond any shadow of doubt—Appeal against conviction was accordingly dismissed.

2023  MLD  1603   KARACHI-HIGH-COURT-SINDH

SHAIKH IMRAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Police witnesses—Scope—Prosecution case was that 78 kilograms charas and 08 kilograms heroin were recovered from the possession of accused persons—Defence objected that evidence of the Police Officials was not trustworthy and that no independent or private person had been cited as a witness, as such the prosecution case was doubtful—Said contention however had very little merit to it—There was no universal rule that evidence of an interested witness per se must be invariably corroborated by independent evidence—Police Officials were as good witnesses as any other private witness and their evidence was subject to same standard of proof and the principles of the scrutiny as applicable to any other category of witnesses—In absence of any animus, infirmity or flaw in their evidence, the testimony of police witnesses could be relied upon without demur—Moreover, S. 103, Cr.P.C., had been excluded for offences falling under the Control of Narcotic Substances Act, 1997, by virtue of S. 25 of that Act—Circumstances established that the prosecution succeeded in proving its case against the accused persons beyond any shadow of doubt—Appeal against conviction was accordingly dismissed.

2023  MLD  1603   KARACHI-HIGH-COURT-SINDH

SHAIKH IMRAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Prosecution case was that 78 kilograms charas and 08 kilograms heroin were recovered from the possession of accused persons—Record showed that the raiding party, headed by complainant, apprehended the accused persons after receiving spy information from a special informer at a Gas Station—From the possession of accused persons, they recovered a total of 78 kilograms of charas and 8 kilograms of heroin in the shape of packets—Complainant admittedly tried looking for private mashirs of the locality, but nobody agreed, therefore he appointed ASI and Police Constable—Recovered charas was weighed on an electronic scale available with them—Ten (10) grams of charas from each packet was separated from the total quantity and sealed on the spot for chemical examination whereas the entire quantity of heroin was sealed alongside it for chemical examination as well—Moreso, the prosecution witnesses had provided an uninterrupted chain of facts ranging from arrest and seizure to forensic analysis of the contraband—Witnesses were in comfortable unison on all the salient features regarding interception of the charas and heroin as well as all the steps taken thereafter—All the witnesses had unanimously deposed that the case property in Court was the same and they were at no point cross-examined on the same point by the defence alleging tampering with the same—Contraband so recovered from the accused persons had been proved by examining the complainant, mashir of the arrest and recovery and the Police Officer responsible for the delivery of the contraband to the Chemical Examiner—Recovered narcotics were kept in safe custody from the time of their recovery to the time when they were taken to the Chemical Examiner—Furthermore, narcotics were sealed on the spot and had remained sealed in the malkhana before being transported to the Chemical Examiner—Seals on the same parcels delivered were found intact by the Chemical Examiner, further proving safe custody and transmission of the same—Even otherwise, it appeared rather unbelievable that such a huge quantity of charas and heroin could be foisted on the accused persons without any reason to falsely implicate them—Circumstances established that the prosecution succeeded in proving its case against the accused persons beyond any shadow of doubt— Appeal against conviction was accordingly dismissed.

2023  MLD  1532   KARACHI-HIGH-COURT-SINDH

ISLAM SHAH VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Contradictions and dishonest improvements in the statements of witnesses—Effect—Prosecution case was that 72 packets of hashish weighing 80 kilograms were recovered from the secret cavities of the vehicle of the accused persons—Mashirnama of recovery did not speak about the number of parcels in which charas was sealed after separating the samples—However, the complainant during examination-in-chief produced three sealed parcels as Article B to D and further deposed that Article B contained 12 packets of charas, Article C contained 30 packets of charas and Article D contained 30 packets of Charas which in total became 72 packets—As per the evidence of complainant all the remaining property was sealed at the spot—Mashir during his examination-in-chief deposed that case property was sealed in two parcels and further deposed that the property available in the court was Article B which contained 36 packets of charas and Article C contained 37 packets of charas totalling 73 and there was no explanation as to how one (extra) packet of charas came about from the charas allegedly recovered and sealed at the spot—Further, both witnesses were in contradiction in respect of bags/parcels, as one of them deposed it as three and the other as two—Mashir during cross-examination also admitted that the complainant produced three sealed parcels of Narcotic Substance as Articles B, C and D—However, said witness admitted during his evidence that only Articles C and D were present before the court containing 73 packets of charas and as such, all said material contradictions cut the roots of the prosecution case and made it doubtful—Complainant in his examination-in-chief had deposed that he had issued notices under Ss. 22 & 23 of Control of Narcotic Substances Act, 1997 (the ‘CNS Act, 1997’) to the driver of the bus and he had not deposed a single word that any duty clerk was with them at the time of recovery—However, mashir had stated during cross-examination that the notices under Ss. 22 & 23 of CNS Act, 1997, were prepared by the duty clerk on the dictation of Seizing Officer—Said witness also during his examination-in-chief did not depose a single word as to whether the duty clerk was with them at the time of recovery or not which made the story of prosecution doubtful—Appeal against conviction was allowed accordingly.

2023  MLD  1532   KARACHI-HIGH-COURT-SINDH

ISLAM SHAH VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that 72 packets of hashish weighing 80 kilograms were recovered from the secret cavities of the vehicle of the accused persons—Prosecution case was that from each slab, 10 grams were separated for samples and 72 packets were prepared—As per evidence of the Investigation Officer he sent sealed parcels to the Chemical Examiner—However, on perusal of the report issued by Chemical Examiner, gross weight of parcels 1 to 73 containing 15 grams each totalled 1080 grams—However, again it was mentioned in the said report with respect to net weight of 1 to 72 samples which contained 10 grams each and the total weight was 720 grams which also created very serious doubt in respect of the samples as to whether 73 or 72 samples were received by the Chemical Examiner—Even the weight was not matched with the total weight and gross weight of both 72 and 73 samples—Appeal against conviction was allowed accordingly.

2023  MLD  1532   KARACHI-HIGH-COURT-SINDH

ISLAM SHAH VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Safe custody and safe transmission of the property to the Chemical Examiner not established—Prosecution case was that 72 packets of hashish containing 80 kilograms were recovered from the secret cavities of the vehicle of the accused persons—Investigation Officer deposed that he sent sample parcels to the office of the Chemical Examiner through a clerk, however, he stated that he did not remember name of said clerk—On perusal of the Chemical Examiner’s report, it reflected that the property was received through Hawaldar but said Hawaladar was neither examined by the Investigation Officer nor was produced before the Trial Court to certify that he took the property from the Investigation Officer and deposited the same with the Chemical Examiner—Investigation Officer further stated during cross-examination that after receiving the case property he deposited the same in the Malkhana and Malkhana Incharge was Subedar Major however, he did not remember his name—Investigation Officer admitted that he had not produced any entry in respect of depositing the case property in Malkhana—Investigation Officer also admitted that he had not produced any entry in the respect that he received case property from Malkhana Incharge for sending the same to the office of the Chemical Examiner—Prosecution had not examined the Incharge of the Malkhana (Subedar Major) to prove safe custody—Hence, it could easily be said that the prosecution had not proved the safe custody and safe transmission of the property to the Chemical Examiner which rendered the chemical report as worthless—Appeal against conviction was allowed accordingly.

2023  MLD  1507   KARACHI-HIGH-COURT-SINDH

SHAKEEL AHMED VS State

Ss. 9(c), 25 & 48—Criminal Procedure Code (V of 1898), S. 103—Recovery of narcotic substance—Appreciation of evidence—Police witnesses—Public witnesses, absence of—Charas weighing 22 kilogram was recovered from the possession of accused persons—Trial Court convicted accused persons and sentenced them to imprisonment for life—Plea raised by accused persons was that recovery of narcotic substance was not proved as no witness from public was associated with proceedings—Accused further contended that they were kept in illegal confinement before registration of criminal case against them—Validity—Reluctance of general public to become a witness in such cases has become a judicially recognized fact—There was no way out but to consider statement of official witnesses as no legal bar or restriction was imposed in such regard—No direct enmity or ill will was suggested by accused persons against complainant or any of the officials who participated in recovery proceedings during cross-examination—Police officials were good witnesses and could be relied upon if their testimony remained un-shattered during their cross-examination—Provision of S. 25 of Control of Narcotic Substances Act, 1997, provided exclusion of S. 103, Cr.P.C., during recovery proceedings—It was difficult to believe that four persons were arrested and were kept in wrongful confinement but no one from their relatives had made any complaint nor tried to rescue them or tried to get them released—Prosecution had successfully proved the case against accused persons beyond reasonable doubt, in circumstances—By flux of time in the cases of transportation or possession of narcotics, technicalities of procedural nature or otherwise should be overlooked in the larger interest of the country, if the case is otherwise proved— Approach of the Court should be dynamic and pragmatic in appreciating facts of the case and drawing correct and rational inferences and conclusions while deciding such type of cases—No drug peddler should be acquitted in narcotics case on technicalities—Prosecution proved its case against accused persons beyond a reasonable doubt by producing reliable, trustworthy and confidence-inspiring evidence in the shape of oral/direct and documentary evidence corroborated by report of chemical examiner—High Court maintained conviction and sentence awarded to accused persons as judgment passed by Trial Court did not suffer from any illegality, gross irregularities or infirmities—Appeal against conviction was dismissed, in circumstances.

2023  MLD  1095   KARACHI-HIGH-COURT-SINDH

KALEEM BAIG VS State

Ss. 6 & 9(c)—Possession of 127 kilograms charas—Appreciation of evidence—Benefit of doubt—Prosecution case was that 107 packets containing 127 kilogram charas were recovered from a vehicle wherein the accused was a passenger—Case of the accused being the passenger and other accused being the driver of the pickup truck was distinguishable—As far as the case of accused being the passenger of the truck was concerned, prosecution had failed to bring forth any iota of evidence against him—None of the prosecution witness deposing against him stated anything besides his mere presence in the truck—From his personal possession, only a Nokia mobile phone and Rs.2,000/- were recovered which in no way connected him to the four bags in the back of the truck nor did any of the prosecution witnesses suggest that the accused was conscious of the presence of narcotic in the back of the truck—Circumstances established that prosecution had failed to prove its case against the said accused/passenger beyond any shadow of doubt—Appeal against conviction to the extent of accused in question was allowed, in circumstances.

2023  MLD  1095   KARACHI-HIGH-COURT-SINDH

KALEEM BAIG VS State

Ss. 6, 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Possession of 127 kilograms of charas—Appreciation of evidence—Sentence, reduction in—Non-association of independent witnesses in recovery proceedings—Inconsequential—Prosecution case was that 107 packets containing 127 kilograms charas were recovered from the vehicle of the accused—There is no universal rule that evidence of an interested witness, per se, must be invariably corroborated by some other evidence—Police Officials, being the state’s peacekeepers and law enforcers are as good witnesses as any other and their evidence is subject to same standard of proof and principles of scrutiny as the standard applicable to any other category of witnesses—Despite the undeniable independent corroboration, in absence of any animus, infirmity or flaw in their evidence, the testimony of Police Officials can be relied upon without demur—Defence contended that the complainant failed to get any witnesses prior to receiving the spy information, however S. 103, Cr.P.C., in clear terms, was excluded for offences falling under the Control of Narcotic Substances Act, 1997, by virtue of S. 25 of the Act—Circumstances established that prosecution had proved its case against the accused beyond any shadow of doubt, however his sentence was altered from imprisonment for life to imprisonment for one year and nine months—Appeal was disposed of in the said terms.

2023  MLD  1095   KARACHI-HIGH-COURT-SINDH

KALEEM BAIG VS State

Ss. 6 & 9(c)—Possession of 127 kilograms charas—Appreciation of evidence—Sentence, reduction in—Prosecution case was that 107 packets containing 127 kilograms charas were recovered from the vehicle of the accused—Accused was allegedly driving the pickup truck at the time of his arrest—With regard to his role, the prosecution witnesses had provided an uninterrupted chain of facts ranging from the arrest of the accused and the seizure of narcotic to forensic analysis of the contraband—Witnesses were in comfortable unison on all the salient features regarding interception of the narcotic as well as all the steps taken thereafter—As far as the question of conscious possession was concerned, the accused was in fact the driver of the truck as had been deposed by the two mashirs of arrest and recovery—In the memo of arrest and recovery prepared by the complainant who’s signature on the same, too, was ascertained through Police Constable/witness—Admittedly, the person driving the vehicle was in charge of the same and was presumed to know of the contents of the same—Circumstances established that prosecution had proved its case against the accused beyond any shadow of doubt, however his sentence was altered from imprisonment for life to imprisonment for one year and nine months—Appeal stand disposed of in the said terms.

2023  MLD  1095   KARACHI-HIGH-COURT-SINDH

KALEEM BAIG VS State

Ss. 6 & 9(c)—Possession of 127 kilograms of charas—Appreciation of evidence—Sentence, reduction in—Safe custody and transmission of narcotic to Forensic Laboratory established—Prosecution case was that 107 packets containing 127 kilograms charas were recovered from the vehicle of the accused—Record showed that the complainant deposited the recovered sample in the malkhana on the same day and said entry was made within Register No.19 per the contents of the memo of arrest and recovery—Again, the Investigating Officer deposed that he had received the case property in sealed condition and then delivered the same himself on the 22nd of June, i.e. 2 days after the arrest and recovery which was effected on 20.06.2020—Said exercise was done within the 72 hours prescribed time—Chemical Examiner, in his report under general remarks, also noted that the condition of the seals on the parcels was satisfactory, which too would negate any presumption of tampering—Circumstances established that prosecution had proved its case against the accused beyond any shadow of doubt, however his sentence was altered from imprisonment for life to imprisonment for one year and nine months—Appeal was disposed of in the said terms.

2023  MLD  1095   KARACHI-HIGH-COURT-SINDH

KALEEM BAIG VS State

Ss. 6, 9(b) & 9(c)— Possession of 127 kilograms charas—Appreciation of evidence—Sentence, reduction in—samples from each recovered packet not sent for analysis—Effect—Prosecution case was that 107 packets containing 127 kilograms charas were recovered from the vehicle of the accused—Only issue, however, was the fact that the complainant had only sent a single packet out of a total of 107 packets recovered—Said one single packet had two slabs within it, each weighing 500 grams; totalling 1000 grams (1 kg)—While the recovery of the bags and packets was not doubtful, the nature of the contents of the same was as the complainant failed to gather representative sample from every single packet—Prosecution failed to disclose which bag that slab was taken from—As such, safe criminal administration of justice called for only one kilogram of chars to be considered against the accused—Possession of 1000 grams, having been proven against the accused, would bring his case from one under S. 9(c) to one under S. 9(b) of the Control of Narcotic Substances Act, 1997—Thus, the sentence of accused was altered from life imprisonment to one year and nine months—Appeal was disposed of in said terms.

2023  MLD  966   KARACHI-HIGH-COURT-SINDH

MUHAMMAD SHAHBAZ VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Prosecution case was that fifty eight kilograms gross heroin powder in ten wooden tables was recovered from the container of the accused—Record showed that the FIR was lodged with promptitude giving no time for concoction and S. 161, Cr.P.C statements of the witnesses were also recorded promptly which were not significantly improved upon by any witness at the time of giving evidence—Accused was arrested on the spot when the container was opened in his presence and the heroin was found concealed in 10 wooden tables—Accused had no reason to be in the secured examination area unless he was involved in the shipment—Clearing Agent/witness gave evidence that he had once already arranged such a shipment to Malaysia in 2012 with the accused and absconder whereby E-Form, invoice and undertaking had been provided to him and that he had once again arranged such a shipment for the accused which was the shipment in question which had been blocked by the Anti Narcotic Force—According to evidence of said witness, he was present when the container was opened by the Anti-Narcotic Force and the accused pointed out that the narcotics were hidden in ten wooden tables at the back of the container which only the accused would have known about—Evidence of said witness on the recovery of the narcotics on the pointation of the accused in a hidden place was also corroborated by the Anti Narcotic Force witness—Said witness was an independent witness and no enmity was suggested between him and the accused and thus had no reason to falsely implicate the accused in the case—Said witness was not dented during cross examination and he gave his evidence in a straightforward manner and as such his evidence was believable—Accused had given a signed undertaking on stamp paper in respect of the consignment in the container from which the narcotics were recovered which directly connected him with the container and its consignment—Amount of 58 Kilograms of heroin was too large an amount to be foisted especially as it was hidden in wooden tables at the back of the container and that there appeared to be no dispute that the narcotic was recovered from the container and that the accused was present at the time of its recovery—Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt—Appeal against conviction was dismissed accordingly.

2023  MLD  966   KARACHI-HIGH-COURT-SINDH

MUHAMMAD SHAHBAZ VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Safe custody of the recovered substance—Scope—Prosecution case was that fifty eight kilograms heroin powder in ten wooden tables was recovered from the container of the accused—Container was initially de-sealed by the customs authorities, however, when it was noted that the container had been blocked by the Anti-Narcotic Force it was locked and guarded by the Anti-Narcotic Force until the Anti-Narcotics Force raiding party arrived—Narcotics were recovered on the pointation of the accused hidden in the back of the container in ten wooden tables—Narcotics were weighed and sealed on the spot and then deposited in the Malkhana before being taken in a sealed condition for chemical examination as confirmed by the chemical report—No allegation of tampering was made in respect of the narcotics during cross examination and thus it was found that the prosecution had proven safe custody of the recovered narcotic—Chemical report was positive and the relevant protocols for testing were followed—Arrest and recovery was made on the spot on the pointation of the accused by the police whose evidence fully corroborated each other in all material respects as well as the prosecution case—Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt—Appeal against conviction was dismissed accordingly.

2023  MLD  966   KARACHI-HIGH-COURT-SINDH

MUHAMMAD SHAHBAZ VS State

1. 9—Possession of narcotics—Testimony of Police Officials—Evidence of a police witness is as reliable as any other witness provided that no enmity exists between them and the accused.

2023  MLD  966   KARACHI-HIGH-COURT-SINDH

MUHAMMAD SHAHBAZ VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 103 —Possession of narcotics—Appreciation of evidence—Non-association of private witnesses at the time of arrest of accused and recovery of narcotics—Scope— Prosecution case was that fifty eight kilograms gross heroin powder in ten wooden tables was recovered from the container of the accused—No independent mashir was associated with the arrest and recovery of the accused and narcotic—Section 103, Cr.P.C., had been excluded for offences falling under the Control of Narcotic Substances Act, 1997, by virtue of S. 25 of that Act—Appeal against conviction was dismissed accordingly.

2023  MLD  942   KARACHI-HIGH-COURT-SINDH

ISMAIL VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, grant of—Scope—Contents of the FIR did not show that the samples were taken out of the recovered narcotic for chemical examination—Argument that accused was made a prey of animosity and he was involved in the crime by foisting charas upon him could not be overlooked—Plea of animosity was supported, during arguments, by bringing on record material against the police—Witnesses cited in the FIR were police officials working under subordination of complainant, hence, there was no apprehension of tampering the evidence—Trial would determine whether the accused had committed the alleged offence or he had been implicated due to previous animosity as brought by accused on record—Investigation was over and the accused was no more required for further investigation—Accused was admitted to bail.

2023  MLD  931   KARACHI-HIGH-COURT-SINDH

MASHOOQUE ALI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Police witnesses—Scope—Accused challenged his conviction under S. 9(c) of the Control of Narcotic Substances Act, 1997—Complainant stated that he and his staff were conducting a patrol when they received information from a spy that the accused was in his village with large quantity of narcotic substances and was waiting for a customer—Acting on this information, they went to the place of the incident and found the accused standing there with a shopper—Accused was apprehended on the indication of the spy and a shopper containing opium in the form of pieces, weighing 02 kilograms, was secured from him and sealed—On inquiry, the accused led the complainant and his party to nearby bushes, where he took out two bags, each containing 45 packets of charas, weighing 01 kilogram each, totalling 90 kilograms of charas—From each packet of charas, 20 grams were taken out for chemical examination and sealed—Memo was prepared at the spot and the accused was booked in the case—Complainant and his witnesses stood by their version on all material points with regard to the arrest of the appellant and the recovery of the narcotic substance from him, despite lengthy cross-examination; they could not be disbelieved only on the basis that they were police officials; they had no enmity or ill will towards the accused to have falsely implicated him in the case by foisting upon him a huge quantity of narcotic substance—Trial Court was right to conclude that the prosecution had proved its case against the appellant beyond a shadow of doubt—Appeal was dismissed, in circumstances.

2023  MLD  875   KARACHI-HIGH-COURT-SINDH

ABDUL SATTAR PATHAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Sentence, reduction in—Prosecution case was that ten kilograms opium and ten kilograms charas were recovered from the truck driven by accused, which was to be delivered to the co-accused—Prosecution witnesses had constituted an uninterrupted chain of facts ranging from seizure to forensic analysis of the contraband—Witnesses were in comfortable unison on all the salient features regarding interception of the huge quantity of Chars and Opium as well as all the steps taken subsequently—Whole case property was sealed and sent to the Chemical Examiner, which was found being exercise more than sufficient to constitute forensic proof—At the time of arrest, accused was driving the truck from wherein he produced the two bags containing the contraband, therefore he was responsible for the said narcotics—Report of Chemical Examiner fully corroborated the evidence of both the witnesses, whose stand was in nexus with the Chemical Examiner’s Report—Trial Court had already acquitted the co-accused while extending benefit of doubt on the basis of same set of evidence through impugned judgment—Record showed that the accused was a first offender and did not have previous criminal record—Accused was the sole bread earner of a huge family and was of old age and his conduct in jail had also been satisfactory as per jail authorities— Lesser punishment would be sufficient for a first-offender—Moreover, the accused appeared to be remorseful of his past and had shown willingness for improvement—Court at its discretion could divert from the norms and standards prescribed in terms of sentencing after assigning cogent reasons; hence, the sentences of the accused were reduced from twelve years and six month to one already undergone by him—Appeal was dismissed with said modification.

2023  MLD  731   KARACHI-HIGH-COURT-SINDH

Mst. BAKHTAWAR alias BAKHI SHAHZADI LARIK VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, grant of—Further inquiry—Female accused—Accused-lady was allegedly found in possession of 1150 grams of charas—Accused was an old and infirm lady, and there was no independent witness to the incident—Case had been challaned and there was no apprehension of tampering with the evidence on the part of the accused—In such circumstances, a case for release of the accused on the point of further inquiry was made out—Accused-lady was admitted to bail.

2023  MLD  625   KARACHI-HIGH-COURT-SINDH

MUHAMMAD RAMZAN VS State

Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25—Trafficking of narcotics—Bail, refusal of—Mode of making searches and arrest—Non-association of independent witnesses—Scope—Accused was alleged to have been apprehended while transporting 2.5 kilograms of methamphetamine which was concealed in a cavity specially designed for concealment under the bus—Accused was admittedly working as Munshi at the bus stand and at this stage his involvement in trafficking the narcotics could not be ruled out—No enmity, ill-will or grudge was alleged against the prosecution witnesses; on the contrary, sufficient material was brought on record by the prosecution on the record—So far as contention of the accused that recovery was not witnessed by persons from public was concerned, High Court observed that S. 25 of Control of Narcotic Substances Act, 1997, excluded the application of S. 103, Cr.P.C.—Larger interest of the public and State demanded that in case of huge recovery of contraband stuff, the discretion under S. 497, Cr.P.C., should not be exercised liberally—Bail application was dismissed, in circumstances.

2023  MLD  625   KARACHI-HIGH-COURT-SINDH

MUHAMMAD RAMZAN VS State

Ss. 9 & 51— Criminal Procedure Code (V of 1898), S. 497—Possession of narcotics—Bail—Scope—Control of Narcotic Substances Act, 1997, consolidates and amends the law relating to narcotic drugs and psychotropic substances— Act controls and prohibits the possession, processing and trafficking of these substances; it also lays progressive punishments for narcotic offences—Act provides for the constitution of Special Courts having exclusive jurisdiction to try narcotic offences—Section 51 of the Control of Narcotic Substances Act, 1997, provides that bail shall not be granted to an accused person charged with an offence under the Act or under any other law relating to narcotics where the offence is punishable with death—When the quantity of narcotics exceeds one kilogram, the case falls in clause (c) of S. 9 of the Act, for which death penalty or imprisonment for life has been provided—Discretion under S. 497, Cr.P.C., can also not be exercised with regard to offences punishable with death or imprisonment for life unless the Court at the very outset is satisfied that such a charge appears to be false or groundless—Even otherwise, it is settled that for deciding the bail application the court has to assess the material tentatively and deeper appreciation of evidence is not required and it will not be fair to go into discussion about the merits of the case at bail stage.

2023  MLD  535   KARACHI-HIGH-COURT-SINDH

ANWAR ALI VS State

1. 9(c)— Recovery of narcotic substance—Proof—Benefit of doubt—Applicability—Charas weighing 1500 grams in total was recovered from accused who was convicted by Trial Court and sentenced to imprisonment for three years—Validity—Safe custody of Charas after its recovery was not established by cogent and confidence inspiring evidence—Departure entry was produced in evidence but there was also overwriting in that entry without explanation—No evidence was on record to the effect that sample was taken from each slab of Charas recovered from possession of accused, so also from cavity of Motorcycle for chemical analysis—Such was also not clear that how many grams were taken from each piece of Charas—Mere word of official was not sufficient to hold accused guilty of an offence without independent corroboration, which was lacking—Not necessary that there should be many circumstances creating doubts—If there was a single circumstance, which had created reasonable doubt in a prudent mind about guilt of accused, then accused was entitled to the benefit not as a matter of grace and concession but as a matter of right—High Court extended benefit of doubt to accused, set aside conviction awarded to him as prosecution failed to prove its case against him beyond reasonable shadow of doubt and was acquitted of the charge—Appeal was allowed in circumstances.

2023  MLD  366   KARACHI-HIGH-COURT-SINDH

Mst. SAKINA alias SIKKO VS State

Ss. 9(c) & 29— Transportation of narcotics— Presumption from possession of illicit articles—Appreciation of evidence—Scope—Accused persons were alleged to have been found in possession of charas—First Information Report was lodged with promptitude giving no time for concoction—Vehicle in which the accused persons were travelling in and where it would be was based on spy information which clearly mentioned that women would be in the car which led to the calling of lady police officers in order to search the ladies—Arrest and recovery was made from each of the accused persons on the spot—No major contradictions were found in the evidence of the prosecution witnesses—Once the recovery had been proved the onus shifted to the accused persons to show their innocence in that at least they had no knowledge of the narcotics—No delay in sending the chemical report for analysis which turned out to be positive—Recovered narcotics were kept in safe custody from the time of its recovery to the time when it was taken for chemical analysis and no suggestion of tampering with the same was even made—Prosecution had proved its case beyond a reasonable doubt against the accused persons and as such their conviction was up-held—Accused persons were found to be in possession of little over 3 kilograms of charas and each were sentenced to 10 years rigorous imprisonment with fine, however, as per sentencing guidelines the appropriate sentence was rigorous imprisonment for 6 years and 6 months along with fine—Sentences of the accused persons were reduced accordingly—Appeals were dismissed.

2023  YLRN  72   KARACHI-HIGH-COURT-SINDH

MANSOOR alias MANSOORI VS State

1. 9(c)—Possession of 3070 grams of charas— Appreciation of evidence—Prosecution case was that the accused were found on motorcycle in suspicious condition, police arrested them and during search 3070 grams charas in a shopper was recovered from accused, whereas 3050 grams charas was recovered from co-accused in the presence of mashirs—Record showed that mashir narrated the entire facts by stating that the accused were arrested from a school and recovery was made from them in his presence—Said witness had also affirmed that memo of arrest and recovery was prepared at the spot and after completing all formalities the accused and the case property were brought at police station—Said witness though was cross-examined by the defence at length, but he remained unshaken on material particulars of the case—Evidence of other witnesses constituted an uninterrupted chain of facts ranging from seizure and forensic analysis of the contraband—Witnesses were in comfortable unison as to all the salient features regarding interception of the huge quantity of charas along with mobile phones as well as steps taken subsequently—Quantity recovered, rather substantial in volume/weight, could not be possibly foisted upon accused to victimize them—All the prosecution witnesses, including those of recovery, had been found well within tune with one another—Recovered charas was sent to Chemical Examiner without any inordinate delay and the chemical report on record was positive—Perusal of contents of chemical report showed that while preparing the same, all requirements of law of protocols were also observed—Impugned judgment having been rightly passed, required no interference by that Court, hence, was maintained—Appeal against conviction was dismissed, in circumstances.

2023  YLRN  31   KARACHI-HIGH-COURT-SINDH

KUNWAR SINGH VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9—Possession of narcotics—Bail, grant of—Accused not in possession of narcotic substance—Rule of consistency—Scope—Prosecution case was that huge quantity of narcotics and weapons were recovered from a locked house where photostat copies of the CNIC and a special duty card of the accused was found—Police party before entering the house had asked the residents of the area to act as witnesses but they had declined—First Information Report had not specifically stated as to how many persons were asked by the police party to act as witness and the names of such persons had also not been disclosed—Accused was not owner of the house contrary to such claim made in the FIR—Accused was not in possession of the house—Accused had been booked and charged under Ss. 6 & 9(c) of the Control of Narcotic Substances Act, 1997—Section 6 prohibited production, manufacture, extraction, preparation, possession, sale, purchase, distribution, delivery, transportation and/or dispatch of narcotic substance described therein— Section 9 provided the punishment for the contravention of Ss. 6, 7 & 8—Prima facie, it appeared that the accused was not involved in any of the acts mentioned in S. 6—Case of accused, in circumstances, was one of further inquiry—Co-accused, who was owner of the house, had already been granted bail—Case of accused was on better footing than that of the co-accused—Accused was admitted to post-arrest bail, in circumstances.

2023  YLRN  22   KARACHI-HIGH-COURT-SINDH

MUHAMMAD URIS VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Non-association of private persons—Scope—Allegedly, 1010 grams of charas was recovered from the possession of accused—Record showed that accused was arrested from a populated area and the complainant had sufficient time to call the independent persons of the locality to witness the recovery proceedings but it was not done by him—Only the Police Officials who were subordinates to the complainant were made as mashirs of arrest and recovery proceedings—Provisions of S. 103, Cr.P.C., were not attracted to the cases of personal search of accused in narcotic cases but where the alleged recovery was made on a road as had happened in the present case, omission to secure independent mashirs, particularly in police case could not be brushed aside lightly by the court— No explanation on record was available to show as to why no independent person from the vicinity had been joined to witness the recovery proceedings—Circumstances established that the prosecution had failed to prove the guilt against the accused beyond any reasonable doubt—Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

2023  YLRN  22   KARACHI-HIGH-COURT-SINDH

MUHAMMAD URIS VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Chemical analysis —Delay of about six days in sending samples of contraband for analysis—Effect—Allegedly, 1010 grams of charas was recovered from the possession of accused—According to the statement of complainant, he recovered the narcotics from accused and prepared the memo. of arrest and recovery and deposited the same in Malkhana—Report of Director Laboratories and Chemical Examiner revealed that the charas was received by hand in the office through SHO concerned after the delay of about six days but evidence on the record was silent that where the same remained for six days—Evidence regarding safe transmission of alleged recovered narcotic to the laboratory for chemical analysis was also missing—Circumstances established that the prosecution had failed to prove its case against the accused—Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

2023  YLRN  22   KARACHI-HIGH-COURT-SINDH

MUHAMMAD URIS VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Contradictions in the statements of witnesses—Scope—Allegedly, 1010 grams of charas was recovered from the possession of accused—Record showed that there were discrepancies and flaws in the evidence of complainant and mashir of arrest and recovery—Complainant in his cross-examination had admitted that he had not mentioned the description of accused in the memo. of arrest and recovery as well as in the FIR—Complainant further admitted that the charas lying in court was one slab and not in pieces—Investigating Officer of the case had also admitted in his cross-examination by saying that he had not recorded statement under S.161, Cr.P.C. of Incharge of Malkhana—Overwriting was not noticed in the letter submitted by SHO to the Chemical Examiner—Said letter further showed that one white cloth shopper having three seals whereas the report of Chemical Examiner on physical examination showed 01 sealed cloth parcel containing black plastic shopper—No customer was found over there for the purpose of selling or purchasing the charas—Accused had also taken plea in his statement recorded under S.342, Cr.P.C., that on the day of incident he was present in village along with some other person and in his defence he had also examined said person to support his version—Circumstances established that the prosecution had failed to prove its case against the accused—Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

2023  YLRN  22   KARACHI-HIGH-COURT-SINDH

MUHAMMAD URIS VS State

1. 9(c)— Possession and transportation of charas— Appreciation of evidence— Safe custody of samples and their transmission to the Chemical Examiner—Significance—If safe custody of narcotics and its transmission through safe hands was not established on the record, same could not be used against the accused—Chain of custody or safe custody and safe transmission of narcotics begin with seizure of the narcotic by the law enforcement officer followed by separation of the representative samples of the seized narcotic, storage of the representative samples with the law enforcement agency and then dispatch thereof to the office of the Chemical Examiner for examination and testing—Said chain of custody must be safe and secure—Such was because the Report of Chemical Examiner enjoyed very critical and pivotal importance under the Act and the chain of custody ensured that correct representative samples reached 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 or its representative samples made the report of the Chemical Examiner failed to justify conviction of the accused—Prosecution, therefore, was to establish that the chain of custody had remained unbroken, safe, secure and indisputable in order to be able to place reliance on the report of the Chemical Examiner—Facts of the present case revealed that the chain of custody had been compromised at more than one occasion, therefore, reliance could not be placed on the report of the Chemical Examiner to support conviction of the accused—All such factors suggested the false implication of accused in the case which could not be ruled out—Record showed that the charas was recovered from possession of accused and was kept in Malkhana but incharge of the Malkhana had not been examined before the Trial Court and it had not been proved that it was a safe transit case—Circumstances established that the prosecution had failed to prove its case against the accused—Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

2023  YLRN  22   KARACHI-HIGH-COURT-SINDH

MUHAMMAD URIS VS State

1. 9(c)—Narcotic cases—Testimony of Police Officials, reliance upon—Scope—No doubt, police witnesses were as good as other independent witnesses and conviction could be recorded on their evidence, but their testimony should be reliable, dependable, trustworthy and confidence worthy—If such qualities were missing in their evidence then no conviction could be passed on the basis of evidence of police witnesses— In the present case, number of contradictions in between the evidence of prosecution witnesses were available which could not be easily brushed aside—Conduct of the police showed that investigation had been carried out in a casual and stereotype manner without making an effort to discover the actual facts/truth—Circumstances established that the prosecution had failed to prove its case against the accused—Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

2023  YLRN  12   KARACHI-HIGH-COURT-SINDH

MUHAMMAD PARYAL alias HAJI VS State

1. 9(c)—Possession of narcotics—Scope—Accused was alleged to have been found in possession 8 kilograms of narcotics—Accused had already served out a major portion of his sentence—Nothing had come on record as to whether the accused had ever remained involved in such type of cases or he was convicted—Factum of illness of accused was not controverted by the Special Prosecutor—Accused had been sufficiently punished, therefore, he was entitled to be given a chance in his life to rehabilitate himself—Conviction and sentence awarded to the accused was reduced to the one already undergone by him—Appeal was dismissed, with modification in sentence.

2023  PCrLJN  10   KARACHI-HIGH-COURT-SINDH

AMIR MUHAMMAD SIDDIQ VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Export of narcotics—Bail, grant of—Scope—Conscious knowledge—Scope—Prosecution case was that the accused persons had exported a container wherein 1500 kilograms of heroin was concealed—Investigating Officer had approached the foreign crime agency for retrieving of informative documents and samples of case property through e-mails but the same agency which had recovered narcotic substance had not responded to the request of Investigating Officer—Prosecution was neither in possession of alleged recovered heroin nor any positive report of chemical analysis—Even it was not known if the alleged heroin was sent for chemical analysis or not after being detected from the alleged container—Prosecution had to establish the requisite “conscious knowledge” of the accused persons about the presence of heroin in the consignment—Consignment had passed about nine ports before being targeted by the foreign customs and it was not clear as to when and where heroin was concealed or replaced in journey after leaving Pakistan and who was the owner, master mind, seller and purchaser of the alleged recovered heroin—Case of accused persons was one of further inquiry—Accused persons were admitted to post-arrest bail, in circumstances.

2023  PCrLJN  9   KARACHI-HIGH-COURT-SINDH

NOORULLAH VS State

1. 9(c)—Possession of 3600 grams of charas—Appreciation of evidence—Safe custody and transmission of samples of the narcotic from the police to the Chemical Examiner—Scope—Prosecution case was that 3600 grams of charas was recovered from the possession of accused—Recovered narcotic was kept in safe custody from the time of its recovery to the time when it was transmitted to chemical analysis—No suggestion of tampering with the same had been brought on record—Defence failed to point out anything from the record to establish that the said parcel was ever tampered with and was not safely transmitted to the Chemical Examiner—Evidence led by the prosecution as well as the report of the Chemical Examiner established that the parcel received by the said agency remained intact—Nothing could be found from the record, which could suggest that the safe chain of custody of the samples was compromised—Positive forensic report confirmed the nature of the substance, recovered in a huge quantity that could not be possibly foisted in routine—Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused—Appeal against conviction was dismissed accordingly.

2023  PCrLJN  9   KARACHI-HIGH-COURT-SINDH

NOORULLAH VS State

1. 9(c)— Possession of 18 kgs of charas— Appreciation of evidence—Prosecution case was that 3600 grams of charas was recovered from the accused—Record showed that evidence of witnesses was coherent and confidence inspiring—Said witnesses had corroborated each other on all material points/recovery and the manner in which recovery was effected from the possession of accused—Contention of the accused that no private person had been associated to witness the recovery, as such, the recovery was foisted, was devoid of force as by virtue of S. 25 of the Control of Narcotic Substances Act, 1997, application of S. 103, Cr.P.C., had been excluded in such cases—Defence had failed to point out anything in the cross-examination of the prosecution witnesses that charas had been foisted upon the accused by the police—Defence had also failed to point out enmity of the Police Officials with the accused and even the accused had taken no such plea in his statement recorded under S. 342, Cr.P.C.— All the prosecution witnesses  were  straightforward and consistent, bracing the cross-examination without any embarrassment—Evidence of witness was not rendered untrustworthy only on account of their being official witnesses—Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused—Appeal against conviction was dismissed accordingly.

2023  YLR  1829   ISLAMABAD

AHMED ALI VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 342—Possession of narcotics—Appreciation of evidence—Specific plea taken by accused—Prosecution case was that twenty kgs charas (gardha) was recovered from the secret cavities of the vehicle of the accused—Accused had taken a specific stance in his statement under S. 342, Cr.P.C., that nothing was recovered in shape of narcotics from him—Accused stated that he was a passenger in alleged car and got a lift from “P” to “R” from the driver; that Investigating Officer let off the said driver after getting bribery from him and roped him in the case; and that at the time of arrest, he also told the Investigating Officer that he had no concern with the alleged car as well as narcotics but instead of leaving him, Investigating Officer falsely implicated him in the case—Even when particular question was confronted to the accused in his statement under S. 342, Cr.P.C., qua the vehicle being driven by him, he had again reiterated the answer and further improved his version with additional claim that he also told the Investigating Officer that he got lift in the car and was heading towards “R” to see ailing friend who was admitted in hospital; and that Investigating Officer deliberately did not take any step against the said real culprit in spite of issuing summon against him—Said specific stance of the accused was to be considered with reference to Art. 122 of the Qanun-e-Shahadat, 1984, “when any fact was especially within the knowledge of any person” the burden of proving that fact was upon him—Said aspect led to an irresistible conclusion that burden of proving that particular fact which was in the knowledge of accused was upon him, who was best man to discharge that onus—However no witness had been produced by the accused, therefore, his entire defence version had lost its significance in the case—Appeal against conviction was dismissed, in circumstances.

2023  YLR  1829   ISLAMABAD

AHMED ALI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Non-production of official who took the complaint to Police Station—Inconsequential—Prosecution case was that twenty kgs charas (gardha) was recovered from the secret cavities of the vehicle of the accused—Defence objected that Police Constable who had taken the complaint to the Police Station for registration of FIR was not produced—However, non-production of said Police Constable was to be considered an irregularity having mitigating effect and nothing more at present stage, especially when 20 Kgs charas had been proved to be recovered from a single person i.e. accused—Appeal against conviction was dismissed, in circumstances.

2023  YLR  1829   ISLAMABAD

AHMED ALI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Prosecution case was that twenty kgs charas (gardha) was recovered from the secret cavities of the vehicle of the accused—In the present case, the star witness Police Constable, who was recovery witness and complainant/Inspector had been cross-examined at length qua the mode and manner of recovery of contraband but they remained consistent and no discrepancy had been noted—Even vehicle along with its key had been placed on record which further confirmed the prosecution case against the accused—However, complainant acknowledged that he had not verified the record of registration book of vehicle in question through Excise and Taxation Department as letter was written for verification but no reply had been received till recording of his testimony—Said aspect was not to be considered as beneficial to the accused—Appeal against conviction was dismissed, in circumstances.

2023  YLR  1829   ISLAMABAD

AHMED ALI VS State

Ss. 9(c) & 36—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 & 6—Possession of narcotics—Appreciation of evidence—Report of Government analyst—Expert opinion—Scope—Prosecution case was that twenty kgs charas (gardha) was recovered from the secret cavities of the vehicle of the accused—Record showed that Chemical Analyst Report concluded that samples contained charas (gardha)—Though Trial Court had summoned Senior Scientific Officer appeared as Court Witness and stated that he received 10 sealed parcels, conducted analysis, observed all protocols and care had been applied while the result had separately been made in the register, and report was prepared—Said witness further stated that he also produced protocol form in original which contained complete details of test—Defence heavily relied upon the non-availability of protocols mentioned in exhibited report; however R. 6 of Control of Narcotic Substances (Government analysts) Rules, 2001, was mandatory to the extent of mentioning of full protocols in the report of Government analyst while considering such aspect—Trial Court had rightly summoned the author of that report who came in witness box and gave his testimony, explained the report as a result whereof the defence plea of test conducted without protocol lost its admissibility and reliability—Appeal against conviction was dismissed, in circumstances.

2023  PCrLJ  1712   ISLAMABAD

GUL TAJ VS State

4. 9(c)—Criminal Procedure Code (V of 1898), S. 340(2)—Recovery of narcotic substance—Appreciation of evidence—Specific plea—Proof—Heroin weighing 2500 grams was recovered from accused—Trial Court convicted the accused and sentenced him to imprisonment for seven years—Plea raised by accused was that investigating officer was biased against him which resulted in registration of present case—Validity—Right from the recovery till deposit in NIH Laboratory Islamabad, chain of safe transmission of narcotic samples and custody was established without any doubt—Contraband was recovered on 4.7.2020 and within two days deposited in NIH Laboratory on 6.7.2020 and during intervening period it remained in safe custody—In order to substantiate alleged biasness of investigating officer, not a single question was put to any of the prosecution witnesses that accused apprehended from the place as pleaded or was kept in illegal confinement along with two others—In absence of statement of accused in terms of S. 340(2), Cr.P.C. and any defense evidence, plea taken by accused was nothing but a bald statement—Prosecution successfully proved its case beyond any shadow of doubt, in circumstances—High Court declined to interfere in conviction and sentence awarded by Trial Court to accused as recovery of huge quantity of narcotics; happening of occurrence; separating samples from each packets in prescribed manner; sending the same to NIH Laboratory without any break in chain; and reports of NIH Laboratory confirmed nature of contraband as heroin— Appeal was dismissed, in circumstances.

2023  MLD  793   ISLAMABAD

AQEEL MIRZA VS State

Ss. 9(c) & 34—Criminal Procedure Code (V of 1898), S. 516-A—Transportation of narcotics—Articles connected with narcotics—Order for custody and disposal of property pending trial in certain cases—Scope—Appellant assailed order passed by Trial Court whereby his application for superdari of vehicle, from which narcotics was recovered, was dismissed—Appellant had taken self-contradictory pleas regarding the person having possession of the vehicle—Appellant could not produce any convincing evidence to the effect that he had no knowledge of the occurrence—Prima facie, the appellant was in knowledge that his vehicle was being used for carrying huge quantity of narcotics—Appellant was not entitled for superdari of the vehicle—Appeal was dismissed.

2023  YLRN  81   ISLAMABAD

QAISER KHAN VS State

Ss. 9(c) & 48—Recovery of narcotic substance—Appreciation of evidence—Charas weighing 2100 grams was recovered from accused who was convicted by Trial Court and sentenced to imprisonment for 3 years—Validity—When prosecution was able to prove its case on its salient features, then unnecessary technicalities should not be allowed to hamper the very purpose of law on the subject—Recovery of huge quantity of narcotic, separating the samples from each packet in a prescribed manner and sending them to chemical examiner, report of chemical examiner and statements of prosecution witnesses left no room to come to a different conclusion what had been arrived at by Trial Court—Accused failed to extract any material discrepancies or contradictions from statements of prosecution witnesses—High Court declined to interfere in conviction and sentence passed by Trial Court as prosecution had successfully proved its case against accused beyond any shadow of reasonable doubt—Appeal was dismissed, in circumstances.

2023  PLD  11   HIGH-COURT-AZAD-KASHMIR

MUHAMMAD WASEEM MUGHAL VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 29—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4—Possession of narcotics—Dispatch of sample for test or analysis—Bail, grant of—Scope—Accused was alleged to have been found in possession of 1220 grams of charas and 30 bore pistol—Recovered contraband under R. 4 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, was required to be sent to the nearest narcotic testing laboratory by the Investigating Agency within 3 days but this mandatory requirement was not complied with—Arrow of presumption of illicit recovered articles as per S. 29 of Control of Narcotic Substances Act, 1997, to some extent had been fixed against the accused but it needed to be taken into consideration only when the Investigation Agency had stricto sensu given adherence to the codal modalities and mandatory provisions of special law—Accused was admitted to bail, in circumstances.

2022  YLR  1391   SUPREME-COURT-AZAD-KASHMIR

FARRAH AYYUB VS State

Ss. 9(c) & 15—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4—Transportation of narcotics—Aiding, abetment or association in narcotics—Dispatch of sample for test or analysis—Appreciation of evidence—Benefit of doubt—Safe custody—Non-production of sample-bearer—Contra-dictory statements— Scope— Accused persons were alleged to have been apprehended while transporting 03 kilograms of charas—Safe custody of the recovered substance at the local police station was not established by the prosecution during trial—Even safe transmission of the samples of recovered substance from local police station to the office to Chemical Examiner was not established— Sample-bearer was not produced before the Trial Court—Alleged contraband was sent to Forensic Laboratory after a delay of eight days whereas according to R. 4 of Control of Narcotic Substances (Government Analysts) Rules, 2001 the sealed parcel had to be deposited within seventy-two hours after seizure—Sample was taken from only one of the three bundles and not from each bundle separately—Discrepant statements of prosecution witnesses regarding weight and colour of sample had cast serious doubt on the credibility of the prosecution case—Impugned judgments of both the courts below were set aside and the accused persons were acquitted of the charges levelled against them—Appeals were allowed, in circumstances.

2022  SCMR  1784   SUPREME-COURT

NAVEED AKHTAR VS State

1. 9(c)— Possession of narcotics— Reappraisal of evidence—Narcotics Analysis Report confirms that the recovery, effected from the accused, on his disclosure, was charas—Forensic report regarding narcotics was strictly in accordance with the principles laid down for such purpose by the Supreme Court—Accused in his statement recorded under section 342, Cr.P.C. alleged false implication and mala fide but record of the case would show that he could not explain and establish the same—No reason or factum of malice was found on record for implicating the accused falsely or with any mala fide—Recovery of narcotics was proved by a police official and the said recovery was also testified by another police official—Non-production of other recovery witness/police official had no bearing on the merits of the case—Appeal was dismissed, and conviction and sentence awarded to accused under section 9(c) of the Control of Narcotic Substances Act, 1997 was maintained.

2022  SCMR  1641   SUPREME-COURT

QAISER VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Possession of narcotics—Safe custody and safe transmission of samples to the Forensic Science Laboratory—Significance—Representative samples of the alleged drug must be kept in safe custody and undergo safe transmission from the stage of recovery till its submission to the office of the Government analyst—Non-establishing the said facts would cast doubt and would impair and vitiate the conclusions and reliability of the report of the Government analyst, thus rendering it incapable of sustaining conviction.

2022  SCMR  1627   SUPREME-COURT

AKHTAR GUL VS State

16. 9(c)—Possession of 50 kilograms of charas—Reappraisal of evidence—Safe custody and safe transmission of samples to the Forensic Science Laboratory not established—Benefit of doubt—Recovery was effected on 16-10-2011, whereas according to the report of Forensic Science Laboratory (FSL), the sample parcels were received there on 21-10-2011 through a constable—Neither the Moharrar who kept the sample parcel in the Malkhana from 16.10.2011 to 21.10.2011 nor the constable was produced by the prosecution to establish the safe custody and safe transmission of the sample parcels to the concerned laboratory—Since safe custody and safe transmission of the samples had not been proved by the prosecution, and as such illegality could not be ignored, it could not be held that the prosecution had succeeded in establishing its case against the accused beyond any reasonable doubt—Jail petition was converted into appeal and allowed, and accused was acquitted of the charge by extending benefit of doubt to him.

2022  SCMR  1422   SUPREME-COURT

ISHAQ VS State

1. 9(c)—Possession and transportation of narcotics—Reappraisal of evidence—Benefit of doubt—Vehicle from which the narcotics were recovered was never produced before the court with a lame excuse that the vehicle was burnt but even no part etc. thereof was produced—Ownership of the said vehicle was never ascertained by the prosecution—Neither the safe custody nor the safe transmission of the sealed sample parcels to the concerned laboratory was established by the prosecution because neither the Moharrar nor the Constable concerned who deposited the said parcels in the concerned laboratory was produced—Sample parcels were received in the forensic laboratory three days after the recovery of narcotics and prosecution was silent as to where these sample parcels remained during this period, meaning thereby that the element of tampering was quite apparent in the present case—Appeal was allowed, and accused was acquitted of the charge by giving him benefit of doubt.

2022  SCMR  1422   SUPREME-COURT

ISHAQ VS State

1. 9—Possession of narcotics—Prosecution failing to establish safe custody and safe transmission of samples from the police to the Forensic Science Laboratory—In a case containing the said defect on the part of the prosecution it cannot be held with any degree of certainty the prosecution had succeeded in establishing its case against an accused person beyond any reasonable doubt.

2022  SCMR  1375   SUPREME-COURT

ZAFAR IQBAL VS State

1. 9(c)—Possession and transportation of 3 kilograms of cannabis—Reappraisal of evidence—Accused was caught red handed by the Police while he was driving a truck and from the secret cavities of the truck, 55 plastic gunny bags containing poppy straw were recovered—Each bag weighed 30 kilograms, therefore, the total weight became 1650 kilogram—One kilogram of poppy from each bag was taken out for chemical examination, and the same was sealed up in separate envelops and sent to the office of Chemical Examiner—Prosecution relied upon the statements of an Excise Inspector and another official witness—Both said witnesses narrated the prosecution story in a natural manner and remained consistent throughout and their testimony could not be shattered by the defence despite lengthy cross-examination—Said witnesses had no enmity with the accused to falsely implicate him in the present case—Even otherwise a huge quantity of 1650 kilograms of poppy straw in no circumstances could be planted by the Investigating Officer of his own—Conviction of accused was maintained—Appeal was partly allowed.

2022  SCMR  1375   SUPREME-COURT

ZAFAR IQBAL VS State

1. 9—Narcotic cases—Testimony of official witnesses—Such testimony is as good as any other private witness unless it is proved that they have animus against the accused—Reluctance of general public to become witness in cases has become a judicially recognized fact—No legal bar or restriction has been imposed on considering statement of official witnesses—Police/official witnesses are as good witnesses as any other and could be relied upon, if their testimonies remain un-shattered during cross-examination—Statements of the official witnesses are sufficient enough to sustain conviction of an accused.

2022  SCMR  1375   SUPREME-COURT

ZAFAR IQBAL VS State

Ss. 2(t) & 9—Poppy plant, characteristics of—Poast—Poppy seeds—Only sack/pouch/basket of the whole poppy plant, is called poast and the same is the only part of the poppy plant excluding its seeds, which contains morphine—In common parlance, it has been seen that often that stems and leaves of the poppy plants are used as animal food—Poppy straw is derived from the plant ‘Papaver somniferum’, which has been cultivated in many countries of Europe and Asia for centuries; this has medicinal impact as well, which is largely used as a tonic for wellness of nervous system—Purpose of its cultivation was actually the production of poppy seeds, which are used as a food stuff and as a raw material for manufacturing poppy-seed oil, used for making various varnishes, paints and soaps etc.—Therefore, every cultivation of poppy straw unless it is proved that it is made for the sole purpose of extracting narcotics after a proper method cannot be considered a criminal act.

2022  SCMR  1375   SUPREME-COURT

ZAFAR IQBAL VS State

Ss. 2(t)(iii) & 9(c)— Possession and transportation of 1650 kilograms of poppy straw—Reappraisal of evidence—Sentence, reduction in—Report of the Chemical Examiner failing to reveal percentage of morphine in the mixture and also as to what quantity of recovered whole poppy plants was sack/pouch/doda—In the FIR as well as in the recovery memo it had been mentioned that poast/poppy straw was recovered in plastic gunny bags but there is no mention that recovered items were got grinded or mixed and then sent to the Chemical Examiner—On the other hand, contents of the report of Chemical Examiner indicate that samples sent to it were in grinded form i.e. grinded material of black and yellow coloured straws, seeds and stalks, which means that whole poppy plant would have been recovered from the accused—Perusal of section 2(t)(iii) of the Control of Narcotic Substances Act, 1997, showed that ‘poast’ in the mixture form would only be considered a narcotics substance within the meaning of the Act if the same contained 0.2 percent of morphine—However, the report of the Chemical Examiner reveals no such percentage – Report of the Chemical Examiner, left no doubt that the recovered poast from the possession of the accused was in grinded/mixed shape, therefore, the report of the Chemical Examiner ought to have mentioned the percentage of morphine in the whole mixture—Record also did not show as to whether from the 1650 kilograms of poast, which was in the shape of whole poppy plants, how much quantity was the sack/pouch/doda as it is only the sack/pouch/doda which contained narcotic substance—Therefore, in absence of such report, it was difficult to determine as to whether the case against the accused fell within the purview of section 9(a), 9(b) or 9(c) of the Act—In circumstances, conviction of accused was maintained, however his sentence of imprisonment for life was reduced to that already undergone—Appeal was partly allowed.

2022  SCMR  1248   SUPREME-COURT

Raja EHTISHAM KIYANI VS State

Ss. 9(c) & 29—Possession of 1500 grams of heroin—Reappraisal of evidence—Plea of false implication due to previous animosity rejected—Investigation Officer swiftly concluded various investigative steps/requirements to bring the prosecution to its logical end—Attestation of inventories by other members of the police contingent confirmed their presence at the scene of occurrence—Such official business was protected by statutory presumption of being in order/genuine—Insofar as allegation of previous animosity on account of alleged demand of bribe by one of the members of the police party, against whom, the accused claimed to have moved some application was concerned, nothing was brought on the record to even obliquely suggest an ongoing previous animosity, prompting the police to impose false recovery of a substance—Such plea of accused surfaced, surprisingly late in the day without any attempt to take the departmental recourse and, thus, at best could be viewed as an afterthought and at worst a ploy to subvert the prosecution—Even during the trial, the accused did not enter the witness box in disproof of charge or to drive home his plea with a view to discharge adverse statutory presumption provided in section 29 of the Control of Narcotic Substances Act, 1997—Petition for leave to appeal was dismissed, leave was refused and conviction and sentence of accused were maintained.

2022  SCMR  1145   SUPREME-COURT

MUHAMMAD RASOOL VS State

11. 9(c)—Possession and transportation of 11.5 kilograms of cannabis—Reappraisal of evidence—Forensic report contained a detailed description of analysis undertaken by the Chemical Examiner by mentioning each test, carried out to confirm the narcotic character of the samples—Relevant witnesses appeared in court to establish safe custody of the contraband as well as transmission of samples to the laboratory—Conviction of accused under section 9(c) of the Control of Narcotic Substances Act, 1997, and sentence of imprisonment for life were maintained—Petition for leave to appeal was dismissed and leave was refused.

2022  SCMR  1145   SUPREME-COURT

MUHAMMAD RASOOL VS State

1. 9—Narcotic cases—Narcotic sealed in parcels at the time of its seizure and mentioned in the recovery memo—De-sealing of parcels during the course of cross-examination on the request of defence counsel—Plea of discrepancy in the weight and texture of the contraband as mentioned in the recovery memo and that found at the time of de-sealing of parcels during cross-examination—Supreme Court deprecated such practice of defence counsel moving a belated application for de-sealing of parcels to find out such discrepancy, notwithstanding, a plea of denial and false implication from the beginning of the trial, and observed that it was rather intriguing to comprehend as to how an accused pleading innocence, all of a sudden in the midst of the trial, learnt about a change, having occurred in weight or texture of the contraband kept in safe custody; that there was no occasion for the trial Judge, in the absence of any plausible reason, to obligingly accede to such a request for an exercise, manifestly calculated to subvert the prosecution case; that such discrepancy was not possible without connivance of Moharrir Malkhana and the Naib Court, therefore, it was imperative for the prosecution to keep a watchful and vigilant eye upon its unscrupulous functionaries so as to ensure that stream of justice ran pure and clean, and that any attempt or act to destroy or contaminate evidence lawfully collected was a cognizable offence in itself, commission whereof, must be visited with zero tolerance.

2022  SCMR  1097   SUPREME-COURT

LIAQUAT ALI VS State

1. 9(c)—Narcotic cases—Testimony of police officials, reliance upon—Scope—Testimony of police officials is as good as any other private witness unless it is proved that they have animus against the accused—Reluctance of general public to become witness in such like cases has become judicially recognized fact and there is no impediment to consider statement of official witnesses, as no legal bar or restriction has been imposed in such regard—Police officials are as good witnesses and could be relied upon, if their testimonies remain un-shattered during cross-examination.

2022  SCMR  1097   SUPREME-COURT

LIAQUAT ALI VS State

1. 9(c)—Possession and transportation of 59 kilograms of charas—Reappraisal of evidence—Accused persons were caught red handed in broad daylight by the police and a huge quantity of 59 kilograms of contraband charas packed in 58 packets was recovered from secret cavities of the car, which was being driven by the one of the accused, whereas the other accused was sitting on the rear seat—Prosecution’s case hinged upon the statements of police officials, who narrated the prosecution story in a natural manner and remained consistent throughout and their testimony could not be shattered by the defence despite lengthy cross-examination—Said witnesses had no enmity with the accused persons to falsely implicate them in the present case—Even otherwise a huge quantity of 59 kilograms of charas in no circumstances could be planted by the Investigating Officer of his own—Report of the Chemical Examiner showed that from all the 58 packets of recovered charas, 50 grams charas was separated from each packet and consumed in analysis and the same was found to be contraband charas.

2022  SCMR  1052   SUPREME-COURT

SUBHANULLAH VS State

1. 9(c)—Possession and transportation of narcotics—Reappraisal of evidence—Safe custody and safe transmission of samples to the Forensic Science Laboratory not established—Benefit of doubt—Prosecution had failed to establish the safe custody of sample parcels in the Malkhana as the Moharar Malknana was not produced—Police official who allegedly transmitted the sample parcels to the concerned laboratory, was also not produced, hence prosecution failed to prove safe transmission of sample parcel to concerned laboratory—No explanation was provided for withholding such important piece of evidence—In view of such defect on the part of the prosecution it could not be held with any degree of certainty that the prosecution had succeeded in establishing its case against the accused beyond any reasonable doubt—Petition for leave to appeal was converted into appeal and allowed, and while extending benefit of doubt, the accused was acquitted of the charge.

2022  SCMR  1006   SUPREME-COURT

MUHAMMAD SHOAIB VS State

1. 9(c)—Possession and transportation of narcotics—Reappraisal of evidence—Safe custody and safe transmission of samples to the Forensic Science Laboratory not established—Benefit of doubt—Police official/witness claimed that the complainant/police official had handed over the sample parcels to him which he further handed over to Moharrar Investigation for safe custody for sending them to Forensic Science Laboratory—Said Moharrar Investigation who allegedly kept the sample parcels in safe custody was never produced by the prosecution—Safe custody of sample parcels was not established by the prosecution—Police constable, who allegedly took the sample parcels to the concerned laboratory was also not produced—In such eventuality, prosecution failed to establish safe custody and safe transmission of the sample parcels to the concerned quarter and the prosecution could not give any plausible explanation for not producing said important witnesses—Said defect in the prosecution case went into the root of the case creating serious doubt regarding the narcotics and its recovery—Petitions for leave to appeal were converted into appeals and allowed, and while extending benefit of doubt to them, the accused persons were acquitted of the charge.

2022  SCMR  905   SUPREME-COURT

FAISAL SHAHZAD VS State

1. 9(c)—Narcotic cases—Testimony of police officials, reliance upon—Scope—Testimony of police officials is as good as any other private witness unless it is proved that they have animus against the accused—Reluctance of general public to become witness in such like cases has become judicially recognized fact and there is no impediment to consider statement of official witnesses, as no legal bar or restriction has been imposed in such regard—Police officials are as good witnesses and can be relied upon, if their testimonies remain un-shattered during cross-examination.

2022  SCMR  905   SUPREME-COURT

FAISAL SHAHZAD VS State

1. 9(c)—Possession of 10 kilograms of charas and 5 kilograms of opium—Reappraisal of evidence—Case was lodged with promptitude on the basis of spy information, which was supplied to the law enforcing agency prior to conducting raid by the raiding party comprising of number of police officials and it had already established a picket at the particular place on the basis of the said information—Accused was caught red handed in broad daylight by the police and a huge quantity of contraband charas and opium was recovered from him, which was contained in a sack/gatoo in fifteen separate packets—Police officials separated 10 grams of charas and 10 grams of opium from each packet in the prescribed manner and put the samples in 15 separate packets and then sent the same to the office of Chemical Examiner for its analysis—Safe chain of custody of the recovered narcotics was not compromised at all—Reports of the Chemical Examiner showed that all the 15 packets contained contraband charas and opium—Prosecution case hinges upon the statements of police officials, who narrated the prosecution story in a natural manner and remained consistent throughout and their testimony despite lengthy cross-examination—Said witnesses had no enmity with the accused to falsely implicate him in the present case—Even otherwise a huge quantity of contrabands could not be planted by the Investigating Officer of its own—Petition for leave to appeal was dismissed, leave was refused, and conviction and sentence of accused was maintained.

2022  SCMR  905   SUPREME-COURT

FAISAL SHAHZAD VS State

1. 9(c)—Possession of 10 kilograms of charas and 5 kilograms of opium—Reappraisal of evidence—Sack/gatoo containing the recovered narcotic not produced in evidence—Not relevant—In the present case the accused was carrying narcotics in a sack/gatoo, which is usually made of polythene/cloth/plastic and is commonly used by the people in the society to carry heavy things and the same can easily carry a weight of 15 kilograms (equivalent to the weight of the narcotics recovered from the accused)—Gatoo is just a cloth or plastic bag, so the real thing to consider at in the present case was that the accused was carrying a huge quantity of narcotics in it, therefore, non-production of the gatoo was of no avail to the accused—Petition for leave to appeal was dismissed, leave was refused, and conviction and sentence of accused was maintained.

2022  SCMR  905   SUPREME-COURT

FAISAL SHAHZAD VS State

1. 9—Narcotic cases—Conviction—Scope—When the prosecution is able to prove its case on its salient features then un-necessary technicalities should not be allowed to hamper the very purpose of the law on the subject.

2022  SCMR  864   SUPREME-COURT

ZAFAR KHAN  VS State

1. 9(c)— Possession and transportation of 25 kilograms of cannabis— Reappraisal of evidence— Contradictory stance of complainant (police official) and recovery witness (police official) with respect to secret cavities of the vehicle—Complainant alleged that beneath the switch board of the vehicle, secret cavities were found—To the contrary, the recovery witness, stated before the Trial Court that one packet of charas was recovered from beneath the switch board and upon opening the switch board, secret cavities were found there and the remaining packets were recovered therefrom—Record also showed that there was space only for the air conditioner under the switch board, wherefrom the recovery of charas had been alleged—Therefore, the witnesses were not certain about the exact location of the cavities and recovery of the contraband material therefrom—Jail petition was converted into appeal and allowed, and accused persons were acquitted of the charges against them.

2022  SCMR  864   SUPREME-COURT

ZAFAR KHAN  VS State

1. 9(c)— Possession and transportation of 25 kilograms of cannabis—Reappraisal of evidence—Recovery memo, witness of—Doubtful and contradictory testimony—Complainant (police official) when appearing as a prosecution witness before the Trial Court stated that the contraband material was taken into possession through the recovery memo but did not mention the name of the witnesses in whose presence, the recovery memo was prepared nor did he mention their signatures upon it—However, another police official, claiming to be the recovery witness, appeared before the Trial Court, and contended that he signed the recovery memo, but did not give details about the document, which he claimed to have signed nor produced the same in the Court; he did not refer to the recovery memo, which was produced by the complainant—Alleged recovery witness was not even confronted with the recovery memo at the time of recording his statement to confirm the contents of the same and his signatures upon it—Moreover, complainant did not say about the signatures or identification mark of any of the recovery witness upon any parcel allegedly prepared at the place of the occurrence—Recovery witness also did not utter a single word with regard to the preparation of the parcels of the contraband material in his presence at the spot nor did he mention signing or putting mark of identification upon any of the parcels, which showed that if any parcel was prepared by the complainant, it was not witnessed by the recovery witness—Under such circumstances, it was not safe to believe that the material contained in these parcels, relied upon by the complainant was the same, which was alleged to have been recovered from the accused persons—Complainant and the only alleged witness of the recovery did not corroborate each other on material points, therefore, their statements did not inspire confidence about the reliability of the recovery memo, as such, the prosecution had not been able to establish the recovery of the contraband material from the accused persons—Jail petition was converted into appeal and allowed, and accused persons were acquitted of the charges against them.

2022  SCMR  864   SUPREME-COURT

ZAFAR KHAN  VS State

1. 9(c)—Possession and transportation of cannabis—Reappraisal of evidence—Samples—Safe custody of samples and their transmission to the Chemical Examiner— Significance— Prosecution had the responsibility to prove the recovery of the contraband material from the accused, its safe custody and sending the samples for chemical analysis without undue delay to avoid any possibility of substitution—Where the recovered contraband material, including the pieces deducted for the purpose of chemical analysis were not in safe custody and transmission of the samples to the Chemical Examiner was doubtful, possibility of their tampering could not be ruled out.

2022  SCMR  864   SUPREME-COURT

ZAFAR KHAN  VS State

1. 9(c)—Possession of narcotics—Recovery memo, preparation of—Scope and purpose—In the cases of narcotic substances, recovery memo is a basic document, which should be prepared by the Seizing Officer, at the time of the recovered articles, containing a list thereof, in presence of two or more respectable witnesses and memo has to be signed by such witnesses—Main object of preparing the recovery memo at the spot and with signatures of the witnesses is to ensure that the recovery is effected in presence of the marginal witnesses, honestly and fairly, so as to exclude the possibility of false implication and fabrication—Once the recovery memo is prepared, the next step for the prosecution is to produce the same before the Trial Court, to prove the recovery of the material and preparation of the memo through the scribe and the marginal witnesses.

2022  SCMR  840   SUPREME-COURT

MUHAMMAD YOUSAF  VS State

56. 497—Constitution of Pakistan, Art. 185(3)—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51—Recovery of 56.4 kgs of cannabis concealed in cavities of a truck—Bail, refusal of—Considerable cache comprising 56.4 kgs cannabis was concealed in different cavities of the truck, discovered pursuant to piecemeal disclosures by the accused persons through elaborate investigate efforts involving steel cutters and, thus, it was humanly not possible for the police contingent to conclude the exercise in one go; they proceeded with the registration of cases as and when the recoveries became available and this certainly did not allow, within the limited space of tentative assessment, to entertain any manner of doubt for imposition of such a huge cache as in the given facts and circumstances of the case, there was no smarter way to better systematize the conclusion of investigative proceedings—Material collected coupled with the statements of the witnesses clearly attracted the mischief of S. 51 of the Control of Narcotic Substances Act, 1997, standing as an impediment to release of accused persons on bail—Petition or leave to appeal was dismissed, and accused persons were refused bail.

2022  SCMR  819   SUPREME-COURT

ABDUL GHAFOOR VS The STATE

1. 9(c)—Possession and transportation of 500 kilograms of cannabis—Reappraisal of evidence—Safe transmission of samples to office of Chemical Examiner not established—Heinousness of the charge and huge quantity of the alleged contraband, notwithstanding, the prosecution was under a bounden responsibility to drive home the charge by proving each limb of its case that essentially included production of the witness, tasked with the responsibility of transmitting the samples to the office of Chemical Examiner—Failure of the prosecution in such regard cast away the entire case—Petition for leave to appeal was converted into appeal and allowed; the impugned judgment was set aside; and accused was acquitted of the charge.

2022  SCMR  317   SUPREME-COURT

AJAB KHAN VS State

1. 9(c)—Criminal Procedure Code (V of 1898), Ss. 164 & 364—Possession and transportation of 19 kilograms of charas—Reappraisal of evidence—Judicial confession before Magistrate—Use of a printed proforma for recording confession of accused—Propriety—Two days after of the occurrence, the accused had made a confessional statement before the Judicial Magistrate in which he confessed his guilt and stated that because of poverty he had committed the crime—Printed proforma was only a memorandum of enquiry through which some basic questions were asked from the accused—Confessional statement of the accused was separately recorded and not on a printed proforma—Certificate issued by the Magistrate in such regard clearly showed that although the accused gave the statement in Pashto language but the same was translated and read over to him—Accused was also given 30 minutes time to think over before recording his confessional statement—Judicial Magistrate who had recorded the statement of the accused had also appeared before the Trial Court as a witness and had duly testified the same; he was cross-examined at length but nothing favourable to the accused could be brought on record—Petition for leave to appeal was dismissed, leave was refused and conviction and sentence recorded against the accused was maintained.

2022  SCMR  317   SUPREME-COURT

AJAB KHAN VS State

1. 9(c)—Possession and transportation of 19 kilograms of charas—Reappraisal of evidence—Accused was caught red handed by the police and 19 packets of charas garda, each packet weighing 1000 grams (total 19 kilogram), was recovered from beneath the rear seat of the car, which was being driven by the accused—From each packet, 4 grams of charas was separated in 19 separate parcels for the purpose of chemical examination and the remaining was sealed into a separate parcel—Prosecution’s case hinged upon the statements of two police officials, who narrated the prosecution story in a natural manner and remained consistent throughout and their testimony could not be shattered by the defence despite lengthy cross-examination—Said witnesses had no enmity with the accused to falsely implicate him in the present case as a huge quantity of charas could not be foisted upon the accused to fabricate a fake case—Police officials separated the samples from each packet in the prescribed manner and sent the same to the office of Forensic Science Laboratory—Report of the Forensic Science Laboratory showed that all the 19 samples were subjected to chemical and instrumental analysis and the same were found to be narcotic substance—Nothing on record suggested that the safe chain of custody of the samples was compromised—Petition for leave to appeal was dismissed, leave was refused and conviction and sentence recorded against the accused was maintained.

2022  SCMR  317   SUPREME-COURT

AJAB KHAN VS State

1. 9—Possession of narcotics—Testimony of police officials—Such testimony was as good as any other private witness unless it was proved that the police officials had animus against the accused.

2022  PLD  281   SUPREME-COURT-AZAD-KASHMIR

SHARAFAT KHAN VS State

Ss. 9 & 36—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4—Constitution of Pakistan, Art. 10A—Possession of narcotics—Representative sample sent to Government analyst, nature of—[Per Syed Mansoor Ali Shah, J [Majority view]: Representative sample is to be collected from every packet/cake/slab of the alleged narcotic drug and sent for analysis to the Chemical Examiner—Right to fair trial of the accused under Art. 10A of the Constitution requires that the sample drawn from the alleged narcotic drug must be truly representative of the alleged narcotic drug recovered and therefore must be drawn from all the physically separate and independent units of the alleged narcotic drug]—[Per Qazi Muhammad Amin Ahmed, J [Minority view]: Not essential that every micro part of the contraband in single packet is to be separated for analysis nor is so contemplated by the Control of Narcotic Substances (Government Analysts) Rules, 2001].

2022  PLD  281   SUPREME-COURT-AZAD-KASHMIR

SHARAFAT KHAN VS State

Ss. 9(c) & 36—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4—Constitution of Pakistan, Art. 10A—Possession of 25,000 grams of charas—Re-appraisal of evidence—Sample sent to Government analyst not collected from each independent slab of recovered narcotic—Sentence, reduction in—[Per Syed Mansoor Ali Shah, J [Majority view]: In the present case, 25 packets were recovered from the accused, each having 14 separate slabs of the alleged narcotic drug; thus, in fact, there were 350 (25 x 14) separate physically independent units of the alleged narcotic drug—In order to burden the accused with the liability of the entire quantity of the alleged narcotic drug recovered, the representative sample had to be taken from every physically separate and independent unit of the alleged narcotic drug, i.e., from all the 350 slabs of the alleged narcotic drug recovered from the accused—However only 25 samples of 5 grams were collected from each of the 25 packets, without specifying whether it was taken from one slab out of the 14 found in each packet, or that each 5-gram sample was obtained from all of the 14 slabs found in one packet—Prosecution had not even argued that the representative sample was taken from each of the 350 slabs, rather it is an admitted fact on part of the prosecution that 5-gram sample was taken from only one slab out of the 14 found in each packet—Thus, the prosecution was found to have proved only those parts of the charas allegedly recovered from the appellant to be the narcotic drug of which samples were taken and sent for analysis to the Forensic Science Laboratory , that is, about 1785 grams, not 25,000 grams as alleged—Accused had already served 9-years, 1-month and 20-days in prison—In view of the proved quantity of the charas recovered from him as being a narcotic drug, i.e., 1785 grams, his conviction was maintained but his sentence of life imprisonment was reduced to the imprisonment term already undergone by him while the fine of Rs.200,000/- was maintained]—[Per Qazi Muhammad Amin Ahmed, J. [Minority view]: Contents of the seizure memo confirmed that contraband in each packet comprised of integrated layers, inseparably constituting a composite unit and, thus, 5 grams separated from the corner of each packet squarely presented a representative sample—Samples were not only taken from each packet, they were kept separately for analysis that unambiguously confirmed the narcotic character of the seized contraband and, thus, through no mode of interpretation it could be possibly inferred that the remainder of the parcel was made up of a substance other than cannabis—Prosecution had established each limb of its case on the strength of “proof beyond doubt” from safe custody to transmission for forensic confirmation; there was no space to entertain any hypothesis other than accused’s guilt—Sentence (of life imprisonment) awarded to the accused was mandatory in view of proviso to S.9 of the Control of Narcotic Substances Act, 1997]—Appeal was partly allowed.

2022  SCMR  2149   SUPREME-COURT

SHAH ZAMEEN VS State

1. 9(c)—Possession of narcotics—Reappraisal of evidence—Safe custody and safe transmission of samples to the Forensic Science Laboratory not established—Possibility of tampering with and fabrication of samples—Benefit of doubt—Although Moharrar appeared in the court and stated that he kept the sample parcels in the Malkhana but he did not mention that to whom he delivered the sample parcels for taking the same to the office of Chemical Examiner— Prosecution did not produce any witness who could have claimed that he had delivered the sample parcels to the concerned laboratory intact—Report of Chemical Examiner did not disclose the name of the person who had brought the said sample parcels to the said laboratory—Safe transmission of the sample parcels to the concerned laboratory had not been established by the prosecution and the element of tempering with and fabrication (of the samples) could not be excluded—Appeal was allowed, and accused was acquitted of the charge by extending benefit of doubt to him.

2022  SCMR  2149   SUPREME-COURT

SHAH ZAMEEN VS State

1. 9— Possession of narcotics—Safe custody of the recovered substance and its safe transmission from the local police station to the office of the Chemical Examiner not established by the prosecution—In a case containing the said defect on the part of the prosecution, it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond the shadow of doubt.

2022  SCMR  2121   SUPREME-COURT

ABDUL GHANI VS State

1. 9(c)—Possession of narcotics—Safe custody of the recovered substance and its safe transmission from the local police station to the office of the Chemical Examiner not established by the prosecution—In a case containing the said defect on the part of the prosecution, it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond the shadow of doubt.

2022  SCMR  2121   SUPREME-COURT

ABDUL GHANI VS State

1. 9(c)—Qanun-e-Shahadat (10 of 1984), Art. 129(g)—Possession of narcotics—Reappraisal of evidence—Safe custody and safe transmission of samples to the Forensic Science Laboratory not established—Benefit of doubt—According to the report of Chemical Examiner the sample parcels were delivered there by a Head Constable but the said Head Constable was not produced by the prosecution during the trial—Prosecution could not explain as to why the said Head Constable was not produced to confirm the safe transmission of the sample parcels to the office of Chemical Examiner so an adverse presumption under Article 129(g) of the Qanun-e-Shahadat, 1984 could be drawn against the Head Constable that he was not supporting the prosecution case—Non-production of the said Head Constable indicated that safe transmission had also not been established by the prosecution—Due to such defect on the part of the prosecution it could not be held with any degree of certainty that the prosecution had succeeded in establishing its case against the accused person beyond any reasonable doubt—Besides record indicated that four persons were sitting in the truck and out of them three succeeded in running away whereas the accused was the only one arrested—Record was silent as to who among those four was driving the vehicle—Appeal was allowed, and accused was acquitted of the charge by extending benefit of doubt to him.

2022  SCMR  2105   SUPREME-COURT

MIR WAIZ VS State

1. 9(c)—Possession of narcotics—Safe custody of the recovered substance and its safe transmission from the local police station to the office of the Chemical Examiner not established by the prosecution—Effect—In a case containing the said defect on the part of the prosecution, it could not be held with any degree of certainty that the prosecution had succeeded in establishing its case against the accused person beyond the shadow doubt.

2022  SCMR  2093   SUPREME-COURT

UMAR ZAMAN VS State

1. 9(c)—Possession of narcotics—Safe custody of the recovered substance and its safe transmission from the local police station to the office of the Chemical Examiner not established by the prosecution—Effect—In a case containing the said defect on the part of the prosecution, it could not be held with any degree of certainty that the prosecution had succeeded in establishing its case against the accused person beyond the shadow doubt.

2022  YLR  2413   QUETTA-HIGH-COURT-BALOCHISTAN

GHULAM QADIR VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, grant of—Failure to prepare parcel on the spot—Effect—Accused was alleged to have been found in possession of 1130 grams of charas—No parcel was prepared at the spot—First Information Report was also silent about the fact whether any sample was obtained from the allegedly recovered narcotics—Such omission on the part of complainant had created doubt about the prosecution story, benefit whereof was available to the accused even at bail stage—Accused had made out a case of further inquiry under S. 497(2), Cr.P.C.—Accused was admitted to post-arrest bail.

2022  YLR  2392   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD SADIQ VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51—Transportation of narcotics—Bail, refusal of—Huge quantity of narcotics—Scope—Accused along with another was apprehended while transporting 28 kg and 921 grams of Ice/Sheesha—No allegation of enmity or false implication was levelled against the police nor anything was available on the record—Recovery of the vehicle (from which the contraband was recovered) was not disputed nor any other person had come forward to claim its ownership—Huge quantity of narcotic substance was recovered and the offence was non-bailable, which not only fell within the prohibited clause of S. 497, Cr.P.C. but also attracted the bar contained in S.51 of the Control of Narcotic Substances Act, 1997—Bail could not be encouraged when the proceedings before the Trial Court were at final stage, as the same could prejudice the case of either party—Bail application was rejected, in circumstances.

2022  YLR  1222   QUETTA-HIGH-COURT-BALOCHISTAN

NAJEEBULLAH VS State

1. 9(c)— Control of Narcotic Substances (Government Analysts) Rules, 2001, R.6—Possession of narcotics—Appreciation of evidence—Delay of about three days in sending samples of recovered material to the Forensic Science Laboratory—Chain of safe custody—Prosecution case was that five kilograms hashish and a cash of Rs.535,000/- were recovered from the vehicle of the accused persons—Record showed that samples were sent to the office of the Chemical Examiner within seventy two hours of the recovery—Even otherwise, dispatching of sample beyond 72 hours was not a sine qua non—Mere delay in sending the sample to the laboratory was not at all fatal to the prosecution case because Rr. 4 & 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001,did not place any bar on the Investigating Officer to send the samples beyond 72 hours of seizure or recovery of the contraband—Said provisions in that respect were directory and not mandatory—Nothing was on record to establish that the sample parcel was ever tempered with rather the evidence led by the prosecution established that when the parcel was received by the said agency, remained intact—Circumstances established that the prosecution had proved its case against the accused—Appeal against conviction was dismissed accordingly.

2022  YLR  1222   QUETTA-HIGH-COURT-BALOCHISTAN

NAJEEBULLAH VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that five kilograms hashish and a cash of Rs.535,000/- were recovered from the vehicle of the accused persons—Record showed that the prosecution had failed to prove any link of the co-accused persons with that of the accused—No recovery, whatsoever, was affected from the co-accused persons and the contraband was recovered from the trunk (dikki) of the vehicle—Prosecution had failed to establish that the co-accused were in knowledge of the narcotic or that the same was exposed to them—Co-accused were passengers and having no link either with the accused or the vehicle which was used in the crime—If the contraband was lying open within the view of the co-accused persons or they knew the placement of the same in the secret cavities, then the situation would have been different—Prosecution had simply proved presence of the co-accused persons in the vehicle—Mere presence of the co-accused persons in the vehicle would not involve them in the case—Circumstances established that the prosecution had failed to prove its case against the co-accused persons—Appeal against conviction to the extent of co-accused was allowed, in circumstances.

2022  YLR  1222   QUETTA-HIGH-COURT-BALOCHISTAN

NAJEEBULLAH VS State

1. 9(c)—Possession of Narcotics—Appreciation of evidence—Prosecution case was that five kilograms hashish and a cash of Rs.535,000/- were recovered from the vehicle of the accused persons—Record showed that all the witnesses were consistent on all material aspects—No distinct discrepancy was noticed to spoil the credibility of the testimony of the witnesses—Said witnesses were subjected to cross-examination by the defence, but their testimony was not shattered—From the evidence, the mode and manner of arrest of accused leading to the recovery of narcotic had been proved—Prosecution evidence inspired confidence, while recovery of the narcotic from the vehicle which was driven by the accused was also proved by the prosecution—Accused was found responsible for transporting of huge quantity of the narcotic having a prior knowledge of the narcotic substance in his vehicle—In rebuttal to overwhelming prosecution evidence, the accused had failed to produce any tangible, trust-worthy and confidence inspiring evidence of the prosecution witnesses—Circumstances established that the prosecution had proved its case against the accused—Appeal against conviction was dismissed accordingly.

2022  YLR  1222   QUETTA-HIGH-COURT-BALOCHISTAN

NAJEEBULLAH VS State

1. 9— Possession of narcotics—Appreciation of evidence—Transporting of narcotic—Liability of driver—Scope—Person who is on driving seat of the vehicle shall be held responsible for transportation of narcotics.

2022  YLR  1222   QUETTA-HIGH-COURT-BALOCHISTAN

NAJEEBULLAH VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotics—Appreciation of evidence—Search and arrest, mode of —Search to be made in presence of witnesses—Non-association of private witnesses—Effect—Five kilograms hashish and a cash of Rs.535,000/- were recovered from the vehicle of the accused persons—Contention of the accused was that no private person was joined in recovery proceedings except Police Officials, which was a violation of S. 103, Cr.P.C.—Such contention of accused had no force as the application of S.103, Cr.P.C. had been excluded by S.25 of the Act—Reluctance of the general public to become a witness in such like cases was a judicially recognized fact and there was no option left but to consider the statement of official witness as no legal bar had been imposed in that regard—In the present case, no proof of enmity with the complainant and the prosecution witnesses had been brought on record, thus, in the absence thereof, the competence of prosecution witnesses being officials was rightly believed—Witnesses were not at all questioned about any previous ill-will or enmity with the accused whereby they could have been falsely nabbed and charged for the possession of five kilogram hashish—Circumstances established that the prosecution had proved its case against the accused—Appeal against conviction was dismissed accordingly.

2022  YLR  694   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD AMEEN VS State

23. 9(b)— Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Chemical analysis—Delay of four days in sending samples of contraband for analysis—Effect—Prosecution case was that 520 grams of baked charas was recovered from personal possession of the accused—Parcel was sent to the chemical examiner with delay of four days and it was kept at police station hence that the same was not in safe custody—Record showed that the alleged recovery was effected on 23.07.2020 and the parcel was received by the Forensic Science Laboratory on 27.07.2020—Although there was a minor delay in sending the parcel to the Chemical Examiner but the Rules in that respect were directory and not mandatory—Even otherwise there was nothing on record to establish that the said parcel was ever tampered with rather the evidence led by the prosecution established that the parcel received by the said analyst remained intact—Even otherwise, dispatching of sample beyond 72 hours was not a sine qua non—Mere delay in sending the sample to the laboratory was not at all fatal to the prosecution case because Rr. 4 & 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, did not place any bar on the Investigating Officer to send the samples beyond 72 hours of seizure or recovery of the contraband—Report of Forensic Science Laboratory further provided that after conducting a chemical test with complete protocol (description thereof were available in Forensic Science Laboratory Report), the same had been found charas—Circumstances established that the prosecution had successfully proved the guilt of the accused—Appeal against conviction was dismissed accordingly.

2022  YLR  694   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD AMEEN VS State

1. 9(b)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotics—Appreciation of evidence—Non-association of private witnesses at the time of arrest of accused and recovery of narcotics—Scope—Prosecution case was that 520 grams of baked charas was recovered from personal possession of the accused—No private person was joined in recovery proceedings except Police Officials—Application of S.103, Cr.P.C., had been excluded by S. 25 of the Act, 1997 in narcotic cases— Appeal against conviction was dismissed accordingly.

2022  YLR  694   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD AMEEN VS State

1. 9(b)—Possession of narcotics—Appreciation of evidence—Prosecution case was that 520 grams of baked charas was recovered from personal possession of the accused—Prosecution, in order to substantiate its case produced and examined four witnesses in all—Record transpired that all the said witnesses were consistent on all material aspects—No distinct discrepancy was noticed to spoil the credibility of their testimony—Said witnesses were subjected to cross-examination by the defence, but their testimony was not shattered—From the evidence, the mode and manner of arrest of accused leading to the recovery of narcotic had been proved—Prosecution evidence was unanimous with regard to the arrest of the accused, place of the occurrence, quantity of the recovered charas and to that extent, the evidence of the prosecution was also inspiring confidence—No proof of enmity with the complainant and the prosecution witnesses had been brought on record—Competence of prosecution witnesses being officials was rightly believed—Accused failed to produce any tangible material to rebut the trustworthy and confidence inspiring evidence of the prosecution witnesses—Circumstances established that the prosecution had successfully proved the guilt of the accused—Appeal against conviction was dismissed accordingly.

2022  PCrLJ  1018   QUETTA-HIGH-COURT-BALOCHISTAN

SAEED AHMED VS State

1. 9(c)—Transportation of narcotics—Appreciation of evidence—Scope—Accused was apprehended while transporting 8000 grams of charas—Prosecution witnesses were consistent on all material aspects—No distinct discrepancy was noticed to spoil the credibility of their testimony and they were subjected to cross-examination by the counsel of accused but their testimony was not shattered—Mode and manner of arrest of the accused leading to recovery of narcotics was proved—Recovered charas was sent to the Forensic Laboratory within 72 hours and no delay was caused, therefore, safe custody of the contraband was not doubtful—Forensic Laboratory after conducting a chemical test with complete protocol (description thereof was available in the report) had found the sample to be charas—Once prosecution had led ample evidence and discharged the initial onus of proof then it was the accused who had to dislodge the presumption of guilt against him—No possibility of false implication of the accused existed—Prosecution had successfully established the guilt of the accused and he was rightly convicted by the Trial Court—Appeal against conviction was dismissed, in circumstances.

2022  PCrLJ  1018   QUETTA-HIGH-COURT-BALOCHISTAN

SAEED AHMED VS State

1. 9—Transportation of narcotics—Scope—Held, person who is on the driving seat of the vehicle shall be held responsible for transportation of narcotics.

2022  PCrLJ  853   QUETTA-HIGH-COURT-BALOCHISTAN

AURANGZAIB VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)—Seizure of Narcotic—Appreciation of evidence—Chemical analysis—Delay in sending samples of contraband for analysis—Effect—Prosecution case was that sixty eight kilograms charas was recovered from the secret cavities of the vehicle driven by accused—Samples were sent to the Chemical Examiner with delay of six days and were kept at police station—Dispatching of sample beyond 72 hours was not a sine qua non—Mere delay in sending the sample to the laboratory was not at all fatal to the prosecution case because Rr. 4 & 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, did not place any bar on the Investigating Officer to send the samples beyond 72 hours of seizure or recovery of the contraband—Provisions in that respect were directory and not mandatory—Nothing was available on record to establish that the parcels were ever tampered with—Evidence led by the prosecution established that when the parcel was received by the said agency same was intact—Even otherwise on the day of recovery the Investigation Officer handed over the parcel of recovered narcotics to official witness/ASI, who after registering the same in Register No. 19 kept the same in Malkhana in safe custody and handed over the same to other official witness who deposited the same to Forensic Science Laboratory and obtained the report—Circumstances established that the prosecution had successfully proved the guilt of the accused—Appeal against conviction was dismissed accordingly.

2022  PCrLJ  853   QUETTA-HIGH-COURT-BALOCHISTAN

AURANGZAIB VS State

1. 9(c)—Possession of Narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that sixty eight kilograms of baked charas was recovered from the secret cavities of the vehicle driven by the accused, while co-accused was sitting in front seat of the said vehicle—Record showed that no recovery, whatsoever, had been affected from co-accused and the alleged contraband was recovered from the secret cavities of the vehicle—Prosecution had failed to establish that the co-accused was in the knowledge of the narcotic or that the same was exposed to him—Co-accused was a mere passenger and having no link either with the accused or the vehicle which was used in the crime—Prosecution had simply proved presence of the co-accused in the vehicle—Mere presence of co-accused in the vehicle would not involve him in the case—prosecution had failed to prove its case against the co-accused—Appeal against conviction to the extent of co-accused was allowed, in circumstances.

2022  PCrLJ  853   QUETTA-HIGH-COURT-BALOCHISTAN

AURANGZAIB VS State

1. 9(c)—Possession of Narcotics—Appreciation of evidence—Liability of driver of vehicle containing narcotic—Scope—Person who is on driving seat of the vehicle shall be held responsible for transportation of narcotics.

2022  PCrLJ  853   QUETTA-HIGH-COURT-BALOCHISTAN

AURANGZAIB VS State

1. 9(c)—Possession of Narcotics—Appreciation of evidence—Prosecution case was that sixty eight kilograms of baked charas was recovered from the secret cavities of the vehicle driven by the accused, while co-accused was sitting in front seat of the said vehicle—Prosecution had produced three witnesses to prove the charge against the accused—All the said witnesses were consistent on all material aspects—No distinct discrepancy was noticed to spoil the credibility of their testimony—Said witnesses were subjected to cross-examination by the defence, but their testimony was not shattered—Mode and manner of arrest of accused leading to the recovery of narcotic had been proved—Prosecution evidence was unanimous with regard to the arrest of the accused, place of occurrence, quality of the recovered charas and to that extent, the evidence of the prosecution was also inspired confidence—Recovery of narcotic had been effected from the vehicle which was driven by the accused, hence he had been found responsible for transporting huge quantity of narcotic having prior knowledge of the same in his vehicle—In the present case, no proof of enmity with the complainant and the prosecution witnesses had been brought on record, thus, in the absence thereof, the competence of prosecution witnesses being officials was rightly believed—Witnesses were not at all questioned about any previous ill-will or enmity with the accused whereby they could have been falsely nabbed and charged for the possession of sixty eight kilograms of charas—Accused had failed to produce any tangible material to rebut the trust worthy and confidence inspiring evidence of the prosecution witnesses—Circumstances established that the prosecution had successfully proved the guilt of the accused—Appeal against conviction was dismissed accordingly.

2022  PCrLJ  853   QUETTA-HIGH-COURT-BALOCHISTAN

AURANGZAIB VS State

Ss. 9 & 25—Criminal Procedure Code (V of 1898), S. 103—Mode of making searches and arrest—Search to be made in presence of witnesses—Scope—Defence objected that no private witness was joined in recovery proceedings except police officials, which is a violation of S.103, Cr.P.C.—Application of S. 103, Cr.P.C., had been excluded by S. 25 of the Act, 1997, in narcotic cases.

2022  MLD  1701   QUETTA-HIGH-COURT-BALOCHISTAN

HAMEEDULLAH VS State

S.9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)—Possession of narcotic—Appreciation of evidence—Benefit of doubt—Chemical analysis—Delay of ten days in sending samples of contraband for analysis—Effect—Prosecution case was that 300 kilograms of charas was recovered from the vehicle driven by accused—Prosecution’s case was that the samples were transmitted to the office of Forensic Science Laboratory but the safe custody and transmission could not be proved by the prosecution because according to Forensic Science Laboratory Report the samples of charas were received through Sub-Inspector with delay of ten days—Such delay had not been explained—Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, provided that said exercise was required to be completed within 72 hours of the recovery—No plausible explanation was brought on record by the prosecution as to why such inordinate delay was caused in the completion of said exercise by the Investigating Officer—Said fact was fatal to the prosecution case—Prosecution had also failed to examine the constable who had taken the sample to the Chemical Examiner, so that he could have been cross-examined on the point as to in whose custody the sealed parcel of the samples of charas were lying about ten days—Prosecution also did not produce the Head Mohrar of the police station about keeping the parcels in Malkhana—Investigating Officer also did not state anything as to when he handed over the parcels to the Head Mohrar, who allegedly kept the same in the Malkhana in safe custody for ten days—Said fact made the case doubtful and any doubt if arose in the links of the chain of prosecution story, the benefit of the same would go to the accused—Prosecution, in circumstances, could not prove prompt registration of the FIR and safe custody and transmission of the representative samples to Government Analyst, thus, the prosecution had failed to prove its case against the accused—Appeal against conviction was allowed, in circumstances.

2022  MLD  1701   QUETTA-HIGH-COURT-BALOCHISTAN

HAMEEDULLAH VS State

S.9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Delay of two hours in lodging the FIR—Effect—Prosecution case was that 300 kilograms of charas was recovered from the vehicle driven by the accused—Complainant lodged the report on the same day after an unexplained delay of two hours—Said delay raised eyebrows qua veracity of the case and signal towards consultation, concoction, inducement and procurement on the part of the prosecution.

2022  MLD  379   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD YOUNAS VS State

S.9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Contradictions in the statements of witnesses—Scope—Allegation against the accused was that three kilograms of charas was recovered from the possession of the accused—Record revealed that the FIR was registered on 24th July, 2020, wherein the recovery witness stated that the accused was searched on 27th July, 2020 and Fard-e-Biyan was prepared in the light of vehicle and torch—Police witness stated that the alleged contraband material was handed over to him on 27th July, 2020, whereas the complainant stated that the accused was arrested on 26th July, 2020 and documents were prepared in the light of bulb of hotel—Said contradictions in the statements of prosecution witnesses could not be lightly ignored—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was allowed, in circumstances.

2022  MLD  379   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD YOUNAS VS State

S.9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Safe custody and transmission of samples of the narcotic from the police to the chemical examiner was not established—Effect—Allegation against the accused was that three kilograms of charas was recovered from the possession of the accused—Forensic Science Laboratory Report depicted that samples of alleged contraband were received through a Constable—Prosecution was bound to establish safe custody of the recovered substance as to where the alleged material was kept and that samples, taken from the recovered substance were safely transmitted to the office of Chemical Examiner—Statement of constable who took the samples was not recorded by the prosecution—Circumstances suggested that the prosecution had failed to prove the chain—Appeal against conviction was allowed, in circumstances.

2022  YLRN  99   QUETTA-HIGH-COURT-BALOCHISTAN

AADIL VS State

Preamble & Ss. 7, 8 & 9—Object and purpose—Sentence, quantum of—Import or export of narcotic/drugs, trafficking or financing the trafficking of narcotics/drugs—Scope—Object and purpose as mentioned in the Preamble of Control of Narcotic Substances Act, 1997 was to consolidate and amend the laws relating to narcotic drugs and psychotropic substances—Object and purpose was also to regulate the treatment and rehabilitation of narcotic addicts and the matters connected and incidental therewith—Section 7 prohibited the import into, export from and transporting within Pakistan of any narcotic drug and psychotropic substance or controlled substance, save in accordance with the Rules made under S.7(2) of the Act—Trafficking or financing the trafficking of narcotic drugs was prohibited under S. 8—Section 9 described distinct punishments for contravention of the prohibition contained in Ss. 6, 7 & 8 of the Control of Narcotics Substances Act, 1997—Punishments were divided into three categories i.e. in cls. (a), (b) & (c) of S.9—Clause (a) of S.9 prescribed punishment of imprisonment which might extend to two years or with fine or with both if the quantity of narcotic drugs and psychotropic substances or controlled substance was one hundred grams or less—Clause (b) of S.9 was in respect of narcotic drugs and psychotropic substances or controlled substances which exceeded one hundred grams but did not exceed one kilogram and prescribed a punishment of imprisonment which might extend to 7 years besides imposition of fine—Likewise cl. (c) of S.9 was in respect of quantity which exceeded the limit specified in cl. (b) i.e. more than one kilogram and the punishment prescribed was death or imprisonment for life or imprisonment for a term which might extend to 14 years and the person would also be liable to fine upto rupees one million—Proviso to S. 9 provided that if the quantity exceeded 10 kilogram then the punishment would not be less than imprisonment for life.

2022  YLRN  99   QUETTA-HIGH-COURT-BALOCHISTAN

AADIL VS State

1. 9(c)—Possession of narcotics—Sentence— Scope— Accused was sentenced to imprisonment for 15 years for having been found in possession of 15 kilograms of charas—Law provided a sentence for the offence not less than imprisonment for life but the command of law escaped the notice of Trial Court—Impugned judgment was set aside and the case was remanded to the Trial Court for decision afresh.

2022  YLR  1655   PESHAWAR-HIGH-COURT

JAVED KHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, grant of—Delay in conclusion of trial—Scope—Accused sought bail on the ground of delay in conclusion of trial—Seven kilograms of charas was recovered from the accused, hence, his case came under Part (a) of the 3rd proviso of S. 497(1), Cr.P.C., as the mandatory punishment of death and imprisonment for life pertained to only those cases where the quantity recovered exceeded 10 kgs—For such reason, the accused could claim benefit to be released on statutory ground under S. 497(1)(a) of 3rd proviso that provided entitlement to be released on bail after continuous detention exceeding one year, if delay in conclusion of the trial could not be attributed to him or any person acting on his behalf—Order sheets of the Trial Court indicated that the delay in conclusion of trial was caused on the part of prosecution—Nothing was available on the record that accused was; (i) a convicted offender for an offence punishable with death or imprisonment for life; or (ii) a hardened, desperate or dangerous criminal, in the opinion of the Court; or (iii) an accused of an act of terrorism punishable with death or imprisonment for life—Petition for grant of bail was allowed, in circumstances.

2022  YLR  1655   PESHAWAR-HIGH-COURT

JAVED KHAN VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S.497—Possession of narcotics—Bail—Statutory ground of delay—Scope—Proviso to S. 9(c) of the Narcotic Substances Act, 1997, provides that if quantity of narcotics recovered exceeds 10 K.Gs. then the punishment shall not be less than imprisonment for life—By necessary application it will conversely suggest that if the quantity of recovered narcotic is less than 10 K.Gs., then the mandatory punishment of imprisonment for life so provided in the proviso would not be applicable.

2022  YLR  821   PESHAWAR-HIGH-COURT

USMAN SHAH VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Eight kilograms of charas was allegedly recovered from the motorcar driven by accused—Record showed that the seizing officer deposed that after recovery of contraband, he separated samples for Forensic Science Laboratory purpose and sealed in 8 parcels and remaining stuff in parcel No.9 with a monogram of “MK” which he categorically admitted that same was not pertained to his name and in fact the same stood for Sub-Inspector (S.I.), who was stated to be present with the complainant—Said recovery seemed to be doubtful, rather hinted at something having been planted by complainant, because said S.I. was never cited as a witness during the proceedings—Said witness, after few moments in his cross-examination, contradicted his own statement by deposing that SI was present in the police station at that very time—Monogram was lying with him in the official van—Seizing officer, pursuant to spy information, should have been required monogram with the letters “RK” in his possession to have strengthened and substantiated his version, but he disrupted the episode in a casual manner—Record transpired that he handed over the case property to the Moharrir, but said Moharrir was not produced before the court so as to support the version of the complainant and to depose about the safe custody of the case property—Prosecution even did not produce the Register No. 19 of the Police Station so as to prove that the case property was ever kept in Malkhana—Prosecution had wasted the best evidence available with it to establish the safe custody of recovered contraband—Vehicle, from which the alleged recovery was effected, was not produced before the court and was not exhibited during trial—Case property had not been produced by the police before the Trial Court without any justification, which showed that the police had malice against the accused regarding recovery of the contraband—Production of the case property before the court was the primary duty of the police in order to bring home the guilt of the accused—Non-production of the case property was fatal to the prosecution’s case and the same had destroyed the very foundation of the case, which created a dent in the prosecution case, causing serious doubt with regard to the occurrence—Appeal against conviction was allowed, in circumstances.

2022  YLR  821   PESHAWAR-HIGH-COURT

USMAN SHAH VS State

9. 9(c)—Possession of narcotics—Appreciation of evidence—Delay in sending the sample for analysis—Scope—Eight kilograms of charas was allegedly recovered from the motorcar driven by accused—Record revealed that the contraband was recovered on 09.05.2015 whereas the samples were received in Forensic Science Laboratory on 12.05.2015—Prosecution could not offer any plausible explanation for such delay—Prosecution had not only failed to establish the safe custody of the case property but also failed to prove the safe transmission of the samples to Forensic Science Laboratory—Where safe custody of the recovered substance or safe transmission of samples of the recovered substance was not proved by the prosecution through independent evidence, it could be concluded that the prosecution had not succeeded in establishing its case against the accused beyond reasonable doubt—Appeal against conviction was allowed, in circumstances.

2022  YLR  821   PESHAWAR-HIGH-COURT

USMAN SHAH VS State

1. 9(c)—Qanun-e-Shahadat (10 of 1984), Art. 129(g)—Possession of narcotics—Appreciation of evidence—Withholding best evidence—Scope—Eight kilograms of charas was allegedly recovered from the motorcar driven by accused—One of the marginal witnesses of the recovery memo was abandoned by the prosecution for reasons best known to them, not only adverse inference under Art. 129(g) of Qanun-e-Shahadat, 1984 could be drawn but the legal inference could also be drawn that if the said witness had entered into the witness box he would have not supported the prosecution case—Witness to the recovery memo had not stated anything about the samples and remaining contraband as to whether the complainant after seizure of the said contraband had handed over the same to someone else or otherwise—Forensic Science Laboratory Report disclosed that the samples were sent to Forensic Science Laboratory through Foot Constable, but no such official was produced before the Trial Court to ascertain that when and through whom he was handed over the said samples for taking the same to Forensic Science Laboratory—Prosecution had failed to prove its case beyond any reasonable doubt, in circumstances—Appeal against conviction was allowed, in circumstances.

2022  YLR  821   PESHAWAR-HIGH-COURT

USMAN SHAH VS State

Ss. 9(c) & 21— Possession of narcotics—Appreciation of evidence—Power of entry, search, seizure and arrest without warrant—Scope—Eight kilograms of charas was allegedly recovered from the motorcar driven by accused—Proceedings were conducted by Police Official/ASI in violation of the provision of S.21 of the Control of Narcotic Substances Act, 1997, despite the fact that two other police officials in the rank of SI were posted in Investigation Wing of said police station— Such conduct of the prosecution, while dealing with a heinous case, caused considerable loss to its case because neither any site plan nor any card of arrest was prepared—Investigating Officer of the case disclosed that whole of the proceedings were carried out inside the police station, which suggested that the witnesses produced by the prosecution were either not present on the spot or were not narrating the actual truth about the occurrence—Appeal against conviction was allowed, in circumstances.

2022  YLR  454   PESHAWAR-HIGH-COURT

Mst. ROBINA VS State

7. 9(c)— Recovery of narcotic substance—Appreciation of evidence—Un-explained delay in registration of F.I.R.—Proof of recovery—Principle—Charas weighing 7.2 Kilograms was alleged to have been recovered from accused on a Railway platform from her bag and vest worn by her—Trial Court convicted the accused and sentenced her to imprisonment for three years with fine—Validity—Occurrence took place at 1050 hours whereas Murasila (complaint) was received in police station at 1730 hours, after a considerable delay of about 7 hours, which went unexplained—All investigation was conducted before lodging of FIR—When officials who recovered contraband themselves stood witnesses then controversy remained unresolved as to who would substantiate their version regarding separate recoveries made by them from accused—Guilt of accused was not only required to be supported by testimony of complainant but also required to be substantiated by other unimpeachable, irresistible, circumstantial and independent evidence and the same was lacking—Recovery in the mode and manner as narrated by prosecution was doubtful and not appealable to general prudence, rather was concocted and fabricated—Statement of prosecution witness did not mention as to whom he handed over the case property and samples for keeping the same in safe custody—High Court extended benefit of doubt to accused and set aside conviction and sentence awarded to her by Trial Court and she was acquitted of the charge—Appeal against conviction was allowed in circumstances.

2022  PCrLJ  1610   PESHAWAR-HIGH-COURT

State VS GUL ZAMAN

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Possession of narcotics—Report or result of test or analysis—Appreciation of evidence—Safe custody—Non-production of sample-bearer—Scope—Accused was alleged to have been found in possession of 3045 grams of charas—Samples were received by the Forensic Laboratory after a delay of three days—Sample-bearer was not examined before the Trial Court despite the fact that his name was cited in the calendar of witnesses—Person who had actually delivered the samples to the Forensic Laboratory, as per record, was an important witness of the prosecution, but, unexpectedly, neither his name was mentioned in the list of witnesses nor he was produced before the Trial Court—Moharrir of the police station was not produced before the Court to substantiate safe custody of the contraband—Safe custody of the recovered substance or safe transmission of samples of the recovered substance was not established by the prosecution through any independent evidence—Report of Forensic Laboratory was not accompanied by the requisite protocol of the tests applied—Appeal against acquittal was dismissed.

2022  PCrLJ  1560   PESHAWAR-HIGH-COURT

STATE through Advocate-General, Khyber Pakhtunkhwa, Peshawar VS SAID BAHAR

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Transportation of narcotics—Report or result of test or analysis—Appreciation of evidence—Benefit of doubt—Contradictory statements—Safe custody—Scope—Accused was alleged to have been transporting 12000 grams charas and 4000 grams heroin—Trial Court acquitted the accused—Occurrence had not taken place in the mode and manner as structured by the prosecution—Moharrir stated that he had handed over samples to a constable for onward transmission to the Forensic Laboratory while the alleged sample-bearer stated that samples were not handed over to him—Even application for sending the samples to the Forensic Laboratory was not drafted—Apart from the safe custody and safe transmission of the samples, the report of Forensic Laboratory did not bear the test protocols that were applied to carry out the tests—Prosecution had not been able to prove its case against the accused beyond any shadow of doubt, thus, accused was rightly acquitted of the charge—Appeal was dismissed.

2022  PCrLJ  1560   PESHAWAR-HIGH-COURT

STATE through Advocate-General, Khyber Pakhtunkhwa, Peshawar VS SAID BAHAR

1. 9—Possession of narcotics—Safe custody—Scope—Where safe custody of the recovered substance or safe transmission of samples of the recovered substance is not established by the prosecution then it cannot be held that the prosecution had succeeded in establishing its case against the accused.

2022  PCrLJ  929   PESHAWAR-HIGH-COURT

MUHAMMAD KHURAM VS State

1. 9(c)—Transportation of narcotics—Appreciation of evidence—Benefit of doubt—Delayed FIR—Scope—Accused was convicted for having been apprehended while transporting 25 kilograms of charas and 3 kilograms of opium—Report regarding the occurrence was not recorded on the spot and the same was recorded on the next day reason for which was given that there was no proper arrangement for measurement of narcotics—Case property and accused were handed over to the security personnel present at the Customs Intelligence and Investigation office for the night—Strong possibility of placing the narcotics in the motorcar during the night existed, which aspect of the case had created serious doubt in the story of prosecution—Complainant had completed the entire proceedings in his office in presence of his subordinates, who were shown marginal witnesses to the recovery memo—Columns of number of FIR and time of report were left blank which columns were later on filled in with hand writing—Material contradictions were observed in the statements of prosecution witnesses—Prosecution had failed to bring home the charge against the accused beyond any shadow of doubt—Appeal against conviction was allowed, in circumstances.

2022  PCrLJ  929   PESHAWAR-HIGH-COURT

MUHAMMAD KHURAM VS State

1. 9— Possession of narcotics— Safe custody—Forensic Laboratory’s report—Scope—Prosecution, in order to place reliance on the Forensic Laboratory’s report, is required to establish continuous chain of custody of the sample and its safe transmission to the laboratory coupled with requisite protocol by the laboratory.

2022  PCrLJ  929   PESHAWAR-HIGH-COURT

MUHAMMAD KHURAM VS State

1. 9—Possession of narcotics—Safe custody—Scope—Where safe custody of the recovered substance or safe transmission of samples of recovered substance is not established by the prosecution, it cannot be held that the prosecution had succeeded in establishing its case against the accused.

2022  PCrLJ  872   PESHAWAR-HIGH-COURT

SHAHID NADEEM VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Contradictions in the statements of witnesses—Scope—Prosecution case was that 4915 grams opium and 9964 grams charas was recovered from the vehicle of accused—Record showed that the Investigating Officer of the case had stated in his cross-examination that the murasila was sent to the police station along with the accused and the case property while contradicting him, the complainant had stated in his cross-examination that only murasila was handed over to constable along with other documents for taking them to the police station while the case property, the vehicle and the accused were taken by him to the police station and same was statement of constable—Investigation Officer of the case had admitted in his cross examination that the site plan and statements under S. 161, Cr.P.C. of the witnesses were recorded on his dictation by an ASI who was present with him on the spot but his name, he didn’t remember whereas the complainant and marginal witness to the recovery memo had stated in their depositions before the court that the Investigating Officer through his own hand writing had prepared the site plan and recorded the statements of the witnesses on the spot—Said contradictions in the statements of the prosecution witnesses were neither minor in nature nor could be ignored and same suggested that the occurrence had not taken place in the mode and manner narrated in the FIR and deposed by the prosecution witnesses before the court—No doubt, huge quantity of contraband had been recovered in the case along with the vehicle but recovery of huge quantity of narcotics was not the only criteria to convict the accused charged with trafficking of the contraband unless the indictment was proved by the prosecution beyond reasonable doubt through confidence inspiring and worth reliable evidence which was not in the present case— Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt— Appeal against conviction was allowed, in circumstances.

2022  PCrLJ  10   PESHAWAR-HIGH-COURT

REHMAT GUL VS State

1. 9(c)—Possession of 18 kg of charas—Appreciation of evidence—Prosecution case was that 18 kilograms of charas was recovered from a vehicle driven by the accused—Record showed that the complainant/Seizing Officer and recovery witness had furnished straight forward and truthful account of the occurrence—Both the witnesses had been subjected to lengthy and taxing cross-examination but nothing favourable to defence could be brought from their months—Said witnesses remained stuck to their stance and corroborated each other on all material particulars of the occurrence such as the day, date, time and place of occurrence, the mode and manner of arrest of the accused and recovery of contraband charas from secret cavities of the vehicle, which was in the exclusive possession and control of the accused at the relevant time being driven by him—No doubt, the witnesses were Police Officials but nothing in black and white was available on file to show their ill will or enmity with the accused to falsely implicate him in case—Circumstances established that the prosecution had proved the guilt of the accused through cogent and confidence inspiring evidence—Appeal against conviction was dismissed accordingly.

2022  PCrLJ  10   PESHAWAR-HIGH-COURT

REHMAT GUL VS State

1. 9(c)—Possession of 18 kgs. of charas—Appreciation of evidence—Safe custody and transmission of samples of the narcotic from the police to the Chemical Examiner—Scope—Prosecution case was that 18 kilograms charas was recovered from a vehicle driven by the accused—Testimony of all the witnesses including the Seizing Officer and the Investigating Officer were consistent with each other on the fact that samples and contraband narcotic were brought by two Constables to Police Station from the spot and handed over to Moharrir of the Police Station—Daily diaries also substantiated the testimony of Seizing Officer, Investigating Officer and Moharrir of the Police Station— Murasila which was the first written document at the spot showed presence of said Constables with the Seizing Officer at the time of occurrence—Prosecution had proved the chain of circumstances under which the samples along with case property was shifted from the spot to the Police Station, produced before the Investigating Officer, then kept in safe custody and onward transmission to the Forensic Science Laboratory for chemical analysis—All the witnesses had been subjected to lengthy and taxing cross-examination by the defence but nothing beneficial to accused was extracted from them nor any doubt was created in prosecution’s case,regarding tampering with the samples or that the samples were not in safe custody—Positive Forensic Science Laboratory Report qua samples further strengthened the prosecution case—Circumstances established that the prosecution had proved the guilt of the accused through cogent and confidence inspiring evidence— Appeal against conviction was dismissed accordingly.

2022  MLD  1992   PESHAWAR-HIGH-COURT

MOMIN KHAN alias MOMINAY VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Possession of narcotics—Report of result of test or analysis—Appreciation of evidence—Benefit of doubt—Contradictory statements—Safe custody—Scope—Accused was alleged to have been found in possession of 4000 grams of charas—No malice or mala fide was apparent on the part of prosecution witnesses to falsely implicate the accused but the way they had contradicted each other was suggestive of the fact that either one or the other was not present on the spot at the relevant time and the occurrence had not taken place in the mode and manner as furnished by the prosecution—Report of Forensic Laboratory was in positive but the same was not reliable for the reason that neither the chain of sending the representative samples to Moharrir from the spot was established nor the report of Forensic Laboratory carried requisite protocols—Appeal was allowed, conviction and sentences recorded by the Trial Court were set aside.

2022  MLD  1992   PESHAWAR-HIGH-COURT

MOMIN KHAN alias MOMINAY VS State

S.9—Possession of narcotics—Safe custody—Any break in the chain of safe custody or lapse in the control of possession of the sample or lack of full protocols with respect to the tests applied for, render a positive report Forensic Laboratory unreliable.

2022  MLD  1529   PESHAWAR-HIGH-COURT

SHER AFZAL VS State

S.9(c)—Possession of narcotics—Safe custody—Non-production of Moharrir (record-keeper)—Non-production of sample-bearer—Contradictory statements—Scope—Accused was alleged to have been found in possession of 1068, 955 and 977 grams of charas—Case record showed that the very chain of events starting from the crime spot to police station regarding the dispatch and safe custody in the police malkhana of representative samples was not proved which deficiency had dented the prosecution case—Case murasila was handed over to a constable wherein there was no mention that the case property and the representative samples were delivered to him for their handing over to Moharrir of police station—Likewise, Moharrir of the police station was not produced as witness to depose that he had kept the representative samples in safe custody before they were dispatched to Forensic Laboratory—Official who had taken the samples to Forensic Laboratory for their chemical analysis had not appeared for the prosecution as its witness—Safe custody of the case property and the representative samples was not proved by the prosecution—Besides there were other contradictions in the statement of prosecution witnesses which were not taken into consideration by the Trial Court—Prosecution had not proved its case against the accused through any cogent and reliable evidence—Appeal was allowed, the conviction and sentence recorded by the Trial Court was set aside, in circumstances.

2022  MLD  1227   PESHAWAR-HIGH-COURT

RASHID ZAMAN VS AFZAL AWAN, SHO POLICE STATION TAKHT-E-NASRATI, DISTRICT KARAK

Ss.9(c) & 36—Recovery of narcotic substance—Appreciation of evidence—Benefit of doubt—Report of Government Analyst—Scope—Chain of custody of narcotic substance recovered—Charas Garda 14000 grams was allegedly recovered from accused who was convicted by Trial Court and sentenced to imprisonment for life—Validity—Chain of custody was pivotal as entire construction of Control of Narcotic Substances Act, 1997 and Control of Narcotic Substances (Government Analysts), Rules, 2001 rested on report of Government Analyst—Report in turn rested on process of sampling, and its safe and secure custody and transmission to laboratory—Prosecution was to establish that chain of custody was unbroken, unsuspicious, indubitable safe and secure—Any break in chain of custody or lapse in control of possession of sample, cast doubts on safe custody and safe transmission of sample(s) and had impaired and vitiated conclusiveness and reliability of report of Government Analyst—Prosecution failed to prove its case against accused persons beyond reasonable doubt—High Court set aside conviction and sentenced awarded to accused persons by giving them benefit of doubt and acquitted them of the charge—Appeal was allowed, in circumstances.

2022  MLD  937   PESHAWAR-HIGH-COURT

SULEMAN KHAN VS State

-S.9(c)—Transportation of narcotics—Appreciation of evidence—Delay in sending samples to Forensic Laboratory—Non-production of eye-witness—Effect—Scope—Accused was alleged to have been apprehended while transporting eighty four kilograms of

2022  YLRN  148   PESHAWAR-HIGH-COURT

WALI REHMAN VS State

Ss. 9(c) & 36— Possession of narcotics— Report of Government Analyst— Appreciation of evidence—Percentage of narcotics (chemical), non-mentioning of—Effect—Accused was alleged to have been apprehended while driving away 16 kg Acetic Anhydride—Seizing officer had separated samples of Acetic Anhydride through recovery memo.—Representative samples were subject to chemical and instrumental analysis wherein Acetic Anhydride was detected—Report of Chemical Examiner was inconclusive because no known percentage of Acetic Anhydride was given therein—Prosecution case was totally silent in that respect and when a known quantity of some forbidden and illegal item, chemical or contraband was not known then on no count, the culprit charged for its trafficking could be convicted—Appeal was allowed and the impugned judgment was set aside, in circumstances.

2022  YLRN  88   PESHAWAR-HIGH-COURT

IRFAN ALI VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, refusal of—Scope—Accused was alleged to have been found in possession of two packets of heroin one weighing 987 grams and the other weighing 889 grams—Recovery was effected from two different trolley bags in personal possession of the accused, whereas during investigation he was found to be a member of National Drug Trafficking Organization, working for drug carrier at national level—Accused was apprehended at the airport at an international departure section where he was about to fly abroad—Act of accused was not only against the society but was also earning a bad name for the country at international level—Challan in the case was complete and trial was to commence shortly—Accused did not deserve concession of bail—Prima facie, reasonable grounds existed to show the involvement of accused in the commission of offence —Bail application was dismissed, in circumstances.

2022  PCrLJN  85   PESHAWAR-HIGH-COURT

HAMID ULLAH VS State

Ss. 9 & 36—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Possession of narcotics—Reports of Government Analysts—Report or result of test or analysis—Re-examination of contraband, legality of—Scope—Accused was aggrieved of an order passed by Trial Court whereby it had ordered re-sampling of the contraband because the report of Forensic Laboratory already received exhibited sans the requisite protocols—Report of Government Analyst prepared in consequence of R. 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, must provide for (i) tests and analysis of the alleged drug; (ii) the results of test(s) carried out and (iii) the test protocols applied to carry out these tests and non-compliance of R. 6 and absence of any of these mandatory elements frustrate the purpose and object of the Act thereby diminishing the reliability and evidentiary value of the report but it does not mean that during trial, if any flaw arises in the prosecution case, which gives benefit to the accused in shape of deficient report, as in the present case, the prosecution should be given a chance to rectify the same—Trial Court while examining report of Chemical Examiner has the power to summon the Government Analyst in case there is any ambiguity in the report and seek clarification thereon—Such clarification can only be based on the existing record of the Government Analyst and it is not meant to allow the Government Analyst to conduct a fresh test or prepare another report, for that would amount to giving the prosecution a chance of filling the gaps and lacunas in the report—Order of the Trial Court was set aside and the appeal was allowed, in circumstances.

2022  PLD  700   LAHORE-HIGH-COURT-LAHORE

ANF VS MUHAMMAD FAIZAN

Ss. 302, 324, 353 & 186—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, possession of narcotic substance—Prosecution case was that accused was apprehended from the house by the officials of ANF and one of the accused was given a chase by the personnel of ANF but he responded with a straight fire hitting one of the officials; accused made a successful escape and from the blue sack thrown by him 15-packets of charas, weighing 16.875 kilograms were recovered—Case was thoroughly investigated by ANF and on the conclusion of the investigation, report under S.173, Cr.P.C. only to the extent of Ss.9(c), 15 & 17 of Control of Narcotic Substances Act, 1997 was submitted in the court of CNS—To the extent of offences under P.P.C. and Anti-Terrorism Act, 1997 a separate report under S.173, Cr.P.C. was proposed to be submitted in the Anti-Terrorism Court—Special Judge (CNS) Court, held that he lacked jurisdiction and both the reports under S.173, Cr.P.C., were to be submitted before the Court constituted under ATA, 1997—Validity—Record showed that the raid though led to the recovery of a consignment comprising upon 16.875 Kilograms of charas but also culminated into the death of one ANF personnel, who statedly was gunned down by one of the accused while decamping from the spot so as to avoid his arrest—Language of S.235, Cr.P.C. is explicit in sense and enables a Court to charge an accused in one trial for multiple offences comprising upon different acts but committed during same transaction—Term “same transaction” used in S.235, Cr.P.C., was of dominant importance and called for indulgence—Offences, though, committed not at same place and time but if were stemming from common motivation, intent, design or in continuity with each other, still could be described as forming same transaction—For the determination of question about the offences having been committed during same transaction, the root cause of the crime or the motive was to be considered along with proximity of time and distance between the different events—If the different events forming basis of a crime could not be bisected in reference to the motive, design, concert and reasons rather were strongly interwoven with each other by common thread of background, it could inexorably be held that offences were committed during same transaction within the meaning of S. 235, Cr.P.C.—In the present case, all the accused named in the crime report prima facie, were found concerned in drugs trafficking and one out of them committed the murder of a person hailing from raiding party to make an escape and to avoid arrest—All the offences were committed in one transaction, thus were to be tried through a common charge under S. 239(d), Cr.P.C. by the same Court in a single trial—According to the Preamble, CNS Act, 1997, was enacted to consolidate and amend the laws relating to narcotic drugs, psychotropic substances and to control the production, processing and trafficking of drugs and substances—Chapter II deals with certain prohibitions and provide punishments for their violations—Inexorably, all the penal provisions contained in Chapter II of CNS Act, 1997, deal with offences relating to narcotic drugs, psychotropic and controlled substances—For trial of cases arising out of CNS Act, 1997, Special Courts were notified and established under S.45, which also specified the sphere of their jurisdiction—Section 45 of CNS Act, 1997, signified that the jurisdiction of Special Court was restricted only to the extent of offences mentioned in CNS Act, 1997, and did not go beyond—Tenor of S. 45 CNS Act, 1997, made it unambiguously clear that jurisdiction of Court established under CNS Act, 1997 though was exclusive but limited in nature—Alluded from the Preamble that ATA, 1997, was enacted to cater the need of countering the menace of terrorism, sectarian violence and heinous offences—Preamble extended the scope of ATA, 1997 even to the offences which were connected with terrorism etc. or were incidental thereto—Word “incidental” used in the Preamble of ATA, 1997, is of higher import and stand for acts and results attached with the main transaction—Use of word “incidental” that matters ancillary or connected with the principal misdeed of terrorism and heinous offences come within the scope of ATA, 1997—Anti-Terrorism Court besides taking cognizance of terrorism, sectarianism and heinous offences could also extend jurisdiction to offences which were their fall out or by-products—Under S. 12(1) of Anti-Terrorism Act, 1997, Special Court were constituted with exclusive domain to take cognizance of scheduled offences as was evident from its S.12(1) Anti-Terrorism Act, 1997—After dilating in-depth upon the Preamble, Ss.12(1), 17 & 21-M of ATA, 1997, it was concluded that all those provisions were required to be read in conjunction with each other for determining the jurisdiction of Special Court constituted under ATA, 1997—Non-obstante clause of S. 12(1) when read continently with other provisions of ATA, 1997, it becomes abundantly clear that the jurisdiction of Special Court is extended to other offences as well if committed along with scheduled offences during same transaction as continuity of actions—Canvassed allegations give rise to different offences committed by same set of accused and in the manner that they could not be bisected—Similarly, the same set of persons were proposed to stand as witnesses along with common documents like FIR, inspection notes, recovery memos etc. to prove the charge of possession of narcotics and committing the murder of deceased—If the allegations were placed before two different courts through separate 173, Cr.P.C reports, there would be a possibility of conflicting decisions and above all it would put in peril both the sides for undergoing the ordeal of separate trials regarding the same transaction—Appeal was dismissed accordingly.

2022  PLD  694   LAHORE-HIGH-COURT-LAHORE

QASIM ALI VS State

1. 9(b)—Probation of Offenders Ordinance (XLV of 1960), S. 8—Criminal Procedure Code (V of 1898), S.412—Possession of narcotics—Appreciation of evidence—No appeal in certain cases when accused pleaded guilty—Scope—Accused was booked in the case on recovery of 680 grams of charas from his possession—Record showed that no such perversity in the findings of conviction/sentence recorded by the Trial Court was found which could warrant interference therein, as the recovery of contraband was established, the chain of safe custody remained intact and the Forensic Science Agency Report was also supporting the prosecution case—Conviction/sentence had been passed on the basis of confession voluntarily made by the accused, therefore, on merits no weakness in the prosecution case was found to justify interference—Even otherwise, under S.412, Cr.P.C. after confession, a sentence could only be challenged “to the extent or legality”—Period of imprisonment for one year and nine months in case under S.9(b), Control of Narcotic Substances Act, 1997, was justified and no illegality was found in the impugned judgment as such—Yet right of appeal granted under S.8 of Probation of Offenders Ordinance, 1960, was obviously to assail any terms of probation that affects the right of accused—Said section dealt with conviction one passed on merits and not on the basis of confession; therefore, legal position would stand as incorporated under S. 412 of Cr.P.C.—When appeal was barred, remedy of revision was available to the affected person—In the present case right to file revision against the conviction passed on the basis of confession would remain available; therefore, appellant can file a revision petition instead of appeal—Court was not precluded to exercise revisional jurisdiction when sitting as a court of appeal and could pass any incidental order except to enhance the sentence—Same was the legal position as set out in S. 8 of the Probation of Offenders Ordinance, 1960—Conviction/sentence of the accused as imposed by the Trial Court was upheld—Appeal was dismissed, in circumstances.

2022  YLR  1238   LAHORE-HIGH-COURT-LAHORE

NADEEM AKHTAR VS State

1. 9(c)— Recovery of narcotic substance—Appreciation of evidence—Benefit of doubt—Safe custody and transmission of samples of the narcotic from the police to the Chemical Examiner was not established—Effect—Allegation against the accused was that three kilos and 981 grams of heroin was recovered from his possession—According to prosecution version, the complainant handed over the case property to a constable, who was not produced as a witness during the course of trial—Said constable was neither cited as a witness in the calendar of witnesses nor his statement was recorded during the course of trial—Safe custody of the case property in that case had been compromised—Prosecution was under bounden duty to establish every limb of safe custody of the recovered contraband—In case it was not established beyond doubt, the same could not be used against the accused—Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt—Appeal against conviction was allowed, in circumstances.

2022  YLR  632   LAHORE-HIGH-COURT-LAHORE

IJAZ ALI VS State

100. 9(c)—Possession of narcotics—Appreciation of evidence— Non-production of material witness—Non-production of Register No. XIX—Effect—Accused was allegedly found in possession of 2150 grams of heroin—Muharrir stated that he had received sample and case property from Investigating Officer and that he had deposited it in Malkhana, but the official who had produced it from the Malkhana was not produced by the prosecution—Register No. XIX maintaining the relevant entry was also not produced in evidence—Complainant had admitted in his cross-examination that his caste was Kalyar; that Loona were their political rivals and that the accused was a Loona by caste—Both accused and complainant belonged to the same area—Report of Forensic Laboratory revealed that net weight of the sample was 100.85 grams whereas 108 grams was separated— High Court by placing reliance on “Ikramullah and others v. The State [2015 SCMR 1002]” convicted the accused to what he had already undergone as he had spent more than one year behind the bars.

2022  PLD  512   LAHORE-HIGH-COURT-LAHORE

QUDRAT ULLAH VS State

1. 466—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Release of lunatic, pending trial—Scope—Application filed by the petitioner under S. 466(1), Cr.P.C. for his release till he recovered from his unsoundness of mind, was dismissed—Scope—In Section 466, Cr.P.C., the words”whenever an accused was found to be unsound mind and incapable of making his defence” were of worth value because an accused could be found as such only if the Court had tried the fact of his unsoundness and incapacity during the trial as mentioned in S.465, Cr.P.C.—Thus, Court of Session or the High Court shall only be authorized to release the accused on bail under S. 466, Cr.P.C. if they were the Trial Courts and in no other case High Court could exercise powers under said section—In the present case, such was not the situation though the petitioner had approached the Trial Court but not on the ground of his unsoundness or incapacity to stand trial due to disease of Schizophrenia which recourse was still open for the petitioner—In such circumstances, bail of the petitioner could not be entertained or on the ground of medical evidence when a special procedure had been prescribed in the Cr.P.C. for such like cases and even provision of bail was also available in said chapter—Petition was dismissed, in circumstances.

2022  PCrLJ  1846   LAHORE-HIGH-COURT-LAHORE

TEREZE HLUSKOVA VS State

1. 9(c)—Possession of narcotics—Withholding best evidence—Non-production of CCTV footage—Non-production of sample-bearer—Safe custody—Scope—Prosecution case was that the accused was apprehend at the airport while attempting to smuggle narcotics—Complainant had failed to show any official document on the basis of which he was permitted to perform his duties at the airport—Distance between Customs House and airport was 15 kilometers but he took almost 12 hours to reach there—Lady Constable who had searched the accused was not produced as a witness, as such, best evidence was withheld—Investigating Officer had not investigated as to how and when the luggage and narcotics were shifted from airport to Customs House—Investigating Officer had not taken CCTV footages at the airport during investigation though admitted that cameras were installed outside and inside of the airport—CCTV footage in such like incident was mandatory, which ruled out the possibility of false implication to a good extent—Investigating Officer had not stated that he had delivered the samples in the office of Chemical Examiner—Prosecution had failed to bring home the guilt against the accused—Appeal was allowed, conviction was set aside and the appeal filed by the prosecution against acquittal of co-accused was dismissed, in circumstances.

2022  PCrLJ  1492   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SHAHID VS State

1. 9(c)—Possession of narcotics—Proof of exclusive and absolute possession of place of recovery, requirement of—Scope—Sulfuric acid was secured on the indication of accused from a shop—For providing credibility to the recovery it was obligatory for prosecution to prove that the accused was in exclusive and absolute possession of the shop and success in that respect would have established a strong connection between the accused and recovered substance—No documentary evidence was secured by the investigating agency to prove the ownership of accused regarding the shop or his actual/physical possession—No endeavour, even frail in nature, was made to prove that accused was tenant in the premises or was having control of the shop in some other capacity—Doubt had emerged about the actual owner of the recovered substance—Accused was acquitted of the charge, in circumstances.

2022  PCrLJ  1492   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SHAHID VS State

1. 9(c)—Transportation of narcotics—Nexus of accused with vehicle, proof of—Scope—Where accused was apprehended while sitting in a vehicle from which 10 cans of sulfuric acid were recovered, nexus between the accused and the vehicle was incumbently required to be proved in such cases—Vehicle was registered in the name of another person, who was not associated in the investigation on the pretext that his address was incomplete—Prosecution witnesses had omitted to mention that the accused was seated in the cabin of the vehicle or at its rear portion—Such shortcoming had gained importance when seen in the context that the vehicle was parked on the road side—Failure of prosecution in establishing nexus was sufficient ground for acquittal—Accused was acquitted of the charge, in circumstances.

2022  PCrLJ  1492   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SHAHID VS State

8. 9—Possession of narcotics—Scope—In order to make an accused liable under S. 9, it is incumbent that the substance recovered from him must be proved to be in contravention of Ss.6,7 & 8.

2022  PCrLJ  1492   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SHAHID VS State

Ss. 9, 21, 51 & 29—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotics—Power of entry, search, seizure and arrest without warrant—No bail to be granted in respect of certain offences—Presumption from possession of illicit articles—Search to be made in presence of witnesses—Scope—Element of stringency spells out from Control of Narcotic Substances Act, 1997, as is evident from prohibition of bail under S. 51, power of police to enter and search premises without warrant under S. 21, exclusion of S. 103, Cr.P.C., in recovery proceedings, competency of official witnesses in search/seizure and from the presumption to be drawn under S. 29—Legislative strictness leaves little room for the defence to dislodge the case of prosecution in Control of Narcotic Substances Act, 1997—High Court observed that if menace of drugs is not catered, it is destined to destroy our coming generations as well as the social fabric—At the same time, society is not oblivious of the fact that often an innocent person is grilled in a narcotic case either by mistake or with some sinister design—To achieve the ultimate goal of safe administration of justice, the statutory stringency of Control of Narcotic Substances Act, 1997 is to be reciprocated through circumspective appraisal of prosecution evidence—Emergence of reasonable doubt from the review of prosecution case must entail consequences of an acquittal.

2022  PCrLJ  1466   LAHORE-HIGH-COURT-LAHORE

ALI RAZA VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Qanun-e-Shahadat (10 of 1984), Art. 38—Possession of narcotics—Statement to police officer not to be proved—Bail, grant of—Accused not in active possession—Scope—Accused was apprehended while accompanying co-accused who was carrying charas weighing 1520 grams—Narration of the FIR disclosed that recovery of the narcotic was affected from co-accused and the accused was only accompanying him—Mere fact that the accused was accompanying the principal accused did not establish that the contraband was in his active possession or even he had any knowledge about it—Accused was found connected in the case only on the statement of co-accused that charas was being supplied to him by petitioner, which was inadmissible in evidence and could not be relied upon—Admission of an accused before police could not be used against him under Art. 38 of the Qanun-e-Shahadat, 1984—Accused was awaiting his trial, the conclusion of which was not in sight in near future, as such, his further detention in jail would serve no useful purpose for the prosecution—Petition for grant of bail was allowed, in circumstances.

2022  PCrLJ  1233   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AKHTAR VS State

1. 9(c)— Possession of narcotics— Appreciation of evidence—Benefit of doubt—Safe custody and transmission of samples of the narcotic from the police to the Chemical Examiner was not established—Effect—Prosecution case was that twenty five bags of bhang weighing one maund each was recovered from the possession of the accused persons—Statement of Moharir clearly revealed that he only received twenty five sealed parcels of samples which he statedly transmitted to the office of Forensic Science Agency and never received remaining case property—Case property was neither received by Moharir nor kept by him in safe custody—Report of Forensic Science Agency itself got exhibited by the prosecution, did not reflect that said parcels of samples were sent back from the Forensic Science Agency, yet same had been produced in the court—Said parcels of samples were never deposited in the office of Forensic Science Agency—Safe custody of parcels of samples from point/date of recovery to its receipt in Forensic Science Agency had not been proved, in circumstances—Safe custody of case property from recovery to its production in the court had not been proved—Proving unbroken chain of safe custody of case property and parcel of sample was necessary for conviction in narcotics case, because recovery in such cases was not mere corroboratory piece of evidence rather it constituted the charge and entailed punishment—If said unbroken chain of safe custody had not been proved, then it was fatal for the case of prosecution—Circumstances established that the prosecution had been failed to prove its case against the accused—Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

2022  PCrLJ  1233   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AKHTAR VS State

1. 9(c)— Possession of narcotics— Appreciation of evidence—Maxim: falsus in uno falsus in omnibus—Applicability—Co-accused persons of the present accused were allegedly present with the accused as their companions at the place of occurrence but they had been acquitted by the Trial Court vide impugned judgment—Same case of prosecution and same set of witnesses had not been believed against them—Falsus in uno falsus in omnibus would be applicable in deciding criminal cases—Co-accused persons when acquitted then, same set of witnesses could not be relied upon against present accused persons—Circumstances established that the prosecution failed to prove its case against the accused—Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

2022  PCrLJ  1233   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AKHTAR VS State

1. 9(c)— Recovery of narcotic substance— Appreciation of evidence—Benefit of doubt—Prosecution case was that twenty five bags of bhang weighing one maund each was recovered from the possession of the accused persons—As per fard biyan/complaint that allegedly 25-bags of bhang were recovered from the possession of the accused persons and the same were taken into possession by complainant in presence of two recovery witnesses vide recovery memo—Recovery witness during cross-examination stated that the alleged bhang was not recovered from the exclusive possession of any of the accused—Similarly, other recovery witness stated that as the accused present in the court were present besides the Boras therefore, he presumed that they were the owners of those Boras—Informer did not point out the place of occurrence—From the perusal of the said portions of statements of recovery witnesses, it had been crystal clear that the alleged 25-bags of bhang were not recovered from the sole possession of the accused persons rather the same were lying on the bank of the road and recovered from there, which was an open place and accessible to everyone—Complainant deposed before the court that bhang was not recovered from exclusive possession of accused but was recovered from all the persons present in the court—Prosecution could not produce any witness to prove that said bhang was brought by present accused at alleged place of recovery, when brought and from whom brought—Circumstances established that the prosecution failed to prove its case against the accused—Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

2022  PCrLJ  1233   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AKHTAR VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)—Recovery of narcotic substance—Appreciation of evidence—Benefit of doubt—-Chemical analysis—Delay of about seven months in sending the samples for chemical analysis—Effect—Prosecution case was that twenty five bags of bhang weighing one maund each was recovered from the possession of the accused persons—Record showed that the bhang was sent to the Forensic Science Agency with the delay of about seven months—No explanation whatsoever had been given by the prosecution—Although rule in that regard was directory yet in peculiar facts and circumstances of the case, said delay raised eyebrows—Circumstances established that the prosecution failed to prove its case against the accused—Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

2022  PCrLJ  1088   LAHORE-HIGH-COURT-LAHORE

ABID ALI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Safe custody—Scope—Accused was alleged to have been found in possession of 1250 grams of charas—Complainant had deposited the samples in the Forensic Laboratory and after sampling for analysis, the remaining portion of case property from the applicable items was sealed and handed over by Forensic Laboratory to the evidence submitting person but the prosecution did not produce any witness to prove that the case property was delivered back to Moharir or anybody else—Safe custody of the case property/sample, after sampling by the Forensic Laboratory till production in the Court, could not be proved—Since prosecution had failed to prove its case against the accused beyond shadow of doubt, therefore, there was no need to discuss the defence version— Appeal against conviction was allowed, in circumstances.

2022  PCrLJ  1088   LAHORE-HIGH-COURT-LAHORE

ABID ALI VS State

1. 9—Possession of narcotics—Safe custody—Scope—If safe custody of allegedly recovered substance/case property has not been proved in narcotics cases, then, there is no need to discuss other merits of the case and it straightaway leads to the acquittal of the accused.

2022  PCrLJ  949   LAHORE-HIGH-COURT-LAHORE

Mst. SANGEETA VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, grant of—Pregnant woman—Detention of minor along with mother—Scope—Accused was alleged to have been found in possession of 1550 grams of charas—Report of Woman Medical Officer revealed that the accused person’s minor baby boy aged about 1 year was detained along with her in the jail—Accused was in fragile condition and was also in advanced stage of pregnancy who required proper medical care and caution, therefore, she was entitled to claim that the child to whom she would give birth should be born in free atmosphere and not in prison, thus the accused was also entitled to be admitted to bail on that sole ground—Accused had no antecedents and credentials of criminal activity and was no more required by the police, hence, incarceration of the accused would not serve any useful purpose to the prosecution—Petition for grant of bail was accepted, in circumstances.

2022  PCrLJ  833   LAHORE-HIGH-COURT-LAHORE

PACHA KHAN VS State

Ss. 9(c) & 36—Transportation of narcotics—Reports of Government Analysts—Appreciation of evidence—Benefit of doubt—Contradictory statements—Non-production of original report—Scope—Accused was alleged to have been apprehended while transporting 15 kilograms of heroin—Constable stated that he was given samples for onward submission to Forensic Laboratory by the Moharrir whereas Moharrir stated that he had given samples to another constable for onward submission to Forensic Laboratory—Investigating Officer admitted that he had not recorded the statement of Assistant Director ANF who had supervised the raid nor had he cited him as a witness—Investigating Officer had also admitted that accused had no previous record of any involvement in the criminal case, therefore, the prosecution case regarding his previous conduct as known inter-provincial drug-dealer was not supported—Chemical Examiner had admitted in cross-examination that possibility of causing intoxication in the substance was not mentioned and that if 1 gram heroin was mixed in 100 grams of other white colour powder even then the result of the laboratory would have been the same as in the instant report—Report of Chemical Examiner was not the original report which could not have even been tendered in evidence—Appeal against conviction was allowed, in circumstances.

2022  PCrLJ  59   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ASIF ALI USAMA VS State

1. 94—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Recovery of narcotic substance—Document, summoning of—Accused during cross examination sought summoning of Call Data Record of cellular phones of prosecution witnesses—Trial Court declined to summon the record—Validity—Accused was facing charge entailing capital sentence, it was essential that he could get every chance to defend him—While passing order in question, Trial Court failed to take notice of such considerations and fell in error, while dismissing application filed by accused—Prosecution witnesses were members of raiding party who admitted that telephone numbers were in their personal use—Production of Call Data Record of mobile numbers would help the Court to arrive at just decision—High Court directed Trial Court to summon Call Data Record as desired by accused—Appeal was allowed in circumstances.

2022  MLD  1805   LAHORE-HIGH-COURT-LAHORE

GHULAM SHABBIR alias SHABOO VS State

S.9(c)—Criminal Procedure Code (V of 1898), S.342—Possession of Narcotics—Appreciation of evidence—Benefit of doubt—Incriminating material was not put to the accused during his examination—Effect—Prosecution case was that 1500 grams of charas was recovered from the Gathri of the accused—Perusal of statement of accused under S.342, Cr.P.C. clearly demonstrated that certain material questions/incriminating evidence was not put to the accused while examining him under the said section—First and foremost question as to whether the prosecution evidence was recorded in the presence of the accused and he understood the same was not even put to him—Non-formulating of such a vital question and non-affording the accused an opportunity to respond the same, meant that the entire prosecution evidence being used against him was not recorded in his presence—Said fact alone was sufficient to believe that the Trial Court did not go through the prosecution evidence while recording statement of the accused under S.342, Cr.P.C, and felt it satisfied to put forth the facts of crime report to the accused, which in no manner could take place of prosecution evidence—Recovered charas was never confronted to the accused while examining him under S.342, Cr.P.C. and as such, the same could not be used against him in any eventuality for maintaining his conviction and sentence—Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

2022  MLD  1310   LAHORE-HIGH-COURT-LAHORE

ABID alias Chirri VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Possession of narcotics—Bail, grant of—Accused was a previous convict—Scope—Accused was alleged to have been found in possession of 510 grams of charas—Record showed that the accused-petitioner was convicted and was placed on probation for one year in terms of S.5 of the Probation of Offenders Ordinance, 1960—Another FIR was registered against him after the completion of the probation period—No allegation was levelled against accused-petitioner that he violated the terms of his bond while it was in force—No proceedings under S.7 of the Ordinance, 1960, were initiated against the accused-petitioner and he was never sentenced for the original offence—In such circumstances, accused-petitioner was entitled to the benefit of S.11(2) of the Ordinance, 1960, and the said conviction could not be pressed as a ground to refuse him bail in the present case—Application for pose-arrest bail was allowed, in circumstance.

2022  MLD  584   LAHORE-HIGH-COURT-LAHORE

ABDULLAH KHAN VS State

S.9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.6—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Scope—Allegation against accused was that he was apprehended from the street near Dera, who led the police party to his Dera wherefrom he got recovered charas weighing 08 kilograms—Patwari had admitted that the Dera was without boundary wall—Patwari had not recorded statement of respectables of the locality nor had he collected any document in the form of girdawari showing his control and supervision of the accused over the Dera—Complainant had admitted that he had arrested the accused from the street and then after his arrest accused had led to the recovery from the Dera—Dera, in the rural background, was a private place of common use by all the owners for agricultural affairs—Any co-owner can access the Dera, though some frequently visit there while others may not—Mere presence of accused on the place was not sufficient to hold him responsible for conscious possession—Samples were separately analyzed but the kind/type of protocols applied for the chromatography tests were not mentioned—Prosecution could not prove its case beyond any reasonable doubt—Appeal against conviction was allowed, in circumstances.

2022  PLD  235   LAHORE-HIGH-COURT-LAHORE

ABDUL REHMAN VS State

Ss. 9(c), 58, 59 & 60—Recovery of narcotic substances—Appreciation of evidence—Foreign assistance—Aut dedre, aut judicare, principle of—Applicability—Narcotics in heavy quantity was recovered in a foreign state alleged to have been shipped from Pakistan—Accused persons were employees of cargo services who were convicted by Trial Court and sentenced to imprisonment for fifteen years—Validity—Prosecution failed to prove that narcotics was impounded in container within the territory of Pakistan—Official who initiated inquiry and submitted investigation report did not appear in court as prosecution witness—None of the documents were signed or provided by accused persons—Such was a case of circumstantial evidence and no direct evidence was available—Role of accused persons discovered during inquiry was of a lethargic attitude whether intentionally or un-intentionally on the part of accused—Prosecution did not take central authority into picture to legalize initiation of inquiry, nor correspondence was made with respect to permission for aut dedre, aut judicare—Permission of High Court under S.59 of Control of Narcotic Substances Act, 1997, was not obtained for evidence gathering process and affidavit of foreign official was inadmissible in evidence—No commission was issued for recording of evidence of foreign police officials, nor any effort was made to record their statements through live link or Skype—Documents brought on record were not certified as per law—High Court set aside conviction and sentence awarded to accused persons as no case was made out by prosecution—Appeal was allowed, in circumstances.

2022  YLRN  187   LAHORE-HIGH-COURT-LAHORE

ZAFAR IQBAL VS State

1. 9(c)—Possession of narcotics—Scope—Accused was convicted for having been found in possession of 1345 grams of charas—Prosecution had proved the guilt of accused beyond any reasonable doubt and had successfully discharged its burden through consistent and confidence inspiring evidence—Conviction of the accused was maintained—Accused was first offender—According to jail report, he had already undergone the substantial portion of his sentence—Accused had expressed remorse and repentance with an assurance not to deal with narcotics in future—Accused was given an opportunity to mend his ways, hence, the sentence of accused was reduced to the period already undergone by him—Appeal was dismissed with modification in sentence.

2022  YLRN  15   LAHORE-HIGH-COURT-LAHORE

ABID ALI VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, grant of—Delay in conclusion of trial—Scope—Accused was alleged to have been found in possession of 1300 grams of contraband—Earlier petition for grant of bail was not pressed while a direction was issued to the Trial Court to conclude the trial within a period of three months—Report of the Trial Court revealed that the defence was not very much interested in cross-examination of the prosecution witnesses since 3/4 adjournments were sought by the accused—High Court observed that it was not a case in which direction was violated but a case in which the trial could not be concluded beyond the act on the part of the accused and, therefore, by now instead of three months more than 10 and a half months had passed—Petition for grant of bail was allowed, in circumstances.

2022  PCrLJN  92   LAHORE-HIGH-COURT-LAHORE

TARIQ VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.6—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Report of Government Analysts—Failure of Analysts to apply test protocols—Effect—Prosecution case was that 1300 grams of charas was recovered from the possession of accused—Report of Forensic Science Laboratory did not indicate protocols applied to carry out the test, except concluding remarks that “black resinous material in sealed parcel contains charas”—Mandatory requirements of law provided under R. 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, had not been complied with—Held, it was not safe to rely on that report—Presumption of correctness was attached to the report of Government Analyst under S. 36(2) of the Control of Narcotic Substances Act, 1997, underlined statutory significance of the report, therefore, details of the test and analysis in the shape of protocols applied for the test were necessary to safeguard rights of the parties—Report of Forensic Science Agency was also not worthy of reliance, hence the same could not be read against the accused—Appeal was allowed by setting aside the conviction and sentence recorded by Trial Court and acquitted the accused, in circumstances.

2022  PCrLJN  29   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AAMIR VS State

Ss. 9(c) & 36—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Non-production of original report of Forensic Laboratory—Scope—Accused was alleged to have been found in possession of 1520 grams of charas—Copy of report of Forensic Laboratory was annexed with the record whereas original report was not brought on record—Even a duplicate copy of forensic report was inadmissible in evidence what to speak of authenticity of a photocopy thereof—Prosecution had failed to prove its case against the accused beyond reasonable doubt—Appeal was allowed, in circumstances.

2022  PCrLJN  3   LAHORE-HIGH-COURT-LAHORE

INAYAT ULLAH VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Scope—Accused was alleged to have been found in possession of four kilograms of charas—Investigating Officer/complainant had specifically stated before the Trial Court that all the sealed parcels were stamped with marks but when the parcel consisting of case property was shown to him during his deposition, he admitted that this was not the parcel which he had prepared, sealed and stamped, meaning thereby that the parcel consisting of case property tendered by the prosecution before the Trial Court was not the same, which was prepared and secured by the Investigating Officer at the crime scene—Similar was the position of Moharrar—Prosecution had failed to prove safe custody of the contraband right from its recovery, converting into parcel, keeping it with the police and its onward transmission to the Trial Court—Appeal against conviction was allowed, in circumstances.

2022  PTD  1611   KARACHI-HIGH-COURT-SINDH

DAWOOD-UR-REHMAN VS State

1. 2(s)—Control of Narcotic Substances Act (XXV of 1997), Ss.9, 72, 74 & 76—Possession of narcotics—Smuggling—Application of Customs Act, 1969—“Act to override other laws”—Scope—Prosecution case was that the FIA conducted raid at a house and recovered 170 bags of ketamine, tactfully concealed in bags of rice meant for export—Accused was arrested as he was present at the spot—Challan of the case was not filed in any court, therefore, the accused approached High Court for seeking bail—Special Judge (Customs, Taxation and Anti-Smuggling) had not entertained the report of the police and had returned the same—Investigating Officer, thereafter, reportedly attempted to submit the challan in the court established under Control of Narcotic Substances Act, 1997, but it was not accepted for want of jurisdiction—Validity—Section 72 of Control of Narcotic Substances Act, 1997, envisaged that prohibition and restriction imposed under the Act on import, export of narcotic drug, psychotropic substances would be deemed to be prohibitions and restrictions imposed under the Customs Act, 1969, and the provisions of said Act would apply—First proviso stipulated that notwithstanding anything contained in any law including the Customs Act, 1969, all the offences relating to narcotic drugs would be tried under the provision of the Act—Second proviso, which appeared to be aimed at meeting any investigation related exigency in that regard, elucidated that where an Officer of Customs apprehended a person involved in any such offence, he would be empowered to carry out inquiry or investigation in the manner as an officer authorized under this Act, which meant that if an offence of smuggling in terms of Customs Act, 1969, was committed in respect of any narcotic drug, etc. the scheme under Control of Narcotic Substances Act, 1997, would come into play and the accused would be dealt with under the provisions of said Act—Arrest and investigation by an officer not strictly authorized by the Act would stand legitimized as having been done by an officer under the Act—Outcome of such investigation for conducting a trial would be the subject matter of the Act and would be looked into by a Court established under the Act—Combined reading of Ss. 74 & 76 of Control of Narcotic Substances Act, 1997, jointly provided an overriding character of Control of Narcotic Substances Act, 1997, in the matters of punishment to an accused involved in narcotics cases and applicability of its provisions notwithstanding anything contained in any other law—Even in the face of any conflict between provisions of said Act and other laws criminalizing an action, its consequence, and the medium to deliver or enforce it, provisions of Control of Narcotic Substances Act, 1997, would prevail over the other law—Investigating Officer was directed by the High Court to submit challan in the court established under the Control of Narcotic Substances Act, 1997—Petition was disposed of accordingly.

2022  YLR  2117   KARACHI-HIGH-COURT-SINDH

ABDUL NASIR VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession of Narcotics—Appreciation of evidence—Non-association of private witnesses in recovery proceeding—Scope—Prosecution case was that three kilograms of charas was recovered from the possession of accused—Record showed that it was the case of spy information when complainant /ASI had sufficient time to call the independent persons of the locality to witness the recovery proceedings but it was not done—Cross-examination of complainant showed that there was Madarassa nearby the place of arrest and recovery and there were also some villages of Baloch community around the place of arrest and recovery, hence the question arose when the private persons were available at the spot, why the police party did not join them as recovery witness—Provisions of S. 103, Cr.P.C. were not attracted to the cases of personal search of the accused in such like cases, where alleged recovery was made on a road and the people were available there, omission to secure independent mashirs, particularly, in the case of spy information could not be brushed aside lightly—Prime object of S.103, Cr.P.C., was to ensure transparency and fairness on the part of police during course of recovery, curbed false implication and minimize the scope of foisting of fake recovery upon accused—No explanation was on record as to why the independent witnesses were not associated in the recovery proceedings—Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt—Appeal was allowed, in circumstances and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

2022  YLR  2117   KARACHI-HIGH-COURT-SINDH

ABDUL NASIR VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 342—Possession of Narcotics—Appreciation of evidence—Defence plea—Scope—Prosecution case was that three kilograms of charas was recovered from the possession of accused—Accused in his statement recorded under S. 342, Cr.P.C., had taken the plea that he had been falsely implicated in the case by the police on account of his enmity with his community people—In that regard accused had also annexed the copies of two FIRs to strengthen his plea—All the said factors suggested the false implication of accused in the case, which could not be ruled out—Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt—Appeal was allowed, in circumstances and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

2022  YLR  2117   KARACHI-HIGH-COURT-SINDH

ABDUL NASIR VS State

1. 9(c)—Possession of Narcotics—Appreciation of evidence—Safe custody of charas and its transmission to the laboratory was doubtful—Scope—Prosecution case was that three kilograms charas was recovered from the possession of accused—Record showed that there was no mention in the FIR as to how the alleged charas recovered from the accused was weighed—No customer was found at the place of incident though it was the case of prosecution that accused was openly selling charas over there—Furthermore, as per available record, accused had no previous criminal record and the accused did not make any effort to run away from the place of incident—After recovery of charas from the accused, it was sent to the Chemical Examiner after five days and safe custody of the charas at Malkhana and its safe transit had not been established at trial—No corroboration in the evidence of prosecution witnesses was found—Matter of record was that the charas was recovered from possession of accused and was kept in Malkhana but it had not been proved that it was a safe transit case—Prosecution evidence in respect of accused was without independent corroboration—Prosecution had failed to prove that the charas was in safe custody—Even positive report of the Chemical Examiner would not prove the case of prosecution marred with unexplained delay— Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt—Appeal was allowed, in circumstances and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

2022  YLR  2047   KARACHI-HIGH-COURT-SINDH

ALLAHDAD VS State

1. 9(c)—Possession of charas—Appreciation of evidence—Benefit of doubt— Prosecution case was that accused was arrested by the police from a passenger van on being found in possession of 4000 grams charas—Record showed that the complainant had not mentioned the registration number of the van and name of its driver in memo of arrest and recovery and FIR—Complainant and Investigating Officer had failed to obtain and produce the copies of the registration book and route permit of the alleged van to establish that the alleged wagon was in fact plied on the pointed route, which was in fact matter of great importance in view of the admission of said complainant in his cross-examination that no van directly ran from said route—Investigating Officer had not recorded the statement of the driver of the van under S.161, Cr.P.C.—Driver of the van was an important witness of the prosecution to establish that the accused was in fact travelling through his van, hence, he should have been joined in investigation—Prosecution, therefore, was not able to prove the existence and presence of alleged van and also the fact of its stoppage on the scene of occurrence, as well as the travelling of the accused in the van, if it existed at the date and time mentioned by the prosecution—Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt—Appeal against conviction was allowed, in circumstances.

2022  YLR  2047   KARACHI-HIGH-COURT-SINDH

ALLAHDAD VS State

1. 9(c)—Possession of charas—Appreciation of evidence—Benefit of doubt—Non-production of record of daily diary and Register No.19—Scope—Prosecution case was that accused was arrested by the police from a passenger van on being found in possession of 4000 grams charas—Prosecution had not produced on record the certified copies of the original daily diary entries and entry of original Malkhana Register No.19—Departure Entry and arrival Entry of complainant, departure entry of recovery witness, departure entry of Investigating Officer entry whereby said Investigating Officer allegedly handed over the case property to WHC and entry in Register No.19 all were uncertified and hand written entries on plain papers—Even latter two entries were undated—Record did not reflect that original daily diary register and register No. 19 were produced for the examination of the Trial Court at the time of recording evidence of witnesses—No credibility could be attached to the said documents—Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt—Appeal against conviction was allowed, in circumstances.

2022  YLR  2047   KARACHI-HIGH-COURT-SINDH

ALLAHDAD VS State

9. 9(c)—Possession of charas—Appreciation of evidence—Benefit of doubt—Safe transmission of recovered substance from police station to Forensic Science Laboratory for analysis—Scope—Prosecution case was that accused was arrested by the police from a passenger van on being found in possession of 4000 grams charas—Prosecution had failed to prove the safe custody of the recovered charas and its safe transmission to Chemical Examiner—Recovery of charas was allegedly effected on 09.09.2020 and the samples were sent for chemical analysis on 11.09.2020, however, it was not known as to where and in whose possession the alleged samples were kept during intervening period—Investigating Officer had deposed that he handed over the case property to WHC to keep it in safe custody—Said WHC had not been examined by the prosecution, therefore, no evidence was available on record to prove the safe custody of the recovered substance at the police station and its safe transmission from said place to the office of Chemical Examiner—Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt—Appeal against conviction was allowed, in circumstances.

2022  YLR  1639   KARACHI-HIGH-COURT-SINDH

REHMATULLAH VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession and transportation of 1000 kilograms charas—Appreciation of evidence—Association of private witnesses—Scope— Prosecution case was that 1000 kilograms charas was recovered from the diesel tank of the truck of accused persons—Although, no independent mashir was associated with the arrest and recovery of the accused and narcotic, S. 103, Cr.P.C., had been excluded for offences falling under the Control of Narcotic Substances Act, 1997, by virtue of S. 25 of the Act—Due to public apathy most citizens were not prepared to act as independent mashirs in such like cases—Incident was night time and nobody was available to be an independent mashir—Circumstances established that the prosecution had proved its case against the accused—Appeal against conviction was dismissed accordingly.

2022  YLR  1639   KARACHI-HIGH-COURT-SINDH

REHMATULLAH VS State

1. 9(c)—Possession of narcotic substances—Scope—High Court observed that courts were expected to adopt a dynamic approach and not to acquit the accused on technicalities.

2022  YLR  1639   KARACHI-HIGH-COURT-SINDH

REHMATULLAH VS State

S.9(c)—Possession and transportation of 1000 kilograms charas—Appreciation of evidence—Chemical analysis report—Scope—Prosecution case was that 1000 kilograms charas was recovered from the diesel tank of the truck of accused persons—Chemical report was positive—Fact that a sample was taken for chemical analysis from each recovered packet of narcotic, as in that case, which each turned out to be positive would render all the material in each recovered packet as a narcotic—Circumstances established that the prosecution had proved its case against the accused—Appeal against conviction was dismissed accordingly.

2022  YLR  1639   KARACHI-HIGH-COURT-SINDH

REHMATULLAH VS State

S.9(c)—Possession and transportation of 1000 kilograms charas—Appreciation of evidence—First Information Report was lodged with promptitude—Scope—Prosecution case was that 1000 kilograms charas was recovered from the diesel tank of the truck of accused persons—Record showed that the FIR was registered with promptitude giving no time for concoction—Statements under S.161, Cr.P.C. of the witnesses were recorded promptly which were not significantly improved upon by any witness at the time of giving evidence—Circumstances established that the prosecution had proved its case against the accused—Appeal against conviction was dismissed accordingly.

2022  YLR  1639   KARACHI-HIGH-COURT-SINDH

REHMATULLAH VS State

S.9(c)—Possession and transportation of 1000 kilograms charas—Appreciation of evidence—Prosecution case was that 1000 kilograms charas was recovered from the diesel tank of the truck of accused persons—Record showed that the prosecution witnesses proceeded to the pointed place based on spy information to check a particular truck which was being driven by the named accused which contained huge quantities of narcotics was stopped at the particular place where the accused was arrested whilst being in the particular truck as per spy information and from where the recovery was made—Arrest and recovery was made on the spot and the accused was caught red handed with the narcotics by the police whose evidence fully corroborated each other in all material respects as well as the prosecution case—In the present case no enmity had been suggested against any of the police witnesses and as such the police had no reason to falsely implicate the accused in a false case—Police evidence which was corroborative in all material respects was believable—Narcotics were recovered from the truck which the accused was driving alone with no other passengers and the narcotics were recovered on his pointation from secret sealed cavities near/under the diesel tank of the truck which only he could have known about—Truck was recovered along with its key and the narcotics—Accused was the sole person in the truck and was driving at the time when it was stopped and the accused himself pointed out the secret cavities where the narcotic was hidden and as such he had actual knowledge that he was transporting the narcotics—To foist such a large amount of charas being in total 1000 kilograms on the accused was extremely difficult—Circumstances established that the prosecution had proved its case against the accused—Appeal against conviction was dismissed accordingly.

2022  YLR  1639   KARACHI-HIGH-COURT-SINDH

REHMATULLAH VS State

S.9(c)—Possession and transportation of 1000 kilograms charas—Appreciation of evidence—Safe custody—Scope—Prosecution case was that 1000 kilograms charas was recovered from the diesel tank of the truck of accused persons—Recovered narcotics were sealed on the spot and kept in safe custody at the malkana from the time of their recovery to the time when they were taken for chemical analysis—No suggestion of tampering with the same had been made—Recovered narcotics were kept in the malkana and then the next day taken for chemical examination by witness in sealed condition—Circumstances established that the prosecution had proved its case against the accused—Appeal against conviction was dismissed accordingly.

2022  YLR  1639   KARACHI-HIGH-COURT-SINDH

REHMATULLAH VS State

Ss. 9(c) & 29—Possession and transportation of 1000 kilograms charas—Appreciation of evidence—Burden of proof—Scope—Prosecution case was that 1000 kilograms charas was recovered from the diesel tank of the truck of accused persons—Under S.29 Control of Narcotic Substances Act, 1997 once the recovery had been proven as in the case the onus shifted to the accused to show his innocence in that at least he had no knowledge of the narcotics—Accused had not been able to do so in the case—Circumstances established that the prosecution had proved its case against the accused—Appeal against conviction was dismissed accordingly.

2022  YLR  1163   KARACHI-HIGH-COURT-SINDH

MUHAMMAD FAISAL VS State

Ss. 9(c) & 29—Transportation of narcotics—Presumption from possession of illicit articles—Appreciation of evidence—Scope—Accused along with others was arrested while transporting 110 kilograms of heroin powder—Arrest and recovery was made on the spot and the accused was caught red handed with the narcotic—Departure entry at the police station clearly showed that the raiding party was going to the place of arrest on the basis of spy information, which corroborated the prosecution case—First Information Report was also registered with promptitude giving no time for concoction and the S.161, Cr.P.C. statements were recorded promptly which were not significantly improved upon by the prosecution witnesses at the time of giving evidence—Narcotic was recovered from the boot of the car of which the accused was a passenger at the time of its recovery and the car was owned by him which he had admitted in his statement under S.342, Cr.P.C.—No suggestion of tampering with the narcotic was made—Once recovery was proved the onus shifted to the accused to show his innocence in that at least he had no knowledge of the narcotic but the accused was not able to do so—Prosecution had proved its case beyond a reasonable doubt against the accused—Appeal against conviction was dismissed, in ircumstances.

2022  PCrLJ  1779   KARACHI-HIGH-COURT-SINDH

JAWAAD ALI VS State

1. 9(c)— Possession of narcotics—Appreciation of evidence—Benefit of doubt—Chain of safe custody—Scope—Prosecution case was that 2010 grams charas was recovered from the vehicle of accused and 2110 grams charas was recovered from the vehicle of co-accused—Investigating Officer stated that he received the case property from Sub-Inspector Police (SIP) and sent the same for chemical analysis the next day—Investigating Officer did not place anything on record to show where the recovered charas was kept during that intervening period—Indeed, no malkhana entry was produced, nor was the officer in charge of the malkhana called upon to depose as to safe custody of the charas—First Information Reports were also silent as to the custody of the recovered charas and even the letter shown to have been addressed by the Investigating Officer to the Chemical Examiner was bereft of a reference number, with it also being acknowledged by the Investigating Officer during cross-examination that the accused persons had not been implicated in any other narcotics case—Chain of custody remained shrouded in uncertainty, which was of particular significance as the sanctity of the chain was absolutely imperative for the Chemical Examiner’s Report to have any real probative value—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was allowed, in circumstances.

2022  PCrLJ  1779   KARACHI-HIGH-COURT-SINDH

JAWAAD ALI VS State

1. 9(c)— Possession of narcotics—Appreciation of evidence—Benefit of doubt—Statements of complainant and Investigating Officer—Contradictions—Scope—Prosecution case was that 2010 grams of charas was recovered from the vehicle of accused and 2110 grams charas was recovered from the vehicle of co-accused—Arrest of the accused persons and recovery of charas from their possession were said to have taken place at around 0010 hours with the memo. of arrest and seizure said to have been prepared by the complainant on the spot showing the occurrence as spanning from 0020 to 0130 hours—Complainant had stated that the police party then returned to the Police Station, where the investigation was entrusted to the Investigating Officer and relevant papers were handed over to him, with the time of registration of the FIR’s being entered as 0255 hours—Depositions of the prosecution witnesses narrated that the Investigating Officer then left the Police Station at the place of incident at 0315 hours, accompanied by the complainant and Police Constable, and conducted a site inspection at 0400 hours so as to return to the Police Station at 0430 hours with the relevant entries produced by the Investigating Officer reflecting such departure and arrival—Matter was clouded by the deposition of the Investigating Officer that his duty timings on the day were from 0800 hours to 2000 hours and the fact that the memo of inspection shown as having been prepared on the spot bore a time of 0900 hours—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was allowed, in circumstances.

2022  PCrLJ  1779   KARACHI-HIGH-COURT-SINDH

JAWAAD ALI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Contradictions in the statements of witnesses—Effect—Prosecution case was that 2010 grams charas was recovered from the vehicle of accused and 2110 grams charas was recovered from the vehicle of co-accused—Complainant merely mentioned that the police party had patrolled the specific area, whereas Police Constable stated that they had patrolled through a different area—Complainant stated that 5 to 6 vehicles had been checked prior to the arrest of the accused persons, Police Constable said that they did not check any other vehicle except the vehicle of accused—Complainant stated that there was an interval of about 10 to 15 minutes between the arrival of the first vehicle and the second vehicle of the accused persons, whereas Police Constable confirmed that both vehicles arrived simultaneously at the place of incident—Complainant deposed that it was he who had conducted the search of accused, whereas Police Constable contrarily stated that it was he (constable) who had done so—Complainant deposed that two pieces of charas wrapped in yellow colour plastic tape were found tied around the abdomen of co-accused with a cloth strip, whereas Police Constable stated that one packet of charas in the shape of similarly wrapped piece was so recovered—Complainant stated that private witnesses were not available at the time of arrest and recovery, whereas Police Constable stated that the Complainant asked one or two passers-by to act as witnesses, but they refused—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was allowed, in circumstances.

2022  PCrLJ  1779   KARACHI-HIGH-COURT-SINDH

JAWAAD ALI VS State

1. 9(c)—Qanun-e-Shahadat (10 of 1984), Art. 129(g)—Possession of narcotics— Appreciation of evidence— Benefit of doubt—Withholding material evidence—Scope—Prosecution case was that 2010 grams charas was recovered from the vehicle of accused and 2110 grams charas was recovered from the vehicle of co-accused—Head Constable who was a witness to the memo of arrest, search and seizure and was also present at the time of sealing of the parcels of alleged charas was dropped as a witness by the prosecution—Non-examining of said witness was fatal to the prosecution case—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was allowed, in circumstances.

2022  PCrLJ  1506   KARACHI-HIGH-COURT-SINDH

The STATE/ANTI-NARCOTICS FORCE through Assistant Director (Law) VS JUDGE SPECIAL COURT-I (CNS) CLIFTON, KARACHI

Ss. 48, 6 & 9(b)—Appeal—Possession of narcotics—Revision petition—Maintainability—Condonation of delay—Scope—Prosecution preferred appeal for enhancement of sentence awarded by Trial Court in view of plea of guilty—Accused was convicted for an offence under Ss. 6 & 9(b) of Control of Narcotic Substances Act, 1997—Anti-Narcotics Force could only invoke the jurisdiction of appeal under S. 48 of Control of Narcotic Substances Act, 1997, for challenging the order of Special Court—Authorization by the Acting Director, Anti-Narcotics Force under S. 14 of Control of Narcotic Substances Act, 1997, for filing revision petition was given after the expiry of statutory period of limitation for challenging the impugned order—Appellant, neither at the time of filing revision nor at the time of oral request to convert the revision into appeal, had filed any application for condonation of limitation period for filing the appeal—In the absence of any request for condonation of delay or any oral explanation for the delay in filing appeal, no justification existed to entertain the hopelessly time-barred appeal—Reasoning advanced by the Trial Court was confession of guilt and also that the accused was of young age being the only bread-earning member of the family as well as admittedly first offender—Appeal was dismissed.

2022  PCrLJ  1141   KARACHI-HIGH-COURT-SINDH

DAWOOD-UR-REHMAN VS State

Ss. 9, 72, 74 & 76—Customs Act (IV of 1969), S. 2(s)—Possession of narcotics—Smuggling—Application of Customs Act, 1969—“Act to override other laws”—Scope—Prosecution case was that the FIA conducted raid at a house and recovered 170 bags of ketamine, tactfully concealed in bags of rice meant for export—Accused was arrested as he was present at the spot—Challan of the case was not filed in any court, therefore, the accused approached High Court for seeking bail—Special Judge (Customs, Taxation and Anti-Smuggling) had not entertained the report of the police and had returned the same—Investigating Officer, thereafter, reportedly attempted to submit the challan in the court established under Control of Narcotic Substances Act, 1997, but it was not accepted for want of jurisdiction—Validity—Section 72 of Control of Narcotic Substances Act, 1997, envisaged that prohibition and restriction imposed under the Act on import, export of narcotic drug, psychotropic substances would be deemed to be prohibitions and restrictions imposed under the Customs Act, 1969, and the provisions of said Act would apply—First proviso stipulated that notwithstanding anything contained in any law including the Customs Act, 1969, all the offences relating to narcotic drugs would be tried under the provision of the Act—Second proviso, which appeared to be aimed at meeting any investigation related exigency in that regard, elucidated that where an Officer of Customs apprehended a person involved in any such offence, he would be empowered to carry out inquiry or investigation in the manner as an officer authorized under this Act, which meant that if an offence of smuggling in terms of Customs Act, 1969, was committed in respect of any narcotic drug, etc. the scheme under Control of Narcotic Substances Act, 1997, would come into play and the accused would be dealt with under the provisions of said Act—Arrest and investigation by an officer not strictly authorized by the Act would stand legitimized as having been done by an officer under the Act—Outcome of such investigation for conducting a trial would be the subject matter of the Act and would be looked into by a Court established under the Act—Combined reading of Ss. 74 & 76 of Control of Narcotic Substances Act, 1997, jointly provided an overriding character of Control of Narcotic Substances Act, 1997, in the matters of punishment to an accused involved in narcotics cases and applicability of its provisions notwithstanding anything contained in any other law—Even in the face of any conflict between provisions of said Act and other laws criminalizing an action, its consequence, and the medium to deliver or enforce it, provisions of Control of Narcotic Substances Act, 1997, would prevail over the other law—Investigating Officer was directed by the High Court to submit challan in the court established under the Control of Narcotic Substances Act, 1997—Petition was disposed of accordingly.

2022  PCrLJ  961   KARACHI-HIGH-COURT-SINDH

MUREED MAJEEDANO VS State

Ss. 9(c) & 25—Police Rules, 1934, R. 25.2(3)—Criminal Procedure Code (V of 1898), S. 103—Recovery of narcotic substance—Appreciation of evidence—Recovery witnesses—Evidence of police officials—Principle—Administration of justice—Charas weighing 14 kilograms was recovered from custody of accused—Trial Court convicted the accused and sentenced him to imprisonment for life—Validity—Private persons were present at the time of recovery so also persons sitting at hotel, who refused to act as Mashir—Complainant/investigating officer failed to mention names of those person who refused to act as Mashir—High Court declined to accept explanation given by investigating officer that independent persons were available but they were not willing to give evidence as it was no excuse for excluding such persons without legal justification—Justice was not to be done only in Courts—Other persons entrusted with powers were also responsible to do justice at their level—Responsible officer of Anti-Narcotic Force, invested with powers of investigation was also obliged in law to do justice and conduct fair trial and independent investigation—Prosecution failed to prove that Charas was in safe custody for the period and positive report of Chemical Examiner could not prove case of prosecution—Reasonable doubts existed in the case of prosecution, it was not necessary that there should many circumstances creating doubts—If there was a single circumstance which had created reasonable doubt in a prudent mind about guilt of accused, then accused was entitled to the benefit as not a matter of grace and concession but as a matter of right—High Court set aside conviction and sentence awarded to accused and acquitted him of the charge as prosecution failed to prove its case—Appeal was allowed, in circumstances.

2022  PCrLJ  690   KARACHI-HIGH-COURT-SINDH

ALI KHAN VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, grant of—Further inquiry—Non-association of independent witnesses—Complainant acting as Investigating Officer—Delay in sending samples to Chemical Examiner—Scope—Accused was alleged to have been found in possession of 4600 grams of charas—Complainant had not associated with him any private person either from the place of information or from the place of incident to witness the event—Case of the prosecution was based upon the evidence of Anti-Narcotics Force officials—No doubt the evidence of the Anti-Narcotics Force officials was as good as private persons, but when the whole case of the prosecution rested upon the evidence of Anti-Narcotics Force officials, therefore, their evidence was required to be minutely scrutinized at the time of trial—Complainant himself had investigated the matter—No buyer was available and no evidence was available as to whom the narcotic was to be sold—Nothing was available on record to show as to whether the alleged charas was weighed along with shopper or otherwise—Samples of allegedly recovered charas were sent to the Chemical Examiner after a considerable time for which no plausible explanation was given by the prosecution—Accused was not a previous convict and was behind bars since his arrest—Case of accused required further probe—Accused was admitted to post-arrest bail, in circumstances.

2022  PCrLJ  480   KARACHI-HIGH-COURT-SINDH

COLLECTOR OF CUSTOMS PREVENTIVE MODEL CUSTOMS COLLECTORATE, CUSTOMS HOUSE, KARACHI VS MAQBOOL KHAN

1. 9(b)—Possession of narcotic—Appreciation of evidence—Appeal against acquittal—Benefit of doubt—Contradictions in the statements of witnesses—Scope—Prosecution case was that heroin powder was recovered from the possession of accused—Complainant deposed that he found that heroin powder was also concealed in the bottom of shoes of the accused—Said version was contradicted by contents of mashirnama and FIR produced by him in his evidence, in which he had mentioned that the examination of pair of shoes led to further recovery of off-white heroin packed in polythene packets which were concealed in the cavities under the inner soles of said pair of shoes—Complainant deposed that he found that heroin powder was also concealed in the bottom of shoes of the accused—However, said version was belied by mashir who stated that complainant in his presence and of co-mashir checked the shoes of accused and from inside the shoes of accused further 330 grams off-white heroin powder was recovered—Neither the chemical reports produced by Investigating Officer in his evidence showed that whole heroin powder lying in both parcels was consumed in examination nor the sealed parcel containing remaining heroin powder of both parcels checked by the Chemical Examiner was produced in evidence by the witnesses in the case as proof—Chemical reports were also silent about availability of signature of complainant and mashirs on both sample parcels—Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt—Appeal was dismissed with costs of Rs. 30,000 imposed on concerned Collector of Customs.

2022  PCrLJ  480   KARACHI-HIGH-COURT-SINDH

COLLECTOR OF CUSTOMS PREVENTIVE MODEL CUSTOMS COLLECTORATE, CUSTOMS HOUSE, KARACHI VS MAQBOOL KHAN

4. 9(b)—Possession of narcotic—Appreciation of evidence—Appeal against acquittal—Benefit of doubt—Prosecution case was that heroin powder was recovered from the possession of accused—Complainant deposed that he separated three samples of five grams each from the heroin powder recovered from the shoes of accused in presence of mashirs—Said version was belied by mashir who had stated that the complainant separated six samples of 20 grams each viz: three samples of heroin recovered from suitcase and three samples of heroin powder recovered from shoes of accused—Prosecution had failed to even prove the separation of six samples each containing five grams heroin powder—When the separation of six samples of five grams heroin powder each as claimed by the complainant was not proved by the prosecution through evidence of witnesses then how it could be believed that samples sent to the Chemical Examiner were of the alleged heroin powder recovered from suitcase, its metal handle and shoes of accused—Said reason alone would cut the root of the prosecution case and made the whole case doubtful—Benefit of doubt if any would go in favour of the accused—Said version of complainant was also belied by the contents of chemical report showing that the sealed parcel contained heroin powder weighing 4.9 grams—Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt—Appeal was dismissed with costs of Rs. 30,000 imposed on concerned Collector of Customs.

2022  PCrLJ  412   KARACHI-HIGH-COURT-SINDH

MUHAMMAD YOUSIF VS State

Ss. 9(c), 25 & 29—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotics—Appreciation of evidence—Prompt FIR—Mode of making searches and arrest—Refusal of independent persons to act as mashir—Scope—Accused was allegedly to have been found in possession of 300 kgs of charas—First Information Report was lodged with promptitude giving no time for concoction and the S. 161, Cr.P.C. statements were recorded promptly which were not significantly improved upon—Arrest and recovery was made on the spot and the accused was caught red handed with the narcotic by the police whose evidence fully corroborated each other in all material respects as well as the prosecution case—Police had no reason to falsely implicate the accused in a case—Police evidence was corroborative in all material respects—No major contradictions were found in the evidence of prosecution witnesses—Narcotic was recovered from the car which the accused had revealed to the police and he was the only person in the car, as such, there was no doubt that the accused had actual knowledge of the narcotic which was being transported—Once the recovery was proven, the onus had shifted to the accused to show his innocence in that at least he had no knowledge of the narcotic—Improbable for the police to foist such a large amount of charas being in total 300 kgs—No delay in sending for the chemical report for analysis which turned out to be positive—Recovered narcotic was kept in safe custody—Although no independent mashir was associated with the arrest and recovery of the accused but it had come in evidence that no private person was prepared to become an independent mashir at the time of arrest and recovery despite being asked—Even otherwise S. 103, Cr.P.C., was excluded for offences falling under the Control of Narcotic Substances Act, 1997 by virtue of S. 25—Appeal against conviction was dismissed, in circumstances.

2022  PCrLJ  279   KARACHI-HIGH-COURT-SINDH

FAHAD VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Non-association of independent witnesses—Delay in sending samples to Chemical Examiner—Complainant acting as Investigating Officer—Contradictory statements—Effect—Accused was convicted for having been found in possession of 3400 grams of charas—Complainant despite having advance information and the place of recovery being a thickly populated area had not bothered to pick/associate any independent mashir—No evidence was available on record to show that the charas was kept in safe custody from the time of its recovery until it was sent to and received in the office of Chemical Examiner, which was with an unexplained delay of 06 days—Incharge of Malkhana was not examined by the prosecution—Complainant had not only lodged the FIR but had also conducted investigation of the case himself as well as he himself had taken the case property for Chemical Examination—Propriety demanded that the case must have been investigated by an independent officer but not by the complainant himself—Prosecution witnesses in their evidence had stated that alleged narcotic substance was wrapped in a black colour shopper and it was sealed in a white colour cloth whereas Chemical Examiner’s report showed that it was only wrapped in black colour shopper—Two seals were affixed on the parcel, as per prosecution witnesses, whereas Chemical Examiner’s report revealed that it was having three seals/stamps—Chemical Examiner’s report was silent about letter as well as the date under which the sealed parcel was sent for report—Prosecution had failed to prove its case against the accused— Appeal against conviction was allowed, in circumstances.

2022  PLD  233   KARACHI-HIGH-COURT-SINDH

ABDUL REHMAN VS State

Ss. 9(c), 21, 25 & 76—Pakistan Coast Guards Act (XVIII of 1973), Ss. 2 (i), 14 (2) & First Sched.—-Notification S.R.O. No. 787(I)/2004, dated 16-09-2004—Criminal Procedure Code (V of 1898), S.103—Narcotic substance, recovery of—Appreciation of evidence—Recovery proceedings—Pakistan Coast Guards, jurisdiction to investigate—Witnesses from public, non-associating of—Charas weighing 100 kilograms was recovered by Pakistan Coast Guards from the vehicle which was being driven by accused—Trial Court on the basis of investigation conducted by Pakistan Coat Guards convicted and sentenced the accused for imprisonment for life—Validity—Complainant did to give any explanation that why he did not request any official of Highway patrol to become witness to search and arrest of accused—Prosecution for protection of S.25 of Control of Narcotic Substances Act, 1997, was to give justified reasons, otherwise non-compliance of S.103, Cr.P.C. was fatal—Failure of prosecution to gather otherwise available independent witnesses created serious doubts in their case against accused—Inquiry was faulty and there was lack of corroborative evidence to connect accused with Charas allegedly recovered from truck—In presence of non-obstante clause in S.76 of Control of Narcotic Substances Act, 1997, anything done or purportedly to have been done by Pakistan Coast Guards in the name of powers already available to them under Pakistan Coast Guards Act, 1973, while performing functions under S.21(1) of Control of Narcotic Substances Act, 1997, was in excess of powers under notification S.R.O. No. 787(I)/2004, dated 16-09-2004—High Court directed the authorities to ensure that illegality committed by Pakistan Coast Guards in prosecution of cases under Control of Narcotic Substances Act, 1997, should be stopped forthwith—High Court further directed that investigations and prosecutions of all pending cases registered by Pakistan Coast Guards in exercise of powers and functions under S. 21(1) of Control of Narcotic Substances Act, 1997, should be assumed/transferred to other agencies authorized to deal with menace of narcotics and its trafficking strictly in accordance with the provisions of Control of Narcotic Substances Act, 1997—High Court set aside conviction and sentence awarded to accused and acquitted him of the charge—Appeal was allowed in circumstances.

2022  MLD  1966   KARACHI-HIGH-COURT-SINDH

SAJID REHMAN VS State

S.9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession of Narcotics—Appreciation of evidence—Non-association of private witnesses—Scope—Prosecution case was that 23 kilograms Garda Charas in twenty packets was recovered from cabin of oil tanker of the accused—Allegedly, no independent mashir was associated with the arrest and recovery of the accused and narcotics, which was violation of S.103, Cr.P.C.—Section 103, Cr.P.C., had been excluded for offences falling under the Control of Narcotic Substances Act, 1997, by virtue of S.25 of the Act—Circumstances established that the prosecution had proved its case beyond a reasonable doubt—Appeal was dismissed accordingly.

2022  MLD  1966   KARACHI-HIGH-COURT-SINDH

SAJID REHMAN VS State

S.9(c)—Possession of Narcotics—Appreciation of evidence—Prosecution case was that 23 kilograms of Garda Charas in twenty packets was recovered from cabin of oil tanker of the accused—First Information Report was lodged with promptitude giving no time for concoction and the S.161, Cr.P.C statements of the witnesses were also recorded promptly which were not significantly improved upon by any witness at the time of giving evidence—Vehicle in which the accused were travelling in and where it would be when it was stopped was based on spy information which turned out to be correct—Arrest and recovery was made from the vehicle in which the accused were travelling hidden under the driver seat and as such the accused were both caught red handed with the narcotics on the spot by the police whose evidence fully corroborated each other in all material respects as well as the prosecution case—Most significantly the narcotics were recovered from accused whilst sitting in the truck which was being driven by one of the accused from whom a valid driving licence was recovered along with the narcotics when the truck was stopped—Beyond doubt the accused had actual knowledge of the narcotics which were being transported—Under S.29 Control of Narcotic Substances Act, 1997, once the recovery had been proven, as in the present case, the onus shifted to the accused to show his innocence in that at least he had no knowledge of the narcotics—None of the accused had been able to prove his innocence—Extremely difficult to foist such a large amount of charas being in total 23 kilograms—No delay in sending the chemical report for analysis which turned out to be positive—Recovered narcotics were kept in safe custody from the time of their recovery to the time when they were taken for chemical analysis—No suggestion of tampering with the same had even been made—Narcotics were sealed on the spot, remained sealed in the malkhana before being transported to the Chemical Examiner in a sealed condition as per the chemical report with the required protocols being carried out—Circumstances established that the prosecution had proved its case beyond a reasonable doubt—Appeal was dismissed accordingly.

2022  MLD  1966   KARACHI-HIGH-COURT-SINDH

SAJID REHMAN VS State

S.9(c)—Possession of Narcotics—Scope—Courts are supposed to adopt a dynamic approach and not to acquit the accused on technicalities.

2022  MLD  1941   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ASGHAR VS State

S.9(c)—Possession of ten kilograms of charas—Appreciation of evidence—Benefit of doubt—Prosecution case was that ten packets of charas, each weighing one kilogram, was recovered from the possession of the accused—In the present case, Police party had gone for the express purpose of patrolling and checking—Accused albeit a resident of another city, was standing alone peddling drugs at a remote location on the outskirts of the city, which did not appeal to reason and good sense, and assumed significance due to the apparent conflict between the depositions of two witnesses as to the presence of private persons at place of arrest at the relevant time, who could have acted as independent witnesses—Indeed, complainant stated that no private persons were available at the scene of the offence, hence no one could be asked to act as a mashir, whereas Head Constable stated that they requested passers-by to act as mashirs, but they refused—Even the statement of accused under S.161, Cr. P.C. appeared discrepant, as it predated the date of incident and arrest—Suffice it to say, viewed in juxtaposition, said factors served to cast doubt on the veracity of the prosecution’s case—Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt—Appeal against conviction was allowed, in circumstance.

2022  MLD  1941   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ASGHAR VS State

S.9(c)—Possession of ten kilograms of charas—Appreciation of evidence—Chain of safe custody—Scope—Prosecution case was that ten packets of charas, each weighing one kilogram, was recovered from the possession of the accused—Chain of custody of narcotic remained shrouded in uncertainty as nothing was brought on record to demonstrate as to where the case property was kept prior to being sent for analysis—Neither the officer in charge of the Malkhana nor the official who supposedly conveyed the samples to the office of the Chemical Examiner were called upon to depose—Indeed, while complainant said that he sealed the case property and handed over the same to Investigating Officer, but went on to say that he himself took the case property to the chemical laboratory—Investigating Officer said that it was he who sent the property to the Chemical Examiner, whereas the Chemical Examiner’s report reflected that the property had been received from SHO through Police Constable, who was never examined as witness—While Chemical Examiner’s report had real probative value, the sanctity of the chain of custody was absolutely imperative—Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt—Appeal against conviction was allowed, in circumstances.

2022  MLD  1538   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AMIR VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, grant of—Non-association of independent witnesses—Scope—Accused was alleged to have been found in possession of 1890 grams of charas—Case had already been challaned and the accused was not required for investigation—Prosecution case was that the accused was arrested on spy information from a thickly populated area but the complainant did not bother to join any independent person either from the place of information or from the place of incident to witness the event, therefore, false implication of accused could not be ruled out—Out of the four pieces 10 grams from each piece was separated for chemical examination and the whole property was not sent for such purpose—Accused was admitted to post-arrest bail, in circumstances.

2022  MLD  1452   KARACHI-HIGH-COURT-SINDH

FAYAZ VS State

S.9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that twenty seven kilograms of Charas was recovered from the luggage of accused persons while they were travelling through a bus—Prosecution case was that two bags containing Charas allegedly belonging to the accused, who were travelling in the bus, were secured by the Ranger Officials from the roof of the bus—Accused admitted that those bags belonged to them—Such prosecution evidence was not acceptable mainly for the reasons that luggage of all the passengers were lying on the roof of the bus—During investigation, neither the tickets of bus were collected/recovered from the accused nor tags of those bags were recovered for connecting the accused in the commission of crime—Admittedly, bags were lying upon the roof of the bus—Legally, the recovery of Charas was not from the exclusive possession of the accused—Trial Court convicted the accused on the ground that the accused admitted during interrogation in presence of the Ranger Officials that those bags belonged to them—Such evidence was legally in-admissible—Circumstances established that the prosecution had failed to prove its case against the accused—Appeal against conviction was allowed, in circumstances.

2022  MLD  1452   KARACHI-HIGH-COURT-SINDH

FAYAZ VS State

S.9(c)—Possession of narcotics—Appreciation of evidence—Call Data Record was not produced—Scope—Prosecution case was that twenty seven kilograms Charas was recovered from the luggage of accused persons while they were travelling through a bus—Record showed that the complainant and other Inspector Rangers reported the matter to high officials soon after the recovery of Charas, however, no call data /evidence through modern devices to that extent had been produced before the Trial Court for its satisfaction—Circumstances established that the prosecution had failed to prove its case against the accused—Appeal against conviction was allowed, in circumstances.

2022  MLD  1452   KARACHI-HIGH-COURT-SINDH

FAYAZ VS State

S.9(c)—Possession of narcotics—Appreciation of evidence—Defective investigation—Scope—Prosecution case was that twenty seven kilograms Charas was recovered from the luggage of accused persons while they were travelling through a bus, hence the FIR—Investigating Officer failed to examine the bus driver and its cleaner so also the passengers who were travelling in that bus to establish the ownership of the accused with regard to the bags lying on the roof of the bus—Circumstances established that the prosecution had failed to prove its case against the accused—Appeal against conviction was allowed, in circumstances.

2022  MLD  1452   KARACHI-HIGH-COURT-SINDH

FAYAZ VS State

S.9(c)—Possession of narcotics—Appreciation of evidence—Safe custody—Scope—Prosecution case was that twenty seven kilograms Charas was recovered from the luggage of accused persons while they were travelling through a bus—In the present case, there was no evidence that after the recovery of bags containing chars, the same were kept in Malkhana of Police Station Anti Narcotic Force—No incharge/Head Moharer of said Police Station had been examined before the Trial Court—Charas was sent to the Chemical Examiner through Police Constable who had not been examined by the Trial Court which clearly showed that safe transit to the Chemical Examiner had also not been established and the tampering with case property at Police Station, Anti Narcotic Force, could not be ruled out—Apart from that Chemical Examiner failed to prepare the report as per protocol provided in the rules—Report of Chemical Examiner though positive was deficient in the eyes of law—Circumstances established that the prosecution had failed to prove its case against the accused—Appeal was allowed, in circumstances.

2022  MLD  998   KARACHI-HIGH-COURT-SINDH

HAMDULLAH VS State

S.9(c)—Criminal Procedure Code (V of 1898), S. 497—Possession of narcotics—Bail—Scope—Control of Narcotic Substances Act, 1997, consolidates and amends the law relating to narcotic drugs and psychotropic substances—Act controls and prohibits the possession, processing and trafficking of these substances—It also lays progressive punishments for narcotic offences, Act provides for the constitution of Special Courts having exclusive jurisdiction to try narcotic offences—Section 51 of the Control of Narcotic Substances Act, 1997, provides that bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death—When the quantity of narcotics exceeds one kilogram, the case falls in clause (c) of S.9 of the Control of Narcotic Substances Act, 1997, for which death penalty or imprisonment for life has been provided—Discretion under S.497, Cr.P.C., can also not be exercised with regard to offences punishable with death or imprisonment for life unless the Court at the very outset is satisfied that such a charge appears to be false or groundless.

2022  MLD  998   KARACHI-HIGH-COURT-SINDH

HAMDULLAH VS State

Ss.497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25—Possession of narcotics—Bail, refusal of—Search to be made in presence of witnesses—Scope—Accused along with co-accused went to the GPO (General Post Office) to book the parcels containing contraband stuff where they were arrested on the indication of GPO staff—Accused had not come to GPO in good faith with co-accused being co-villager—No enmity, ill-will or grudge was alleged against the prosecution witnesses; on the contrary, sufficient material was brought by the prosecution on record—So far as the contention of accused that recovery was not witnessed by persons from public, High Court observed that S.25 of Control of Narcotic Substances Act, 1997, excluded the application of S. 103, Cr.P.C—Accused was not entitled to the grant of bail—Bail application was dismissed, in circumstances.

2022  MLD  796   KARACHI-HIGH-COURT-SINDH

AKHTAR ZARIN VS State

S.9(c)—-Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5—Delay in sending samples of contraband for chemical analysis—Effect—Samples were sent for chemical analysis with a delay of six days, however, the provisions governing such rules were directory and not mandatory and such chemical report was positive and complied with all relevant legal requirements and protocols as was apparent from the report itself—Appeal against conviction was dismissed, in circumstances.

2022  MLD  796   KARACHI-HIGH-COURT-SINDH

AKHTAR ZARIN VS State

S.9(c)—Criminal Procedure Code (V of 1898), S. 342—Possession of narcotics—Appreciation of evidence—Defence plea—Scope—Prosecution case was that on spy information, police party signalled the car of accused to stop, which led the culprits in the car to firing which hit the informer, police returned fire in self-defence, due to which, tyres of the car burst and stopped and accused was arrested—Arms, ammunition and 80 kilograms charas were recovered from secret cavities of the car, made in different parts of the car and inside the mudguards made with aluminium—Evidence of the complainant was corroborated in all material respects by a witness, who was an independent witness, who was behind the accused car at the toll plaza and acted as mashir of arrest and recovery and had no axe to grind with the accused and had no reason whatsoever to falsely implicate the accused in that case—Said witness was not a chance witness as he was travelling and was stuck behind the accused vehicle at the toll plaza, thus there was no reason to disbelieve said witness—Even the informer who was present with the Police party and who pointed out the accused’s vehicle was shot and killed during the operation which showed that the police had gone to the specific place as mentioned by the informer—No major contradictions in the evidence of the witnesses was found—Most significantly the narcotics were recovered from secret cavities in the car which was owned by the accused as admitted in his statement under S. 342, Cr.P.C and he was driving at the time of the arrest and recovery—Circumstances suggested that it would be extremely difficult to foist such a large amount of charas being 80 kilograms and the fact that it was all hidden in secret cavities in a car owned and driven by the accused, which pointed to his actual knowledge of the narcotics and his guilt for the offence as charged—Recovered narcotics were kept in safe custody from the time of their recovery to the time when they were taken for chemical analysis and no suggestion of tampering with the same had even been made—Circumstances established that prosecution had proved its case against the accused—Appeal against conviction was dismissed, in circumstances.

2022  MLD  796   KARACHI-HIGH-COURT-SINDH

AKHTAR ZARIN VS State

S.9(c)—Criminal Procedure Code (V of 1898), S. 342—Possession of narcotics—Appreciation of evidence—Defence plea—Scope—Prosecution case was that on spy information, police party signalled the car of accused to stop, which led the culprits in the car to firing which hit the informer, police returned fire in self-defence, due to which, tyres of the car burst and stopped and accused was arrested—Arms, ammunition and 80 kilograms charas were recovered from secret cavities of the car, made in different parts of the car and inside the mudguards made with aluminium—Record showed that the arrest and recovery was made on the spot and the accused was caught red handed with the narcotics by the police—Accused had also admitted his presence at the spot—Accused had claimed that the police had falsely implicated him since his wife had filed a case against the Investigating Officer—Said defence plea was not believable for the reason that if the Investigating Officer wanted to fix the accused, they would have fixed his wife instead as she was the one who filed the complaint and not the accused—Wife of accused did not come as a defence witness to support that position nor did he exhibit any document showing that the wife of accused had made any complaint against the Investigating Officer—Circumstances established that prosecution had proved its case against the accused—Appeal against conviction was dismissed, in circumstances.

2022  MLD  796   KARACHI-HIGH-COURT-SINDH

AKHTAR ZARIN VS State

S.9(c)—Possession of narcotics—Appreciation of evidence—Lodging of FIR—Promptness—Prosecution case was that on spy information, police party signalled the car of accused to stop, which led the culprits in the car to firing which hit the informer, police returned fire in self-defence, due to which, tyres of the car burst and stopped and accused was arrested—Arms, ammunition and 80 kilograms charas were recovered from secret cavities made in different parts of the car and inside the mudguards made with aluminium—Record showed that the FIR was filed promptly keeping in view the encounter, the need to take the injured to hospital, the time taken to search and weigh the drugs and as such any slight delay in lodging the FIR had been fully explained—Police had no time to cook up a false case against the accused who in any event was arrested on the spot by his own admission.

2022  MLD  796   KARACHI-HIGH-COURT-SINDH

AKHTAR ZARIN VS State

Ss.9(c) & 29—Possession of narcotics—Appreciation of evidence—Prosecution case was that 80 kilograms charas was recovered from secret cavities of the car of accused, made in different parts of the car and inside the mudguards made with aluminium—Record showed that car was recovered along with its key and the narcotics—Under S. 29 Control of Narcotic Substances Act, 1997, once the recovery had been proven as in the present case, the onus would shift to the accused to show his innocence in that at least he had no knowledge of the narcotics—Accused had not been able to do so in the case—Appeal against conviction was dismissed, in circumstances.

2022  MLD  735   KARACHI-HIGH-COURT-SINDH

MUHAMMAD SULEMAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, refusal of—Positive report of Chemical Examiner—Scope—Accused was alleged to have been found in possession of 1630 grams of charas and 940 grams of methamphetamine (Ice)—Narcotics were recovered in a considerable quantity and apparently no reason was available for falsely involving the accused in the case by the police—Narcotics were recovered on spy information and non-association of private witnesses was properly explained by the complainant in the FIR—No specific allegation of animosity was levelled against the raiding police party—Calendar of witnesses was short and all the witnesses were police officials, as such, there was likelihood of conclusion of trial without unnecessary delay—Recovered substances were sent to the Chemical Analyzer and a positive chemical examination report had been received—No case of bail was made out in favour of the accused—Petition for grant of bail was dismissed, in circumstances.

2022  MLD  724   KARACHI-HIGH-COURT-SINDH

ABDUL JABBAR VS State

S.9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.6—Possession of narcotics—Appreciation of evidence—Report of Government Analysts—Scope—Prosecution case was that 216 kilograms charas was recovered during search of secret cavity of roller loaded/lying over truck, being driven by accused—Complainant/Investigating Officer and recovery witness had implicated the accused to have been apprehended being in possession of 216 kilograms of charas—Evidence of said witnesses in respect of arrest and recovery of charas was consistent and confidence inspiring—No material contradiction in the depositions of said witnesses appeared, rendering the prosecution case as doubtful—Admittedly, none of the prosecution witnesses had any enmity with the accused nor was it suggested—Chemical Examiner’s report substantially and significantly met the rudiments of R.6 and Form-II of Control of Narcotic Substances (Government Analysts) Rules, 2001—Said report reflected that it borne reference of letter through which sample was deposited, date of receiving sample, name of official who deposited the sample, the condition of the seals on the packet, description of article in the parcel, total weight of each katta, net weight of slab of each katta, physical examination, resin test, microscopic examination and the result of the examination—Said Chemical Examiner’s report qualified the required standards and it was in consonance with Form-II of R.6 of the Rules—Circumstances established that prosecution had proved its case against the accused—Appeal against conviction was dismissed, in circumstances.

2022  MLD  724   KARACHI-HIGH-COURT-SINDH

ABDUL JABBAR VS State

Ss.9(c) & 29—Possession of narcotics—Appreciation of evidence—Burden of proof—Scope—Prosecution case was that 216 kilograms charas was recovered during search of secret cavity of roller loaded/lying over truck being driven by accused—Once the prosecution, prima facie established its case then under S.29 of the Control of Narcotic Substances Act, 1997, burden would shift upon the accused to prove contrary to the case of the prosecution and in the present case, the accused had failed to do so—Appeal against conviction was dismissed, in circumstances.

2022  MLD  520   KARACHI-HIGH-COURT-SINDH

AMJAD KHAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, grant of—Scope—Accused was alleged to have been found in possession of 2200 grams of contraband—Prosecution stated that Investigation Officer had retired and despite directions of the Court they were unable to identify the status of the cases against the accused, that too having been shown in the Criminal Record Office (CRO)—Challan had been submitted for more than a year, but no charge had been framed—Such grounds were enough to condemn the prosecution for its failure by granting bail to the accused—Accused could not be kept in jail, in petty cases, in which all the witnesses were police officials—Petition for grant of bail was allowed, in circumstances.

2022  MLD  469   KARACHI-HIGH-COURT-SINDH

ABDUL QADIR VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Possession of narcotics—Bail, grant of—Failure to frame charge—Completion of investigation—Further inquiry—Scope—Accused was allegedly found in possession of 680 grams of heroin—Accused was liable to be tried under S.9(b) of Control of Narcotic Substances Act, 1997, hence the case of accused became one of further enquiry falling within the purview of S.497(2), Cr.P.C.—Accused was behind the bars for last seven months and no progress was made in the trial, even charge was not framed as yet—Accused was no more required for further investigation—Accused had succeeded to make out a case for grant of post-arrest bail—Application for grant of bail was allowed, in circumstances.

2022  MLD  150   KARACHI-HIGH-COURT-SINDH

AYAZ alias COTTON SHAH VS State

S.9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Search to be made in presence of witnesses—Delay in sending sample to Chemical Examiner—Safe custody—Malkhana entry—Scope—Accused was convicted for having been found in possession of 1050 grams of charas—Place of receiving of spy information and that of incident were thickly populated areas, therefore, availability of independent persons could not be ruled out but the police party had not associated any independent person from such places to witness the event—Unexplained delay of two days in between the recovery of charas and receiving the same in the office of chemical analyzer for testing—No evidence was available on record to show that the charas was kept in safe custody from the time of its recovery until it was sent to and received in the office of Chemical Examiner—Mere production of entry of malkhana was not sufficient to testify as to safe custody and safe transit of the narcotic to the Chemical Examiner—Prosecution had failed to prove its case against the accused beyond a reasonable doubt—Appeal against conviction was allowed, in circumstances.

2022  YLRN  204   KARACHI-HIGH-COURT-SINDH

KHUDA BUX VS State

Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 21—Possession of narcotics—Bail refusal of—Power of entry, search, seizure and arrest without warrant—Search to be made in presence of witnesses—Scope—Accused was alleged to have been found in possession of 3340 grams of charas—Accused questioned his arrest by an ASI (Assistant Sub-Inspector) which according to him was in violation of S.21 of Control of Narcotic Substances Act, 1997—Since the recovery was made during routine patrolling, therefore, compliance of S.21 was out of question—Contention of accused was that the sample-bearer was not examined under S. 161, Cr.P.C. and that number of pieces of recovered charas were different in the FIR from those mentioned in the Chemical Examiner’s report—Such plea could not be considered at bail stage as the same would amount to deeper appreciation of evidence—So far as non-observance of the procedure laid down under S.103, Cr.P.C. was concerned, High Court observed that police officers were competent witnesses unless their competency was questionable due to some personal grudge or enmity—-Since no animosity was mentioned during the course of arguments with the raiding police party, therefore, it was hard to believe that such a huge quantity could be foisted upon the accused—Bail application was dismissed, in circumstances.

2022  YLRN  186   KARACHI-HIGH-COURT-SINDH

JAHANZEB KHAN VS State

1. 9(c)— Possession of narcotics—Appreciation of evidence—Liability of driver—Scope—Narcotics were recovered from the dikki of the car in which the accused was driving and as such there was no doubt that the accused had actual knowledge of the narcotics which were being transported—Car was recovered along with the narcotics—Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused—Revision was allowed and the sentence of accused was enhanced to imprisonment for life.

2022  YLRN  186   KARACHI-HIGH-COURT-SINDH

JAHANZEB KHAN VS State

1. 9(c)— Possession of narcotics—Appreciation of evidence—Prosecution case was that Anti Narcotics Force on spy information apprehended the accused persons while they were driving together in the car and as a result of the search thereof secured out of its trunk three nylon bags full of 50 packets of two slabs of charas of 1 Kg. each, thus totalling 150 Kgs—850 kilograms narcotics of like nature was recovered, on search of the house of the co-accused, thus second FIR was lodged—First Information Reports were lodged with promptitude giving no time for concoction and the S.161 statements of the witnesses were recorded promptly which were not significantly improved upon by any witness at the time of giving evidence—If the Anti Narcotics Force had wanted to falsely implicate the accused then there was no need to make a second recovery at a house as the police had already secured a very large recovery of narcotics from the car which the accused was driving and thus would not have bothered with taking the time and effort to stage a false recovery at a house—Accused was caught red handed with the narcotics by the police whilst driving the vehicle and even tried to flee the scene whose evidence fully corroborated each other in all material respects as well as the prosecution case—Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused—Revision was allowed and the sentence of accused was enhanced to imprisonment for life.

2022  YLRN  186   KARACHI-HIGH-COURT-SINDH

JAHANZEB KHAN VS State

1. 9(c)— Possession of narcotics—Appreciation of evidence—Prosecution case was that the Anti Narcotics Force on spy information, apprehended the accused persons while they were driving together in the car and as a result of the search thereof, secured out of its trunk three nylon bags full of 50 packets of two slabs of charas of 1 Kg. each, thus totalling 150 Kgs—850 kgs. of narcotics of like nature was recovered, on search of the house of the co-accused, thus second FIR was lodged—To foist such a large quantity of charas was not possible—Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused—Revision was allowed and the sentence of accused was enhanced to imprisonment for life.

2022  YLRN  186   KARACHI-HIGH-COURT-SINDH

JAHANZEB KHAN VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)—Possession of narcotics— Appreciation of evidence— Recovery proceedings— Sample analysis, delay in—Effect—Prosecution case was that the Anti Narcotics Force on spy information, apprehended the accused persons while they were driving together in the car and as a result of the search thereof secured out of its trunk three nylon bags full of 50 packets of two slabs of charas of 1 Kg. each, thus totalling 150 Kgs—850 kgs. narcotics of like nature was recovered, on search of the house of the co-accused, thus second FIR was lodged—Record showed that there was no delay in sending the chemical report for analysis which turned out to be positive—Recovered narcotics were kept in safe custody from the time of their recovery to the time when they were taken for chemical analysis—No suggestion of tampering with the same had even been made—Narcotics were sealed on the spot, remained sealed in the malkhana before being transported to the Chemical Examiner and reached the Chemical Examiner in a sealed condition as per the chemical report—Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused—Revision was allowed and sentence of accused was enhanced to imprisonment of life.

2022  YLRN  186   KARACHI-HIGH-COURT-SINDH

JAHANZEB KHAN VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotics—Appreciation of evidence—Non association of private witnesses—Scope— Prosecution case was that the Anti Narcotics Force on spy information apprehended the accused persons while they were driving together in the car and as a result of the search thereof secured out of its trunk three nylon bags full of 50 packets of two slabs of charas of 1 Kg. each, thus totalling 150 Kgs—On search of the house of the co-accused, 850 kilograms narcotics of like nature was recovered, thus second FIR was lodged—No independent mashir was associated with the arrest and recovery of the accused at his car, however, evidence showed that no private person was prepared to become an independent mashir at the time of arrest and recovery despite being asked—Even otherwise, S. 103, Cr.P.C., was excluded for offences falling under Control of Narcotic Substances Act, 1997, by virtue of S.25 of the Act—Lack of an independent mashir at the house when the narcotics were recovered on pointation was of no consequence—Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused—Revision was allowed and sentence of accused was enhanced to imprisonment for life.

2022  YLRN  186   KARACHI-HIGH-COURT-SINDH

JAHANZEB KHAN VS State

S.9(c)—Possession of narcotics—Appreciation of evidence—Complainant as Investigating Officer—Prosecution case was that Anti Narcotics Force on spy information, apprehended the accused persons while they were driving together in the car and as a result of the search thereof, secured out of its trunk three nylon bags full of 50 packets of two slabs of charas of 1 Kg. each, thus totalling 150 Kgs.—850 kilograms of narcotics of like nature was recovered, on search of the house of the co-accused—Defence objected that complainant was himself Investigating Officer—Validity—Evidence of a police witness was as reliable as any other witness provided that no enmity existed between them and the accused—No enmity had been suggested against any of the police witnesses and as such the police had no reason to implicate the accused in a false case—Police evidence was corroborative in all material respects, which included the accused being the driver of the car who attempted to escape from the scene when the car was stopped by the police and the recovery of the narcotics from the dikki of the car—Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused—Revision was allowed and the sentence of accused was enhanced to imprisonment for life.

2022  YLRN  176   KARACHI-HIGH-COURT-SINDH

SHAHID KHAN VS State

Ss. 6 & 9(c)—Transportation of narcotics—Appreciation of evidence— Prompt FIR—Scope—Accused was alleged to have been found transporting 20 kilograms of charas—FIR was lodged with promptitude giving no time for concoction and the S. 161, Cr.P.C. statements were recorded promptly which were not significantly improved upon by any of the prosecution witnesses—Arrest and recovery was made on the spot and the accused was caught red-handed with the narcotic by the police—Spy information about the rickshaw including its registration number and the route it would take fully corroborated the prosecution case—Narcotic was recovered from a concealed place in the rickshaw which the accused had revealed to the police and he was the only person in the rickshaw, as such there was no doubt that the accused had actual knowledge of the narcotic which was being transported—Recovered narcotic was kept in safe custody from the time of its recovery to the time when it was taken for chemical analysis and no suggestion of tampering with the same was ever made—All relevant police entries were duly exhibited—Prosecution had proved its case beyond a reasonable doubt against the accused—Appeal against conviction was dismissed, in circumstances.

2022  YLRN  164   KARACHI-HIGH-COURT-SINDH

The STATE/ANTI NARCOTIC FORCE  VS IMRAN AHMED

1. 9(c)—Criminal Procedure Code (V of 1898), S. 161—Possession of Narcotics—Appreciation of evidence—Appeal against acquittal—Delay of one year in recording the statements of witnesses—Scope—Prosecution case was that 38 kilograms of heroin powder concealed within eight wooden tables was recovered from the container of the accused persons—Record showed that it was an admitted fact that the Investigating Officer recorded S.161 Cr.P.C statements of witnesses after a delay of one year, which made the evidentiary value of the same worthless—Appeal was dismissed accordingly.

2022  YLRN  164   KARACHI-HIGH-COURT-SINDH

The STATE/ANTI NARCOTIC FORCE  VS IMRAN AHMED

1. 9(c)—Possession of Narcotics—Appreciation of evidence—Appeal against acquittal— Prosecution case was that 38 kilograms of heroin powder concealed within eight wooden tables was recovered from the container of the accused persons—Impugned judgment showed that the Trial Court had recorded the acquittal in favour of the accused/respondents with significant and sound reasoning—Accused/respondents, in order to prove their innocence, disclosed the name of absconding accused who was involved in the business of furniture and had named him as the culprit responsible for the recovery of the contraband— Accused/respondents were implicated on the basis of no direct evidence besides clearance services rendered to them—However, the prosecution witnesses at the same time deposed that commercial exporters, loaders and clearing agents had no role with the manufacture of furniture—No direct evidence was brought forth by the prosecution to establish the guilt of the accused/respondents especially when they were not arrested from the place of the incident—Investigating Officer failed to investigate absconder accused or try and apprehend him—No illegality or irregularity appeared to have been committed by the Trial Court while passing the impugned judgment which might warrant any interference by High Court—Appeal was dismissed accordingly.

2022  YLRN  153   KARACHI-HIGH-COURT-SINDH

SANOWAR ABBAS alias MUNAWAR ABBAS VS State

1. 9(c)— Possession of narcotics—Appreciation of evidence— Sentence, modification of—Prosecution case was that 1.0151 kilogram of heroin was recovered from the possession of the accused—Evidence of three prosecution witnesses was found to be reliable, trustworthy and confidence inspiring who arrested the accused on spot red handed with narcotic which led to a positive report after being kept in safe custody, as such, it was found that the prosecution had proved its case against the accused beyond a reasonable doubt—Trial Court had passed down the proper sentence with and conviction to the accused in accordance with the sentencing guidelines laid down by the superior Court based on the fact that the recovery was more than 01 kg of heroin but was less than 02 kgs—Sentencing guideline could be modified at the discretion of the Court provided that there were some special features which warranted such reduction in sentence—In the present case, numerous special features /mitigating factors were found which could justify a reduction in sentence which were; that the amount of recovered heroin was 1.015 kgs which was only marginally above the sentencing range—Accused was a first time offender—Accused was relatively young man and was capable of reformation—Accused was the sole breadwinner of his family, who relied on his income—Accused had fully accepted his guilt and as such had shown genuine remorse—Based on the said special features/mitigating factors, while maintaining the conviction of the accused, however, his sentence was reduced to three years and three months from six years and six months—Appeal was dismissed with said modification in sentence.

2022  YLRN  145   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AYAZ VS State

1. 9(c)— Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Possession of 116 kilograms of charas—Appreciation of evidence—Benefit of doubt—Chain of safe custody—Scope—Prosecution case was that the accused were found sitting in a car from the dickey of which, 116 kilograms of charas was recovered in the shape of slabs—Record reflected that just after completing the process of arrest and recovery, the raiding party directly approached the nearest ANF Police Station, where sufficient facilities for the safe custody of recovered narcotic were available—Prosecution witnesses stated that after recovery, they directly approached the ANF facility and after lodgement of FIR, the accused was locked up and the recovered narcotic was put in the possession of the incharge for keeping safe in the store-room—No reason existed to disbelieve the prosecution witnesses regarding that aspect of the case, as such the requisite formalities regarding the chain of safe custody envisaged under S.27 of the Control of Narcotic Substances Act, 1997, were fulfilled—Apparently, the chain of safe custody of recovered property along with representative samples from the point of recovery to the facility of ANF was fully established—Safe custody of the property and sample continued when they were handed over to the incharge of ANF store-room from where the samples were transmitted to the chemical laboratory and case property was produced safely before the Trial Court at the requisite time—Samples were received at the office of the Chemical Examiner in sealed condition, as such the continuity of chain of safe-custody of the sample from the point of recovery to the ultimate destination of the chemical laboratory was established—Chain of safe-custody was not questioned during the trial and even no question was put to any witness regarding that aspect of the case—Appeal against conviction was allowed to the extent of co-accused, in circumstances—Appeal to the extent of main accused was dismissed accordingly.

2022  YLRN  145   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AYAZ VS State

1. 9(c)—Possession of 116 kilograms of charas—Appreciation of evidence—Benefit of doubt—Prosecution case was that the accused were found sitting in a car from the dickey of which, 116 kilograms of charas was recovered in the shape of slabs—Prosecution had brought sufficient and un-shaky evidence to establish that from the car driven by accused total 116 kgs. of charas was recovered—Neither it was alleged nor the same was believable that such a huge quantity of the narcotics was foisted by the raiding party even on account of animosity—None of the accused had specifically alleged animosity with any of the members of the raiding party—Allegedly, the empty envelopes/casings of samples were not produced during the trial—Production of the empty envelopes/casings of samples were least necessary as the recovery of narcotic had already been established through the report of the chemical analyzer—Record transpired that the case of co-accused was distinguishable from the case of the main accused—Co-accused was neither the driver nor the owner of the vehicle which was employed for transportation of a huge quantity of recovered narcotic—Co-accused was only sitting in the car on the passenger seat—Prosecution could not bring evidence to establish that co-accused was the playmate of the main culprit in the entire episode—Co-accused was not relative to the main culprit, who was occupying the driving seat and driving the car at the time of interception by the raiding party—Prosecution could not effectuate or catalyze through some concrete material that the co-accused boarded in the vehicle from the same place and he was well aware that in the boot/dickey of the car some contraband articles were lying—Mere presence of a person in a vehicle wherefrom some narcotic was recovered would not be sufficient to hold the seater liable for such recoveries unless the prosecution established through reliable evidence about his conscious knowledge—Seater on the passenger seat could not be connected on the basis of possibilities or assumptions—Circumstances established that charge of having narcotic in the boot/dickey of the car was not established against the co-accused as no evidence was available on the record to justify the conscious knowledge of the co-accused—Prosecution had successfully brought the guilt of the accused at home—Appeal against conviction was allowed to the extent of co-accused, in circumstances—Appeal to the extent of main accused was dismissed accordingly.

2022  YLRN  141   KARACHI-HIGH-COURT-SINDH

Mst. FAUZIA VS State

S.9(c)—Possession of narcotics—Appreciation of evidence— Police witnesses—Safe custody—Complainant, acting as Investigating Officer—Previous convict—Scope—Accused, who had a past history of being a drug smuggler was alleged to have been found in possession of 12 kilograms of heroin and one kilogram of Ice—Accused was caught redhanded with the narcotics by the police officials whose evidence fully corroborated each other in all material respects—Fact that a lady was part of the police raiding party also corroborated the spy informer’s information that the person carrying the narcotics would be a lady with the same name as the accused—Recovered narcotics were kept in safe custody at the malkhana and were sent for chemical analysis without any delay and the chemical report was positive and it complied with all relevant legal requirements—No legal bar existed for the complainant also being the investigating officer of the case, as in the present case—Accused had a past history of being drug smuggler and a drug courier—Prosecution had proved its case beyond reasonable doubt and the defense put up by the accused was not believable—Appeal against conviction was dismissed, in circumstances.

2022  YLRN  140   KARACHI-HIGH-COURT-SINDH

GUL HASSAN VS State

1. 9(c)—Criminal Procedure Code (V of 1898), Ss. 221, 222 & 225—Possession of 2000 grams of heroin powder—Appreciation of evidence—Error in framing charge—Effect—Scope—Accused was found transporting two shopping bags each containing 1000 grams, total 2000 grams of heroin powder—Record showed that the accused was charged for transporting “200” grams of heroin powder—Failure of Trial Court in mentioning the actual weight of narcotic substance allegedly recovered from the possession of the accused could not be regarded as mere error or omission, as the same was not found sufficient to let the accused know the actual nature of accusation against him—Impugned judgment was set-aside only to the extent of the accused with direction to Trial Court to proceed with the case afresh/de novo in accordance with law—Appeal was disposed of accordingly.

2022  YLRN  128   KARACHI-HIGH-COURT-SINDH

NOOR AHMED VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 342—Possession of 50 maunds of cannabis grinds/poppy wing—Appreciation of evidence—Defence plea—Prosecution case was that 80 bags containing cannabis grinds/poppy wing 25 kgs. in each bag, totalling 50 maunds were recovered from a truck driven by the accused—Record showed that the defence could not substantiate plea of animosity with the raiding police party—Defence could not point out any convincing material, which might be attracted, that the raiding police party was motivated against the accused due to some personal grudge or they were instrumental of any third party having animosity with the accused—Accused had not raised such defence during his statement recorded under S.342 Cr.P.C.—Appeal against conviction was dismissed, in circumstances.

2022  YLRN  128   KARACHI-HIGH-COURT-SINDH

NOOR AHMED VS State

1. 9(c)—Possession of 50 maunds of cannabis grinds / poppy wing—Safe custody—Safe transmission—Chain of custody—Scope—Prosecution case was that 80 bags containing cannabis grinds/poppy wing, 25 kgs. in each bag, totalling 50 maunds were recovered from a truck driven by the accused—Chain of safe custody begun with the recovery of narcotics—Said fact included the separation of sample and sealing the same on the spot and it should remain continuous and intact till its dispatch to the Chemical Analyzer and received by him in the same sealed condition—Only break in the chain of custody or lapse in the control of the sample would impair the conclusiveness of the report of the Chemical Analyzer—In the present case, there was no break in the chain of safe custody from the recovery of narcotics to the deposit of malkhana of the concerned police station, which satisfied the requirement of law and the same remained undetached till receiving of the sample by the Chemical Analyzer—Circumstances established that there was no lapse in any manner regarding safe custody of the recovered contraband material—Appeal against conviction was dismissed, in circumstances.

2022  YLRN  128   KARACHI-HIGH-COURT-SINDH

NOOR AHMED VS State

1. 9(c)—Possession of 50 maunds of cannabis grinds/poppy wing—Report of Chemical Analyzer—Scope—Prosecution case was that 80 bags containing cannabis grinds/poppy wing, 25 kgs. in each bag, totaling 50 maunds were recovered from a truck driven by the accused—Report clearly indicated that the test performed was the resin test, which was usually done for identifying hashish i.e. charas for which complete details of the methodology were not necessary—Report of the Chemical Analyzer in the present case showed the number of samples and tests performed for identifying whether the sample contained Tetrahydrocannabinol (THC), which was the basic ingredient of all the natural forms of cannabis including hashish (charas)— Appeal against conviction was dismissed, in circumstances.

2022  YLRN  128   KARACHI-HIGH-COURT-SINDH

NOOR AHMED VS State

Ss. 9(c) & 27—Possession of 50 maunds of cannabis grinds/poppy wing—Appreciation of evidence—Safe custody—Scope—Prosecution case was that 80 bags containing cannabis grinds/poppy wing, 25 kgs. in each bag, totalling 50 maunds were recovered from a truck driven by the accused—Record showed that the complainant and investigator both had elaborated that the samples were timely sent for chemical analysis—Record showed that as soon as the recovery was effected and requisite formalities were completed on the spot, the case property and samples were immediately shifted to the police station having sufficient facilities for its safe custody—Appeal against conviction was dismissed, in circumstances.

2022  YLRN  116   KARACHI-HIGH-COURT-SINDH

LOUNG VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4—Criminal Procedure Code (V of 1898), S. 161—Possession of narcotics—Accused was found to be in possession of 1090 grams of charas—Dispatch of sample for tests or analysis—Examination of witnesses by police—Appreciation of evidence—Benefit of doubt—Statements of witnesses not taken down by Investigating Officer—Safe custody—Non-association of private witnesses—Non-examination of sample-bearer—Delay in dispatch of sample to the Chemical Examiner—Effect—Held, police ought to have associated independent person to witness the arrest and recovery, which was not done for no obvious reason—Complainant himself had conducted the investigation but admittedly statements under S.161, Cr.P.C. were recorded by a constable at his dictation—None of the statements contained a note that it was recorded by the constable—Charas was sent to the chemical examiner with a delay of four days for which no explanation was offered—Sample-bearer had delivered the charas with a further delay of three days and he was not even examined by the prosecution—Prosecution was not able to prove safe custody and transmission of charas to the chemical examiner beyond doubt—Appeal against conviction was allowed, in circumstances.

2022  YLRN  72   KARACHI-HIGH-COURT-SINDH

ABDUL QADIR VS State

9. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c), 14 & 15—Possession of narcotic drugs, prohibition on aiding, abetment or association in narcotic offences—Bail, grant of—Withholding best evidence—Scope—Prosecution case was that the accused booked the alleged parcel in a courier service containing 550000 tablets of diazepam weighing 9.270 kilograms, his copy of CNIC was attached with the parcel and on that basis he was charged with the offence punishable under S. 6 read with Ss. 9(c), 14 & 15 of Control of Narcotic Substances Act, 1997—Narcotic substance was not recovered from the immediate possession of the accused—CNIC of accused was used on the alleged cargo dispatch—Investigating officer was duty bound to have arranged identification of the accused through the witness who had allegedly seen him appearing in his office while booking the alleged parcel, which piece of evidence was withheld without assigning any reason—Accused had joined the investigation and nothing incriminating was secured from his possession—Petition for grant of bail was allowed, in circumstances.

2022  YLRN  64   KARACHI-HIGH-COURT-SINDH

State VS MUHAMMAD ASIM KHAN

1. 497(5)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Cancellation of bail, refusal of—Scope—Applicant sought cancellation of bail granted to the accused by the Trial Court—Allegation against accused was that at the time of his arrest 1000 grams of ‘methamphetamine’ was recovered from his possession—Prima facie no reasonable grounds existed for believing that the accused had committed the offence—Reasons for granting bail to the accused were sufficient / convincing and the Trial Court had recorded a speaking order—No exceptional circum-stances were pointed out by the applicant for cancellation of bail—Where bail was granted by lower court then strong and cogent reasons were required for its cancellation—Application for cancellation of bail was dismissed.

2022  YLRN  59   KARACHI-HIGH-COURT-SINDH

SAEEDULLAH VS State

1. 9(c)— Possession of narcotic substance—Appreciation of evidence—Benefit of doubt—Accused at the time of arrest was found in possession of motor cycle—Investigating Officer failed to ascertain ownership of the motorcycle—Motor cycle was hardly in working order and no key was recovered from accused—Fact gave weight that motor cycle was foisted on the accused—Investigating Officer deposed that accused had disclosed that heroin infact belonged to some other person—Investigating Officer made no attempt to interrogate/ investigate that said other person—Inspector had not mentioned in the departure entry of the Register that he had left the Police Station after receipt of spy information, stating as to where the accused was to be apprehended—Prosecution had failed to produce any evidence that informer gave information to high Police Officials frist—Held, prosecution story appeared to be unnatural and unbelievable—Prosecution had failed to prove its case against the accused beyond reasonable doubt—Appeal was allowed.

2022  YLRN  59   KARACHI-HIGH-COURT-SINDH

SAEEDULLAH VS State

1. 9(c)—Possession of narcotic substance—Appreciation of evidence—Private witness—Scope—Spy information–Inspector of Anti-Narcotic Force recovered heroin powder on spy information—Inspector of the Force had sufficient time to call private persons for making them as mashirs, he having failed to call private persons as mashirs, slight dent in the prosecution case was created.

2022  YLRN  59   KARACHI-HIGH-COURT-SINDH

SAEEDULLAH VS State

1. 9(c)—Possession of narcotic substance—Appreciation of evidence—Safe custody of narcotic—No evidence was available regarding safe custody of heroin powder whilst it was kept at malkhana of Police Station prior to sending the same to Chemical Examiner—Prosecution failed to examine Head Moharar, incharge of malkhana to prove its safe custody—Such fact, was potentially fatal to the prosecution.

2022  YLRN  46   KARACHI-HIGH-COURT-SINDH

HIDAYATULLAH alias GUDOO VS State

25. 9(c)—Police Rules, 1934, R. 25.2(3)— Possession of narcotic drugs—Appreciation of evidence—Benefit of doubt— Non-association of private persons despite availability—Effect—Delay in sending recovered material to the Chemical Examiner—Duty of Investigating Officer—Scope—Accused was charged for possession of 3000 grams of hashish—Police party had received spy information about the accused but it did not associate private persons to witness the recovery proceedings—Complainant admitted that caretaker of the graveyard and some visitors were present but he did not associate any of them to witness the recovery proceedings—Where recovery was made after prior information, even in the presence of private persons, then failure to secure independent witnesses could not be brushed aside lightly by the court—Three thousand grams of hashish was recovered from the accused but only 200 grams was sent to the Chemical Examiner for analysis, hence, it could not be said as to whether the remaining 2800 grams were hashish or not—Delay of four days in sending the recovered hashish to Chemical Examiner was not explained by the prosecution—Complainant of the case had acted as Investigating Officer—Complainant and Investigating Officer were two opposing parties; investigating officer was not required to establish the prosecution or complainant’s case but it was his duty to discover the real truth from the entire story of the complainant party—Appeal was allowed and the accused was acquitted from the charge, in circumstances.

2022  YLRN  37   KARACHI-HIGH-COURT-SINDH

State VS MUDASAR SHAH

1. 9(b)—Criminal Procedure Code (V of 1898), Ss. 417 & 265-K—Constitution of Pakistan, Art. 10-A—Possession of narcotics—Appeal against acquittal—Power of court to acquit accused at any stage— Remand—Requirements— Non-attendance of witnesses—Effect—Right to fair trial—Scope—Accused was alleged to have been in possession of 800 grams of garda charas—Trial Court acquitted the accused on the ground of non-availability of prosecution witnesses on number of dates fixed for hearing—Held; it was not a good ground to acquit the accused, but at the same time, it could not be ignored that prosecution was duty bound to produce their witnesses in time for an early disposal of the case, because the right of an accused to an expeditious and fair trial has been enshrined in the Constitution—-Accused had remained in jail for at least six months, as such, he had sufficiently been punished and had also faced the agony of protracted trial for about two and half years, but decision could not be made on merits—No fruitful purpose would be served if the case was remanded to the Trial Court, which would amount to abuse of process of law and torture the parties—Remand of case, not being a routine matter, should be adopted only when compelling circumstances existed—No compelling circumstances existed to remand the case—Appeal against acquittal was disposed of accordingly.

2022  YLRN  34   KARACHI-HIGH-COURT-SINDH

ALI SHER VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, refusal of—Scope—Accused was alleged to have been found in possession of 5 kilograms of charas—Entire substance recovered from the accused was sealed on the spot and was sent to the Chemical Examiner for its analysis—Report of Forensic Laboratory was in positive—No animosity or ill-will was alleged against the complainant—Mere sending the recovered substance to the Chemical Examiner with some delay was hardly a ground for grant of bail—Sufficient material was available against the accused showing his involvement in the subject case, falling within the prohibitory clause of S.497, Cr.P.C.—Accused had failed to make out his case for grant of bail—Bail application was dismissed, in circumstances.

2022  YLRN  5   KARACHI-HIGH-COURT-SINDH

AHSAN MARFANI VS State

1. 9(c)— Possession of twenty kilograms of charas—Appreciation of evidence— Benefit of doubt—Contradictions and infirmities in the prosecution case—Scope—Prosecution case was that twenty kilograms of charas was recovered from the possession of the accused—Description of the charas was not mentioned in the mashirnama of arrest and recovery to show and prove that the charas produced before the Chemical Analyzer and the court at the time of evidence was same and was recovered from the accused—Complainant admitted during his cross-examination, when the property was de-sealed before the court, that it was a fact that the slab of charas present in court had mono gram and such monogram was not mentioned in mashirnama, however, charas was available in carton—Prosecution case was that the property was sealed and was sent for chemical examination, however, in the report of Chemical Examiner it was mentioned that one sealed white cloth parcel was received, which also created doubt about the property as to whether the property received at the office of Chemical Examiner was same, which was allegedly recovered from the accused—Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt—Appeal against conviction was allowed, in circumstances.

2022  YLRN  5   KARACHI-HIGH-COURT-SINDH

AHSAN MARFANI VS State

1. 9(c)— Possession of twenty kilograms of charas—Appreciation of evidence—Benefit of doubt—Non-production of material witness—Scope—Prosecution case was that twenty kilograms of charas was recovered from the possession of the accused—In the present case W-Head Constable of police station was not examined during the investigation nor was examined during the trial to prove the safe custody of the charas for six days—Complainant deposed that he handed over the chars to W-Head Constable for keeping it in malkhana—Police Constable who deposited the property at the office of Chemical Examiner also deposed that Investigation Officer handed over the property to him while taking from W-Head Constable who took the property from the malkhana—Non-examination of said W-Head Constable in whose possession the property was for six days was fatal to the prosecution case and made it doubtful—Alleged recovery was sent to the Chemical Examiner with the delay of six days and the said delay had not been explained by the prosecution which too made the case doubtful—Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt—Appeal against conviction was allowed, in circumstances.

2022  YLRN  5   KARACHI-HIGH-COURT-SINDH

AHSAN MARFANI VS State

1. 9(c)—Possession of twenty kilograms of charas—Appreciation of evidence— Benefit of doubt—Contradictions in the statements of witnesses—Scope—Prosecution case was that twenty kilograms of charas was recovered from the possession of the accused—Record showed that the complainant and the witness/mashir gave their contradictory evidence on each aspect of the case including sealing of the alleged recovered charas, patrolling in the area before the recovery, inspection of the vehicles before the recovery, description of the recovered charas and the safe custody of the recovered charas, which made the entire case of prosecution doubtful—Complainant, in the end of FIR, had stated that he handed over the police papers to Sub-Inspector (SI), while said SI had stated in his examination-in-chief that he received the case papers not from complainant—Said contradictions clearly indicated that the complainant and mashir were not the true eye-witnesses of the incident and no such incident of arrest of accused and recovery of charas from the possession of accused had occurred—Witnesses contradicted each other on material aspects of the case, thus, no implicit reliance could be placed on the contradictory evidence of prosecution witnesses—Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt—Appeal against conviction was allowed, in circumstances.

2022  PCrLJN  117   KARACHI-HIGH-COURT-SINDH

ASAD KHAN alias KAREEM KHAN VS State

1. 9(c)— Possession of 200 kilograms charas— Appreciation of evidence—Prosecution case hinged upon statements of two witnesses who were Excise Officials—Excise officials were as good witnesses as any other and their evidence was subject to same standard of proof and principles of the scrutiny as applicable to any other category of witnesses—In absence of any animus, infirmity or flaw in their depositions, their testimony could be relied without demur.

2022  PCrLJN  117   KARACHI-HIGH-COURT-SINDH

ASAD KHAN alias KAREEM KHAN VS State

1. 9(c)— Possession of narcotic— Appreciation of evidence—Prosecution case was that 200 packets of charas wrapped in plastic cover, weighed and found to be of one kilogram each total 200 kilograms, were recovered from a truck driven by accused—Record reflected that separation of samples for chemical analysis, taken from each bundle, was found to be sufficient to constitute forensic proof—Accused was driving the truck at the relevant time, thus, Trial Court rightly held that he was responsible for transportation of narcotic—Report of Chemical Examiner corroborated the evidence of Excise Officials—Record transpired that the charas was recovered from the truck of accused and on the same day, samples were sent to Chemical Examiner—Chemical Examiner did not find any tampering with the sealed parcels, report was positive—Defence had not been able to point out any serious flaw or infirmity that might have been viewed as material or substantial in nature in the statements of the prosecution witnesses—Alleged discrepancy in the description of the contraband recovered, between mashirnama of recovery and Chemical Examiner’s report went unchallenged during the trial and as such the accused could not claim any benefit thereof in the absence of confrontation within the contemplation of Art. 140 of the Qanun-e-Shahadat, 1984—Defence objected that the evidence of witnesses was not reliable as the same suffered from material contradictions and inconsistencies—Such alleged contradictions in the testimony of witnesses that were being urged by the defence were minor in nature and would not be fatal to the case of prosecution—Huge quantity of 200 kilograms charas could not be foisted in routine—Prosecution had proved its case against the accused, in circumstances—Appeal against conviction was dismissed, in circumstances.

2022  PCrLJN  116   KARACHI-HIGH-COURT-SINDH

FAROOQ SHAH VS State

23. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)—Seizure of narcotic—Appreciation of evidence—Benefit of doubt—Chemical analysis—Delay in sending samples of contraband for analysis—Effect—Record showed that the alleged contraband was recovered on 23.9.2014, but the samples of the property were received in the office of Chemical Examiner on 26.9.2014 as was evident from the report of the Chemical Examiner—No explanation had been offered as to whether during the intervening period the contraband articles were placed in safe custody or not which made the same doubtful—Complainant/Investigating Officer in his evidence had stated that he had sent the samples of property to the Chemical Examiner through Excise Constable on the very same day but the same were not received by the Chemical Examiner and were returned back—Investigating Officer, thereafter, himself took the property and handed over to the Chemical Examiner on 26.09.2014—However, the Investigating Officer had failed to furnish any explanation or justification as to why consequent upon return of the samples by the Chemical Examiner on 23.9.2014, he did not take the same again on the same day or atleast on the next day and waited till 26.06.2016—Circumstances established that the prosecution had not succeeded in proving its case against the accused beyond shadow of reasonable doubt—Appeal against conviction was allowed, in circumstances.

2022  PCrLJN  116   KARACHI-HIGH-COURT-SINDH

FAROOQ SHAH VS State

1. 9(c)—Qanun-e-Shahadat (10 of 1984), Art.129(g)—Possession and trafficking narcotics—Withholding of best evidence—Effect—Prosecution case was that 100 bags of dodi sawdust, on weighing, each bag was found to be 30 kilograms, total 3000 kilograms in 100 bags, were recovered from the truck of the accused—Record showed that the Investigating Officer/complainant along with his subordinate staff left the narcotic circle on the date of incident in a private vehicle—Investigating Officer had admitted in his cross-examination that he had asked the driver of the said vehicle to act as mashir but he refused—Investigating Officer did not mention in the memo of recovery or in the FIR that driver of said vehicle refused to act as mashir—Investigating Officer had also not explained as to why on the refusal of the driver of the private vehicle to act as mashir, he did not take any coercive step although such option was available to him under the law—Investigating Officer also had not explained that during the long time of three hours, during which they were busy in completing the recovery proceedings, as to what step they took for procuring private mashirs of recovery from the vicinity—From attitude on the part of the Investigating Officer an inference under Art. 129(g) of the Qanun-e-Shahadat, 1984 could be drawn that in case any independent persons had been examined by the prosecution, he/they would not have supported the prosecution case—Appeal against conviction was allowed, in circumstances.

2022  PCrLJN  116   KARACHI-HIGH-COURT-SINDH

FAROOQ SHAH VS State

Ss. 9(c)— Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that 100 bags of dodi sawdust, on weighing, each bag was found to be 30 kilograms, total 3000 kilograms in 100 bags, were recovered from the truck of the accused—Ten grams of dodi sawdust was separated from each bag for sample—Chemical Examiner, on the basis of whose report the alleged contraband was claimed by the prosecution to be narcotic, had not been examined—Report of the Chemical Examiner was produced through the evidence of Investigating Officer, who was also complainant of the case—Report of the Chemical Examiner was silent in respect of the fact as to how much quality of liquor, whether Alkaloids or Morphine, was available in the powder—Besides, even according to chemical report the alleged contraband was a dried powder—No explanation was available in the report as to how the dried powder contained any liquidity of Alkaloids or Morphine—In absence of such fact in the Chemical Examiner’s report, it could not safely be declared that the said powder was a narcotic substance, thus falling under the definition of the Control of Narcotic Substance Act, 1997—Circumstances established that prosecution did not seem to have proved the allegations against the accused/appellant by producing unimpeachable evidence—Appeal against conviction was allowed, in circumstances.

2022  PCrLJN  109   KARACHI-HIGH-COURT-SINDH

RAHAMUDDIN BAREECH VS State

10. 9(c)—Possession of narcotics —Appreciation of evidence—Non-association of natural witnesses—Delay in sending recovered narcotic—Safe custody—Non-production of diary of deposited of case property in Malkhana—Effect—Investigating Officer of the case had stated that the case property was deposited in the Malkhana, however no such Malkhana entry was produced and the incharge of Malkhana was not produced as a witness nor any other person connected with the safe custody of the seized charas was produced—Police was acting on spy information, therefore, efforts should have been made to arrange mashir from the locality well in advance as the time of incident was about 10.00 a.m. which was a busy hour and people were available—Samples from the narcotic drugs were seized on 16.3.2017 but were sent to the laboratory on 20.3.2017—Codal formalities prescribed for dispatch of samples of seized drugs were not complied with which rendered the Chemical Examiner’s report doubtful—Appeal against conviction was allowed, in circumstances.

2022  PCrLJN  109   KARACHI-HIGH-COURT-SINDH

RAHAMUDDIN BAREECH VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that on spy information three accused persons were transporting charas in truck, complainant party (police) intercepted the said truck and arrested five persons and recovered 40 slabs of charas, weighing 20 kilograms from three persons—Two other persons, i.e. driver and the cleaner of the vehicle were also involved in the crime—Complainant alleged that the driver of the vehicle informed him that Rs. 30,000/- was being paid to him for each trip by the drug traffickers, however, said statement of the complainant did not find support from evidence on record—Complainant carried out the personal search of the three alleged narcotic sellers and a total sum of Rs. 2,500/- was recovered from their possession—According to the complainant (police official), nothing was recovered from the driver and cleaner of the vehicle, thus, there was nothing to prove that either Rs. 30,000/- were available with the three alleged narcotics sellers which were to be paid to the driver at the end of journey nor was there anything on record to show that the said amount was already paid to the driver and was available with him—Evidence on record did not support the statement of the complainant in any manner, whatsoever— Credibility of the complainant, in circumstances, was tarnished, particularly when all the witnesses in the case were Police Officials—Recovery was allegedly made from the laps of the three accused persons—In case the driver and cleaner were hand in glove with the alleged narcotic sellers, who were paying the driver a sum of Rs. 30,000/- per trip, then prudence demanded that the narcotics should have been hidden somewhere in the vehicle, otherwise, if a person was travelling as a passenger only he would have a fraction of the said amount of Rs. 30,000/- for his journey—Statement of complainant showed that there were groceries in the vehicle, if it was assumed that the contraband was hidden in the groceries, it would not have been so easy for the complainant to recover the same—In that case, it would have been proved that the driver and cleaner were also party to such illegal trafficking of the drugs—Complainant in his deposition stated that he personally searched all the five accused, and although some meagre amount was recovered from the accused, nothing was recovered from the driver and cleaner—Said single fact created a lot of doubt in the prosecution case—Record transpired that there was a contradiction with regard to packing of the recovered charas in the evidence of the prosecution witnesses—Investigating officer during cross-examination admitted that he did not inspect the place of wardat—Investigating Officer did not try to get information from the Police Lines, which was responsible for posting Police Officials at the post/place of occurrence—Circumstances suggested that the Investigating Officer failed to perform his duty—Failure of Investigating Officer to interrogate the Police Officials posted on the check post on the day of occurrence showed and proved that he did not perform his duty honestly as a professional which created a serious dent in the prosecution case as all the witnesses in the present case, were Police Officials and also subordinate to the complainant—No hindrance was in the way of the Investigating Officer to trace and record statement of any Police Official posted at check post on the said date, but he failed to do so—Circumstances established that prosecution had not succeeded in proving its case against the accused—Appeal against conviction was allowed, in circumstances.

2022  PCrLJN  102   KARACHI-HIGH-COURT-SINDH

Mst. SHAHZADI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Non-association of private witnesses—Delay in sending samples to the Chemical Examiner—Non-production of sample-bearer—Effect— Accused was alleged to have been found in possession of 2000 grams of charas—Charas was recovered from a road side, which was a busy place and at that place private and independent persons could have been arranged to witness the recovery—Sample was received in the office of Chemical Examiner with a delay of four days—Date of transmitting the sample was not mentioned in the report of Chemical Examiner—Official who had taken the sample to the examiner should have been produced before the Trial Court to clarify that the case property remained in safe custody during the period of 4 days—High Court observed that series of circumstances created doubts in the prosecution case and held that the findings and conclusions reached at by the Trial Court were not sustainable—Appeal was allowed, in circumstances.

2022  PCrLJN  91   KARACHI-HIGH-COURT-SINDH

MIR AFZAL VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Prosecution case was that 40 bundles of charas, weighing forty kilograms were recovered from the truck of the accused persons—Record showed that Investigating Officer had himself deposited the parcels in Chemical Examiner Office—Test performed on received items was sufficient to meet the statutory requirement—Statement of witnesses was recorded on the same day after lodging of the FIR—Undoubtedly, there was no inordinate or unexplained delay in sending the subject samples for chemical examination—Under the law 72 hours were required and the time as consumed by the Investigating Officer was within the frame of law—Chemical Examiner received 40 sealed “khaki’ envelope parcels with perfect seals as per copy sent and the result of the examination disclosed that some parcels contained charas rods whereas some parcels contained charas pieces—No minute let alone any material contradiction was noticed which might compel to interfere in the findings of the Trial Court while convicting the accused—Circumstances established that the prosecution had proved its case beyond reasonable doubt—Appeal against conviction was dismissed accordingly.

2022  PCrLJN  86   KARACHI-HIGH-COURT-SINDH

ASGHAR ALI VS State

Ss. 497& 103—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, grant of—Non-association of independent witnesses—Further inquiry—Scope—Accused was alleged to have been found in possession of 1500 grams of charas—Accused was alleged to have been selling charas at the pointed place; however, not a single person was found available around him to be presumed to be the purchaser/customer of contraband even no other person was produced or examined by the Investigating Officer through which it could be deduced that he had allegedly purchased it from the accused, which could substantiate the allegations levelled by the prosecution—Application of S. 103, Cr.P.C. was although ousted but when a police officer had advanced information then it was incumbent upon the police officer to associate some independent person to believe that the accused was captured by him from the scene of offence—Case against accused required further inquiry within the meaning of subsection (2) of S. 497, Cr.P.C.—Bail application was allowed, in circumstances.

2022  PCrLJN  52   KARACHI-HIGH-COURT-SINDH

KHAN AFZAL VS State

1. 9(c)—Possession of 20 kilograms of charas—Appreciation of evidence—Benefit of doubt—Safe custody—Scope—Prosecution case was that twenty packets of charas, each weighing one kilogram, was recovered from the trailer truck of the accused—Chain of custody remained shrouded in uncertainty as nothing was brought on record to show as to how the case property and samples were kept/handled prior to being sent to the Chemical Examiner—Even the official who supposedly conveyed the samples to the office of the Chemical Examiner was not called upon to depose in that regard—Chemical Examiner’s Report to have real probative value, the sanctity of the chain of custody was absolutely imperative—Prosecution had failed to establish the necessary links of the chain so as to demonstrate that after the alleged recovery, the substance so recovered was kept in safe custody and safely transmitted to the office of the Chemical Examiner without being tampered with or replaced while in transit, as was necessary to drive home the charge against the accused—While the samples drawn from each one kilogram packet were stated in the memo of arrest and seizure as well as the depositions of the prosecution witnesses to have been wrapped in white paper and then sealed while the Chemical Examiner’s Report showed that each of the white paper packets received to have contained four black brown coloured pieces, each wrapped in plastic—Under the circumstances, said discrepancy cast further doubt in the matter—Appeal against conviction was allowed, in circumstances.

2022  PCrLJN  30   KARACHI-HIGH-COURT-SINDH

MUHAMMAD YOUNIS VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 & 6—Possession and trafficking of narcotics—Appreciation of evidence—Benefit of doubt— Delay in sending the sample to the Analyst—Scope—Report of Government Analyst—Prosecution case was that 3006 grams of Charas was recovered from the accused—Report of Government Analyst could not qualify the term of conclusive proof of alleged recovered article as narcotic—Seal parcel number column was vacant in the report as well as in column of letter number crime number was shown, date was not given—Sample was sent with delay of three days—Prosecution had not succeeded in establishing safe transmit after three days by detailing safe custody thereof during such period—Legally the defective Chemical Report coupled with failure to establish safe transmit of sample/property was sufficient to record acquittal, however, the record also showed that prosecution case was that they caused raid at a gambling party which was a house and recovered a suspected shopper which was lying adjacent to the accused hence constructive possession was lacking in the case as well as prosecution had failed to substantiate that the place was owned by the accused—Prosecution case was not free from doubt—Appeal against conviction was allowed.

2022  PCrLJN  30   KARACHI-HIGH-COURT-SINDH

MUHAMMAD YOUNIS VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 & 6—Possession and trafficking of narcotics—Report of Government Analyst—Safe custody of recovered substance— Burden of proof—Scope—Report of Chemical Analysis could only determine status of sample hence burden to establish safe custody from time of its recovery till its receipt in the office of Chemical Analyzer was on the prosecution.

2022  PCrLJN  20   KARACHI-HIGH-COURT-SINDH

MUJEEB-UR-REHMAN VS State

2. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Safe custody of contraband and transmission of samples to the Chemical Examiner not established—Effect—Three packets of heroin weighing 2.5 kilograms were recovered from the bag allegedly belonging to accused while he was boarding flight—Safe custody of the narcotic from the time of its recovery to the time it was sent to the Chemical Examiner had not been proved as neither the person who kept the narcotic in the malkhana or a malkhana entry had been produced nor Police Constable who took the narcotic from the police station to the laboratory for testing had been examined, which was fatal to the prosecution case—Appeal against conviction was allowed, in circumstances.

2022  PCrLJN  20   KARACHI-HIGH-COURT-SINDH

MUJEEB-UR-REHMAN VS State

2. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Three packets of heroin weighing 2.5 kilograms were recovered from the bag allegedly belonging to accused while he was boarding flight—No witness gave the evidence that the accused checked in with the bag from which the narcotic was recovered—No CCTV footage had been produced in support of the allegation—Overwriting was found in the mashirnama of recovery concerning the documents to show that the bag belonged to the accused—Despite the airport being a busy place, no independent mashir was associated—Said infirmities in the prosecution case cast doubt on the same—Appeal against conviction was allowed, in circumstances.

2022  PCrLJN  20   KARACHI-HIGH-COURT-SINDH

MUJEEB-UR-REHMAN VS State

Ss. 9(c) & 36—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6— Possession of narcotics—Appreciation of evidence—Benefit of doubt— Report of Government Analysts—Failure of Analysts to apply test protocols— Effect—Three packets of heroin weighing 2.5 kilograms were recovered from the bag allegedly belonging to accused while he was boarding flight—Chemical report had not set out all the protocols of testing and what was the result of each protocol test as to whether it was positive or negative, rather one consolidated report had been prepared—Setting out each protocol test and its result was a mandatory requirement under the law, the absence of which would render the chemical report unsafe and unreliable especially—Chemical report went to the root of the case against the accused and as such reliance could not be placed on such report—Appeal against conviction was allowed, in circumstances.

2022  PCrLJN  16   KARACHI-HIGH-COURT-SINDH

DUR MUHAMMAD VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997 ), Ss. 6 & 9—Possession of 200 grams of heroin and 1700 grams of methamphetamine—Bail, refusal of—Petitioner, possessing narcotic substances, was arrested from airport while trying to go abroad—Petitioner contended that he was entitled to the concession of bail as in the wake of quantity and nature of the recovered contraband, lesser punishment would be awarded—Diamorphine (heroin) came under Narcotics Schedule-I of the United Nations Convention of Psychotropic Substances while methamphetamine came under Schedule-II of the said Convention—Petitioner being a first offender and having no previous record of involvement in narcotics trade or transport would make no difference—Complainant or any other member of the raiding party had no enmity with the accused—Question of sentence was to be considered at trial—Bail was refused to the petitioner, in circumstances.

2022  PLD  84   KARACHI-HIGH-COURT-SINDH

AKHTAR MEEN VS State

22. 9—Police Rules, 1934, Rs. 22.49 & 22.70—Possession of narcotics—Daily diary—Malkhana Register No. XIX—Scope—Merely mentioning in Register No. II (Daily Diary) that the case property was deposited in Malkhana is not proof of deposit of case property unless Incharge Malkhana or at least copy of Malkhana Register maintained under Rule 22.70 of the Police Rules, 1934, is produced.

2022  PLD  84   KARACHI-HIGH-COURT-SINDH

AKHTAR MEEN VS State

Ss. 7, 8, 9(c), 21 & 27—Criminal Procedure Code (V of 1898), S. 157—Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2009 (IX of 2010), S. 9—Police Rules, 1934, Rr. 24.5, 22.70 & 24.19—Constitution of Pakistan, Art. 4—Transportation of narcotics—Appreciation of evidence—Owner of vehicle, culpability of—Scope—Accused was alleged to have been apprehended while transporting 13 kilograms of charas—Only evidence available in the case was that of Investigating Officer and he had failed to produce the spy before the High Court despite being ordered—FIR was not registered by the SHO/Head Moharar of Excise Police Station—Nothing was mentioned about the proceedings required to be conducted by the S.H.O. under S. 157, Cr.P.C.—Perusal of challan revealed that it was submitted by the self-appointed Investigating Officer without the approval of his superior or District Public Prosecutor as required under S. 9 of the Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2009—Alleged recovered charas was never handed over by the Investigating Officer to the Incharge Malkhana—Investigating Officer had not seized the vehicle from which charas was recovered—Investigating Officer himself had disclosed name of the owner of vehicle in the challan but had not inquired from the owner that how and why his vehicle was found involved in an offence—Owner of the conveyance should have been included as co-accused for an offence under Ss. 7 & 8 of Control of Narcotic Substances Act, 1997—Investigating Officer after arresting the accused under S. 21 of Control of Narcotic Substances Act, 1997, ought to have dealt with him under S. 27 of Control of Narcotic Substances Act, 1997—Action taken by the Investigating Officer against the accused after his arrest and alleged seizure of charas while performing function under S. 21(1) of Control of Narcotic Substances Act, 1997, was illegal, void ab initio, without lawful authority and, therefore, the entire trial had vitiated—Director General of Excise and Taxation was directed by the High Court to take strict disciplinary action against the Investigating Officer for his failure to follow the basic criminal law—Appeal was allowed.

2022  PCrLJ  198   ISLAMABAD

ARSHAD alias GOGA VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 21—Possession of narcotics—Power to enter, search, seizure and arrest without warrant—Bail, grant of—Borderline case—Proceedings conducted by an Assistant Sub-Inspector—Non-availability of report of Forensic Laboratory—Scope—Accused was alleged to have been found in possession of 1285 grams of charas—Material investigation in the case regarding seizure, weighing, packing and sealing of charas into parcel, separation of some quantity of it for chemical analysis through Forensic Laboratory was carried out by an ASI (Assistant Sub-Inspector)—Contention of accused that the entire action taken by the ASI by way of registration of a case under the provisions of Control of Narcotic Substances Act, 1997 and its investigation by him from its inception to the end was violative of the law on the subject, seemed forceful—Report of Chemical Examiner was still awaited—Recovered substance had marginally exceeded 01 kilogram, so the accused was not likely to be awarded maximum sentence provided by the statute—Accused was  in jail and his trial was not likely to be concluded in near future—Petition for grant of bail was accepted, in circumstances.

2022  MLD  2071   ISLAMABAD

GULL MUHAMMAD VS State

S.9(c)—Possession of narcotics—Appreciation of evidence—Sentence, modification of—Accused was alleged to have been found in possession of 1220 grams of charas and 110 grams Crystal methamphetamine (ICE)—Prosecution case rested upon the statements of Investigating Officer and recovery witness—Both the witnesses were consistent on material particulars i.e. the venue, date and time of the raid, apprehension of the accused with contraband i.e. charas 1220 grams and ICE 110 grams, respectively, separation of 10-grams from the charas and 1-gram from ICE besides preparation of two sealed parcels and the other two parcels wherein remaining contraband were sealed—Safe custody and transmission of the sample in sealed parcels to the Office of Forensic Science Agency was established through the statements of Police Official and Moharrir Malkhana—Report of Forensic Science Agency confirmed that the sealed parcels said to contain suspected 01 gram of ICE and 10 grams of charas contained ICE and charas—Prosecution through consistent and unshaken statements of Investigating Officer and recovery witness had successfully proved the recovery of contraband i.e. 1220 grams charas and 110 grams ICE from the possession of the accused beyond any shadow of doubt—Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt—However, the sentence was reduced from imprisonment for five years and ten months to imprisonment for four years and six months—Appeal was dismissed with modification in sentence.

2022  MLD  2071   ISLAMABAD

GULL MUHAMMAD VS State

S.9(c)—Possession of narcotics—Appreciation of evidence—Sentence, quantum of—Accused was alleged to have been found in possession of 1220 grams of charas and 110 grams of ICE—Accused was convicted for the offence under S. 9(c) of the Act of 1997 and sentenced to imprisonment for four years and six months’ R.I with fine of Rs. 20,000/- and in default to further undergo S.I for nine months for having charas and on account of having ICE, to one year and four months’ R.I with fine of Rs. 11,000/- or in default to further undergo four months’ S.I—Section 9 of the Act of 1997 stipulated punishments for contravention of Ss. 6, 7 and 8 of the Act—Section 8 prohibited the trafficking or financing the trafficking of narcotic drugs while S.7 was with respect to import and export of narcotic drugs—Section 6 was in respect of prohibition of possession of narcotic drugs—In all the three sections, the nature of narcotic drugs had been mentioned as narcotic drugs, psychotropic substance and controlled substance—For contravention of having possession of any type of the narcotic drugs, punishment would be cumulative as there was no distinction of kind of narcotic drugs but for all kinds punishment was to be inflicted as provided in S. 9 of the Act—Consecutive punishments awarded to the accused were not legally sustainable as he had to be punished for recovery of 1330-grams of narcotic drugs in total and not separately for 1220 grams of charas and ICE 110 grams respectively as the Act did not provide separate sentence for separate kind  of narcotic drugs—While maintaining conviction under S.9(c) of the Act, the accused was sentenced to four years and six months R.I with fine of Rs.20,000/—-Appeal was dismissed with modification in sentence.

2022  MLD  905   ISLAMABAD

NOUMAN MUSHTAQ VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, grant of—Boarderline case—Non-availability of report of Forensic Laboratory—Further inquiry—Scope—Accused was alleged to have been found in possession of 1350 grams of charas—Quantity of 1350 grams charas, which was a borderline case and was marginally in excess of the quantity—Samples separated for analysis were sent to the Forensic Laboratory, report whereof was still awaited—Case of accused required further probe and fell within the ambit of subsection (2) of S. 497, Cr.P.C., which entitled him to the concession of bail—Petition for grant of bail was allowed.

2022  MLD  905   ISLAMABAD

NOUMAN MUSHTAQ VS State

S.9—Criminal Procedure Code (V of 1898), S. 497—Possession of narcotics—Bail—Non-availability of report of Forensic Laboratory—Scope—Non-availability of report of Forensic Laboratory in respect of narcotic substances allegedly recovered makes the case of the accused arguable for the purposes of bail.

2022  PCrLJN  64   ISLAMABAD

AASHIQ HUSSAIN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, grant of—Borderline case—Scope—Accused was arrested when he was found in possession of 1204 grams of heroin and recovery memo. was silent qua the net weight or gross weight of recovered contraband—Quantity of recovered contraband was closer to the borderline limit of subsections (9)(b) & (9)(c) of Control of Narcotic Substances Act, 1997—Accused was behind the bars since his date of arrest and incomplete challan had been submitted in the Court—Petition for grant of bail was allowed, in circumstances.

2022  PCrLJN  48   ISLAMABAD

REHMAT GUL VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4—Possession of narcotics—Dispatch of sample for test or analysis—Bail, grant of—Borderline case—Non-availability of report of Chemical Examiner—Further inquiry—Scope—Accused was alleged to have been found in possession of 1110 grams of heroin—Alleged narcotic substance was packed in a brown packet being carried in a plastic shopping bag, it could not be determined with certainty at this stage as to whether stated weight included the weight of the bags and whether in view of the quantity of the narcotic substance recovered, the case fell within the scope of S. 9(b) or 9(c) of Control of Narcotic Substances Act, 1997—Samples from the alleged narcotics substance recovered from the accused were not sent for chemical analysis within the prescribed period of seventy two hours and such delay was also considered a ground for further inquiry—As the report of the Chemical Examiner was still pending, it could not be determined beyond reasonable doubt that the substance recovered from the accused was indeed a narcotic substance—Nothing was available on record to suggest that the accused, who had no previous criminal record, could abscond or tamper with the evidence if released on bail—Investigation was complete and the accused was in judicial custody, keeping him incarcerated would not serve the ends of justice—Petition for grant of bail was allowed, in circumstances.

2022  PCrLJN  48   ISLAMABAD

REHMAT GUL VS State

1997. 9— Possession of narcotics— Borderline case— Scope— Benefit of doubt is ordinarily given to the accused in borderline cases that may fall either in S. 9(b) or 9(c) of Control of Narcotic Substances Act, 1997.

2022  YLR  422   Gilgit-Baltistan Chief Court

HADI UR REHMAN VS State

Ss.9 (c) & 36—Recovery of narcotic substance—Appreciation of evidence—Chemical analysis—Delay in sending samples— Quantity of narcotics—Determination—Charas (Gardah) weighing 3500 grams was alleged to have been recovered from accused—Trial Court convicted accused and sentenced him to imprisonment for five years—Validity—Four packets of Charas weighing 875 grams each were alleged to have been recovered from possession of accused—Packets were sent to Chemical Examiner after an unexplained delay of about one month and nine days—Chemical Examiner did not state in his report that from total 3500 grams of Charas (Gardah) how much Charas in purified condition could have been extracted—Such lapse on the part of Chemical Examiner could not be ignored lightly and benefit of such doubt was to be given to accused as a matter of right—High Court maintained conviction awarded to accused by Trial Court but sentence was reduced from five years to two years imprisonment—Appeal was dismissed accordingly.

2021  SCMR  1773   SUPREME-COURT

AIJAZ ALI RAJPAR VS State

1. 9(c)—Possession and transportation of 1920 grams of cannabis—Reappraisal of evidence—Accused relied upon a habeas corpus petition filed by his brother against the local police to raise the plea of his false implication in the case—Such petition had been dismissed by the court as a bailiff/Raid Commissioner deputed by the Court reported the accusation as factually incorrect—Accused did not opt to enter the witness box to disprove the charge against him—Furthermore considerable quantity of the contraband recovered from the accused ruled out false imposition—Both the recovery witnesses were not alleged to have any past animosity with the accused—Witnesses remained straightforward and consistent during their cross-examination—Safe custody and transmission of samples was established by the record and forensic report of the samples was positive—Preponderance of prosecution evidence, constituted a continuous chain of events that framed the accused with the charge—Trial Court, after twice appraising the evidence found the witnesses in a unison, which view was confirmed by the High Court—Petition for leave to appeal was dismissed, leave was refused and conviction and sentence of accused were maintained.

2021  SCMR  1771   SUPREME-COURT

NASEEM KHAN VS State

Ss. 9(b) & 9(c)—Possession and transportation of 3 kilograms of cannabis—Reappraisal of evidence—Sentence, reduction in—Single consolidated sample from all packets sent for forensics—Prosecution’s claim of possession of 3 kgs of cannabis wrapped in three different packets notwithstanding, the forensic report unambiguously refered to receipt of single sample of 5 grams—Prosecution’s reliance upon a single consolidated sample instead of dispatching three separate samples from each bag brought accused’s case within the purview of S. 9(b) of the Control of Narcotic Substances Act, 1997, and, thus, a corresponding reduction in his sentence was most conscionable in circumstances—Furthermore accused was in his youth with no past history to his discredit—Accused’s sentence was reduced from 3 years rigorous imprisonment to that already undergone by him with reduction in fine to Rs.5000—Petition for leave to appeal was converted into appeal and partly allowed accordingly.

2021  SCMR  1552   SUPREME-COURT

State VS AURANGZEB

Ss. 9(a) & 9(c)—Constitution of Pakistan, Art. 185(3)—Possession of 18.6 kilograms of methamphetamine comprised of 34000 tablets—Petition for leave to appeal challenging conversion of conviction from S. 9(c) to S. 9(a) of Control of Narcotic Substances Act, 1997 and resulting reduction in sentence and fine—Contentions on behalf of prosecution that the High Court by considering the samples sent for forensic analysis as deficient in terms of the law declared in the case reported as Ameer Zaib v. The State (PLD 2012 SC 380) had misdirected itself by applying the principle laid down in the said case in disregard to the nature, shape and format of the contraband recovered, which was uniquely integrated into small tablet form, incapable of traditional sampling suggested in the said case; that the Control of Narcotic Substances Act, 1997 covered a wide range of “narcotic drugs, psychotropic substances or controlled substances” manufactured, marketed and administered through various mediums other than usual chunks of shaped pieces and, thus, in the peculiar circumstances of the present case, dispatch of 34 tablets (as samples), from each lot, squarely constituted representative samples, leaving no space for a contra hypothesis; that any other interpretation or approach would defeat the legislative intent—Supreme Court granted leave to consider the said contentions of the prosecution.

2021  SCMR  1443   SUPREME-COURT

State VS KHURSHID KHAN

1. 9(b)—Possession of cannabis found in a vehicle—Petition for leave to appeal challenging acquittal—Conflicting statements of official witnesses—One of the official witnesses while sticking to his case for a while, did provide a space for exit to the accused by stating that “it is correct that no paper or chit are recovered from the Gatrhi (packing) or from the physical search of the accused facing trial to show that the narcotics belonged to the accused”; in the next breath, he, however, volunteered that “the accused himself admitted the ownership of the said Gatrhi”—Same witness also stated that “it is correct that the Gatrhi was not lying in the lap of the accused nor he was holding it in his hand at that time” — Another official witness stated that “it is correct that no narcotic was recovered from the accused from his body search”—Driver of the cab, from wherein the accused was apprehended, appeared in the witness-box to support the accused and categorically denied, on oath, the seizure of any contraband, which foreclosed all options for the High Court to maintain the conviction of accused—High Court had rightly acquitted the accused—Petition for leave to appeal was dismissed and leave was refused.

2021  SCMR  1212   SUPREME-COURT

NOOR KHAN VS State

Ss. 9(c) & 51—Possession of 1320 grams of cannabis—Bail, refusal of—Accused was caught red-handed with considerable quantity of contraband, which squarely brought his case within the remit of ‘Prohibition, contemplated by S. 51 of the Control of Narcotic Substances Act, 1997—Claim of false implication raised by the accused was an issue that could not be attended without going beyond the barriers of tentative assessment, an exercise prohibited by law (during bail stage)—Petition for leave to appeal was dismissed and accused was refused bail.

2021  SCMR  1106   SUPREME-COURT

HAROON-UR-RASHEED  VS State

1. 9(c)— Possession and transportation of 10 kilograms of cannabis—Reappraisal of evidence—Sentence, reduction in—Witnesses were in substantial unison with each other on all the details of the episode—Joint arrest of the accused persons with the vehicle they were travelling in and seizure of contraband therefrom were circumstances heavily looming over their culpability—Forensic report substantially detailed the procedure adopted by the analyst to undertake the analysis, unambiguously confirming the narcotic character of the contraband, a conclusion that went unrebutted/unchallenged during the trial—With accused persons belonging from different backgrounds, the only common ground for their convergence was their illicit pursuit, which by itself confirmed a collaboration for a purpose far from being usual or just—In the totality of circumstances, accused persons had been rightly convicted under S. 9(c) of the Control of Narcotic Substances Act, 1997, however, saddling each accused distinctly with different quantities of the contraband, ranging from 2 to 5 k.g., the case set up by the prosecution itself, spelt out a makeshift union instead of a concerted joint detour, therefore, the sentences of accused persons were to be moulded proportionately—Consequently, while maintaining their conviction, sentences awarded to accused persons were reduced from 10 years imprisonment to a period of 5 years with a corresponding reduction in the fine from Rs. 100,000/ each to Rs.50,000/- each with 6-months simple imprisonment in the event of default—Petitions for leave to appeal were converted into appeals and partly allowed accordingly.

2021  SCMR  799   SUPREME-COURT

ZAINAB VS State

6. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of 6.250 kg of charas—Petition for post-arrest bail—DNA test of suckling baby—Accused lady contended that she was arrested with a two years suckling baby, therefore, she be enlarged on bail—Held, that the question of hizanat would come under consideration for grant of bail, therefore, before proceeding further, the DNA test of the child must be carried out, so as to ascertain her age and relationship with the accused—Case was adjourned till DNA report was received.

2021  SCMR  531   SUPREME-COURT

ZULFIQAR alias ZULFA VS State

1. 9(c)—Possession of narcotics—Police witnesses—Scope—Police officials were also competent witnesses and their testimony could not be discarded merely for the reasons that they are employees of police force.

2021  SCMR  531   SUPREME-COURT

ZULFIQAR alias ZULFA VS State

Ss. 2(t) & 9(c)—Possession of 15 kilograms of poast/opium—Reappraisal of evidence— Sentence, reduction in— Mitigating circumstances—Opium as a narcotic—Definition and nature—As per definition of opium in S. 2(t) of the Control of Narcotic Substances Act, 1997 (‘the 1997 Act’) after mowing, all parts of the poppy plant except seeds were considered to be poppy straw—Only the basket, sack or pouch also known as ‘Doda’, excluding the seeds, contained narcotic substance—All poppy straw may not necessarily be `poast/doda because poppy straw could be any other part of the mowed poppy plant as well, excluding the seeds—Poppy straw was derived from the plant ‘papaver somniferum’, which had been cultivated in many countries for centuries; it had medicinal impact as well, which was largely used as a tonic for wellness of nervous system—Purpose of its cultivation was actually the production of poppy seeds, which were used as a food stuff and as a raw material for manufacturing poppy-seed oil, which was used for making various varnishes, paints and soaps etc.—Question was as to what actually was recovered from the accused in the present case; was it only the doda/basket/pouch or was it the whole plant with stems and flowers—Nothing in evidence was available on record in regard to such aspect, which absence was to be considered as a mitigating circumstance (in relation to sentence of accused)—Accused was behind bars for the last more than 13 years and his remaining sentence was less than two years—Conviction of accused under S. 9(c) of the 1997 Act was maintained, however his sentence was reduced from imprisonment for life into what he had already undergone—Jail petition was converted into appeal and partly allowed accordingly.

2021  SCMR  522   SUPREME-COURT

Mian KHALID PERVIZ VS State

1. 9(c)—Possession and transportation of 12 kilograms of charas—Reappraisal of evidence—Accused in his defence contended that a day before the FIR was lodged against him, Anti-Narcotics Force (ANF) officials abducted him and an Inspector demanded illegal gratification of Rs.05 million; that on the same day there was dacoity/robbery of different articles including prize bonds from his house, whereafter he was allegedly taken/shifted to police station along with his vehicle, which contained narcotics hidden in secret cavities—Held, that after perusal of record it was not understandable as to why the accused was chosen for alleged abduction at daytime, followed by the alleged raid, dacoity/robbery and demand of illegal gratification and that too in the month of Holy Ramadan—Besides no separate report was lodged in the police station for such wrongdoings of the ANF—Brother of the accused claimed to be present at the time of alleged abduction of the accused, but he moved an application to the concerned SHO/Police Station to trace the location of mobile phones and the vehicle of the accused, about twelve days after his alleged abduction; this appeared to be an attempt of maneuvering evidence in defence as it was hard to believe that for about twelve days the accused’s family or his brother were unaware of the recovery of narcotics from the accused—Accused also alleged that at the time of his abduction his son and driver were also with him, however both of them were not produced in defence—Investigating Officer of the case during personal search of the accused had also recovered fake service cards and stamps—Officer of the vehicle tracking company, who appeared as a defence witness in court, produced map of movement history of the vehicle of the accused comprising three sheets (to establish his alleged abduction) but the map available on the paper book consisted of five sheets without exhibit mark—Court could not rely on or consider such documents which were not part of the record—Defence evidence led by the accused was not of such credence and trustworthiness that it could shatter the confidence inspiring evidence of prosecution—Appeal was dismissed and conviction and sentence recorded against accused were maintained.

2021  SCMR  522   SUPREME-COURT

Mian KHALID PERVIZ VS State

1. 9(c)—Qanun-e-Shahadat (10 of 1984), Art. 164—Possession and transportation of narcotics—Reappraisal of evidence—Call Detail Record (CDR) data—Evidentiary value and admissibility—Mere production of CDR data without transcripts of the calls or end to end audio recording could not be considered/used as evidence worth reliance—Besides the call transcripts, it should also be established on the record that callers on both the ends were the same persons whose calls data was being used in evidence—While considering such type of evidence extra care was required to be taken by the Courts as advancement of science and technology had also made it very convenient and easy to edit and make changes of one’s choice—Appeal was dismissed and conviction and sentence recorded against accused were maintained.

2021  SCMR  522   SUPREME-COURT

Mian KHALID PERVIZ VS State

1. 9(c)—Qanun-e-Shahadat (10 of 1984), Arts. 46-A, 78-A & 164—Electronic Transactions Ordinance (LI of 2002), Preamble—Possession and transportation of narcotics— Reappraisal of evidence—Documentary evidence in defence recorded by automated information system—Admissibility—Such evidence was admissible under Art. 164 of the Qanun-e-Shahadat, 1984 but in case of denial, law required that such evidence generated through the automated system must be proved in accordance with law—Courts had been empowered to receive and make use of such evidence collected through modern technologies—Articles 46-A & 78-A of the Qanun-e-Shahadat, 1984 as well as the provisions of Electronic Transactions Ordinance, 2002 provided procedure to receive and prove such evidence—Appeal was dismissed and convictions and sentence recorded against accused were maintained.

2021  SCMR  492   SUPREME-COURT

ZUBAIR KHAN VS State

1. 9(c)—Possession and transportation of 80 kilograms of charas—Reappraisal of evidence—Safe custody and transmission of samples of the narcotic from the police to the chemical examiner not established—Duplicate forensic report presented—Held, that the prosecution failed to establish the essential link of safe transmission of samples to the office of Chemical Examiner as despite opportunity the relevant official, who had delivered the samples, failed to enter the witness box—Furthermore the prosecution relied on a duplicate forensic report, which was inadmissible in evidence, to confirm narcotic character of the contraband—Supreme Court observed that such appalling inaptitude of the functionaries tasked to prosecute the crime, left no juridical possibility to maintain accused’s conviction—Petition for leave to appeal was converted into appeal and allowed and the accused was acquitted of the charge.

2021  SCMR  460   SUPREME-COURT

BILAL KHAN VS State

Ss. 9(c) & 51—Possession and transportation of 1200 grams of amphetamine—Bail, refusal of—Accused was arrested red-handed with a considerable quantity of lethal contraband, which was confirmed by a positive forensic report—Case of accused fell within the remit of ‘prohibition’, contemplated by S. 51 of the Control of Narcotic Substances Act, 1997—Claim of false implication raised by the accused was an issue that could not be attended without going beyond the scope of tentative assessment, which was not allowed by law (at bail stage)—Petition for leave to appeal was dismissed and accused was refused bail.

2021  SCMR  451   SUPREME-COURT

Mst. SAKINA RAMZAN VS State

Rr. 4, 5 & 6—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Report of Chemical Examiner—Safe custody and transmission of samples of the narcotic from the police to the chemical examiner—Scope—Chain of custody or safe custody and safe transmission of narcotic drug began 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—Such chain of custody must be safe and secure, because, the Report of the Chemical Examiner enjoyed critical importance under the Control of Narcotic Substances Act, 1997 and the chain of custody ensured that correct representative samples reached 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 made the Report of the Chemical Examiner unsafe and unreliable for justifying conviction of the accused—Prosecution, therefore, had to establish that the chain of custody had been unbroken and was safe, secure and indisputable in order to be able to place reliance on the Report of the Chemical Examiner.

2021  SCMR  451   SUPREME-COURT

Mst. SAKINA RAMZAN VS State

1. 9(c)—Possession and transportation of 45 kilograms of charas—Reappraisal of evidence—Safe custody and transmission of samples of the narcotic from the warehouse to the chemical examiner not established—Held, that the letter of the Superintendent Preventive Service written to the Chemical Examiner stated that 43 sealed samples were being forwarded to the chemical examiner—Author of said letter was not produced as a witness—In the absence of the statement of the warehouse in-charge and the statement on behalf of the complainant (the official who recovered the narcotics),regarding the delivery of the samples of the narcotic drugs to the office of the chemical examiner, it could not be ascertained whether the narcotic drugs and the representative samples were deposited in the warehouse by the complainant; when and who collected the representative samples from the warehouse; and who delivered them by hand to the office of the Chemical Examiner—Such facts revealed that the chain of custody had been compromised and was no more safe and secure, therefore, reliance could not be placed on the Report of the Chemical Examiner to support conviction of the accused—Conviction and sentence recorded against the accused-lady were set aside in circumstances and she was acquitted of the charge—Appeal was allowed.

2021  SCMR  380   SUPREME-COURT

GULZAR VS State

1. 9(c)—Possession of cannabis—Reappraisal of evidence—Failure to establish safe transmission of samples to the office of the Chemical Examiner—Recovery of narcotic substance was denied by the accused throughout—Prosecution’s failure to establish safe transmission (of samples) to the office of Chemical Examiner had its consequences since the narcotic character of the contraband was not established as the relevant police official, examined while standing with the Public Prosecutor, did not utter a single word to prove transmission of the entire cache, purportedly transmitted by him to the office of Chemical Examiner—In absence of safe transmission of the samples, the accused could not be saddled with the culpability of possession of narcotic without being conjectural—Appeal was allowed and accused was acquitted of the charge.

2021  SCMR  373   SUPREME-COURT

SHAH NAWAZ KHAN VS State

1. 9(c)— Possession and transportation of 12070 grams of cannabis—Reappraisal of evidence—Even if accused’s confession purportedly recorded by his own choice when he was already remitted into judicial custody, was excluded from consideration, the prosecution still possessed overwhelming evidence to establish his exclusive culpability, beyond doubt; he was not only on the driving seat but also owned the vehicle that carried huge cache of contraband, concealed in a secret cavity thereof; seizure of cash of Rs.152,000/- vide inventory added to the credibility of operation carried out by the functionaries seemingly with no axe to grind—Testimony furnished by police officials did not suffer from any flaw or infirmity; both of them comfortably faced cross-examination—Safe custody of the contraband and transmission of samples to the office of Chemical Examiner was established from the record—Acquittal of co-accused, indicted on the basis of accused’s confession as an unsuspecting carrier, did not bring him any benefit in retrospect—Conviction and sentence recorded against the accused by courts below, being well within the remit of law, did not call for interference. Appeal against conviction was dismissed.

2021  SCMR  363   SUPREME-COURT

QAISER KHAN VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 4, 5 & 6—Possession of narcotics—Report of Government analyst—Safe custody and transmission of samples of the narcotic from the police to the chemical examiner—Scope—If safe custody of narcotics and its transmission through safe hands was not established on the record, same could not be used against the accused—In the present case, evidence regarding safe transmission of alleged recovered narcotics to the police station and then onto the laboratory for chemical analysis was missing—Accused was acquitted of the charge in such circumstances.

2021  SCMR  324   SUPREME-COURT

ATIF-UR-REHMAN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 15—Possession and trafficking of narcotics—Bail, grant of—Further inquiry—Nothing was recovered from the vehicle duly driven by the accused—According to the prosecution the accused pointed out another truck from where certain narcotics were recovered and three persons were arrested—In the FIR it was indicated that the ANF officials were already in the knowledge of the narcotics in the said truck, therefore, any new fact was not discovered on the pointation of the accused—As far as applicability of S. 15 of the Control of Narcotic Substances Act, 1997 was concerned, the trial Court, after recording of evidence, would determine as to whether the said offence was attracted or not—Case of the accused called for further inquiry falling under subsection (2) of S. 497, Cr.P.C.—Petition for leave to appeal was converted into appeal and allowed and accused was released on bail.

2021  SCMR  198   SUPREME-COURT

SHABBIR HUSSAIN VS State

15. 9(c)—Possession of narcotic—Reappraisal of evidence—Absence of any apparent reason to falsely implicate the accused for possession of 15.6 kg of narcotic, negated the hypothesis of fake imposition—Methodology adopted by accused of transporting drugs while travelling with wife and children was not unusual in drug trafficking cases—Presence of a lady constable who frisked and arrested the wife/co-accused went a long way to support the prosecution case—Inspector and lady constable (official witnesses) furnished details of the arrest and recovery; their statements were in a comfortable and confident unison on all the salient aspects of the raid as well as details collateral therewith—Prosecution had proved its case against the accused beyond reasonable doubt—Petition for leave to appeal was dismissed and leave was refused.

2021  SCMR  198   SUPREME-COURT

SHABBIR HUSSAIN VS State

Ss. 9(c) & 25—Possession of narcotic—Reappraisal of evidence—Non-association of witnesses from the public—Supreme Court observed that absence of a witness from the public, despite possible availability was not a new phenomenon; it was reminiscent of a long drawn apathy depicting public reluctance to come forward in assistance of law, due to exasperating legal procedures and lack of witness protection—In such circumstances, evidence of official witnesses was the only available option to combat the menace of drug trafficking with the assistance of functionaries of the State; their evidence, if found confidence inspiring, may implicitly be relied upon without hesitation, as their status as witnesses was second to none.

2021  SCMR  128   SUPREME-COURT

IBRAR ULLAH VS State

1. 9(c)—Possession of 3500 grams of cannibas—Reappraisal of evidence—Admittedly, the accused was a resident of city ‘P’; he had apparently no business to be present in city ‘R’, wherefrom he was unanticipatedly apprehended by a police picket—Similarly, it was difficult to contemplate his substitution to swap the real offender as the volume of cache being substantial could not be conceivably planted in the absence of a strong motive that did not appear in the present case—Official witnesses were found in a comfortable unison on all the relevant details relating to the arrest, search and recovery—Presence of a police picket at the spot had not been disputed by the defence itself—Forensic report contained relevant details of the procedure followed by the analyst to confirm the narcotic character of the contraband—Conviction and sentence recorded against the accused by courts below were well within the remit of law—Petition for leave to appeal was dismissed and leave was refused.

2021  SCMR  128   SUPREME-COURT

IBRAR ULLAH VS State

Ss. 9 & 25—Possession of narcotic—Public witnesses—Official witnesses—Absence of a witness from the public to support the prosecution case despite availability, was symptomatic of public apathy towards civic responsibilities—Such absence did not by itself shadow upon the credibility of official witnesses, who were second to none in status.

2021  SCMR  109   SUPREME-COURT

Mst. SUGHRAN  VS State

1. 9(c)— Possession of cannabis— Reappraisal of evidence—Sentence, reduction in— Sentence reduced to period already undergone—Contraband attributed by the prosecution to the accused-lady, being not in excess of 10-kg, brought her case out of the barriers of statutory sealing of lowest mandated sentence and, thus, for reasons valid and just, her plea for reduction of sentence could be entertained—Status of the accused as a hapless carrier of the cannabis had not seriously been controverted by the prosecution—No material/circumstance was found on record to view the accused or co-accused (since deceased) as being privy at the helm of the consignment; they seemed to be abandoned by those who ensnared them into the trap—According to the report submitted by the jail authorities, the accused, as on 23-10-2020, had served out a period well exceeding six years and was scheduled to be released on 18-12-2022—Substantial period of sentence already served out, and death of identically placed co-accused in the prison, were factors that taken into consideration together, cumulatively made out a case to reduce the sentence of accused to the period already undergone—With such modification in sentence, appeal was partially allowed.

2021  SCMR  2005   SUPREME-COURT

SHAFA ULLAH KHAN VS State

1. 6—Control of Narcotic Substances Act (XXV of 1997), S. 9(c) —Criminal Procedure Code (V of 1898), S. 510, proviso—Possession of narcotics— Report of Government Analyst—Protocols/procedure used—Non-mentioning of the detail of the protocols—Effect—In the present case in the report of Forensic Science Agency (FSA), the details of the protocol were not mentioned, however the test applied, protocol and result of the test had been mentioned—If there was any ambiguity in such a report the same may (also) be resolved by the trial court by exercising its powers under proviso to S. 510, Cr.P.C.—No ambiguity was found in the FSA’s report and there was no infirmity in the impugned judgment and the conclusion drawn by the courts below regarding guilt of the accused—Appeal was dismissed.

2021  SCMR  2005   SUPREME-COURT

SHAFA ULLAH KHAN VS State

1. 9(c)—Possession of 2880 grams of charas and 270 grams of heroin—Reappraisal of evidence—Accused was apprehended red-handed and the narcotics were recovered from his exclusive possession—Recovery witnesses and the complainant, who were police officials, remained consistent on the point that it was accused in whose exclusive possession the narcotic was recovered—Both the witnesses had no animosity against the accused and they remained firm during cross-examination; they had no reason to falsely implicate the accused, and both the courts below found their testimonies to be reliable and truthful—Recovered narcotics were sent to the Forensic Science Agency (FSA) and Agency tested positive through its report—Safe transmission of the narcotics to FSA was also established by the prosecution by producing Moharrar whereas complainant himself took the parcel from the Moharrar and transmitted it to the FSA—Case property was exhibited in the court—Prosecution proved its case against the accused through trustworthy evidence and other circumstances of the case—Appeal was dismissed.

2021  SCMR  1804   SUPREME-COURT

GUL MANAN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession and trafficking of narcotics—Bail, grant of—Further inquiry—Conscious knowledge of narcotics—When the vehicle was stopped by the police, the accused was merely sitting in the vehicle and he was not driving it—Narcotics were allegedly recovered from the secret cavities of the vehicle—No connection was found between the said vehicle and the accused and nothing was recovered either form possession of accused or on his pointation—Question as to whether the accused, who was not the driver of the vehicle, had conscious knowledge of the narcotics concealed in the vehicle needed serious consideration, which shall be determined by the Trial Court after recording evidence—In the circumstances, case against the accused called for further inquiry falling within the ambit of S. 497(2), Cr.P.C.—Petition for leave to appeal was converted into appeal and allowed, and accused was allowed bail.

2021  SCMR  1795   SUPREME-COURT

FAHEEMULLAH VS State

1. 9(c)—Possession and transportation of 5080 grams of cannabis—Reappraisal of evidence—Accused was apprehended during a routine patrol and his arrest along with contraband were incorporated in the daily diary, entry whereof, was placed on record—Site plan and inspection note also coincided with the details, elaborated in the crime report; these were also consistent with the investigative details—Preponderance of prosecution evidence comprising safe custody of contraband, transmission of sample to the office of chemical examiner with a positive report supported by a unison account furnished by the official witnesses remained unscathed during cross-examination—Prosecution evidence was sufficient to successfully constitute “proof beyond doubt”—Petition for leave to appeal was dismissed and conviction and sentence imposed upon the accused were maintained.

2021  YLR  690   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD SULTAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Transportation of narcotics—Bail, refusal of—Second bail application—Fresh grounds, non-availability of—Effect—Accused was apprehended while transporting 4000 grams of charas—High Court had already rejected the bail application of accused on merits—Instant application was filed by the accused after 1 month and 20 days of the rejection of his earlier bail application—No fresh ground was available to the accused to file the instant application—Petition was dismissed, in circumstances.

2021  YLR  457   QUETTA-HIGH-COURT-BALOCHISTAN

NASAR UD DIN VS State

Ss. 9(c) & 36—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.5 & 6—Possession of narcotics—Report of Government Analysts—Failure of Analysts to mention full protocols of tests applied—Effect—Prosecution case was that on spy information, police intercepted the vehicle of accused and recovered sixty seven packets of charas, weighing eighty kilograms from its secret cavities—First Information Report as well as the memorandum of recovery showed that a consolidated sample of 670 grams had been separated from the 67 packets taken into possession—No separate samples had been secured and tested vis-a-vis the substance, contained in each packet—Consolidated sample of 670 grams of recovered substance was then tested positively by the Chemical Examiner—Samples had to be secured from every bag or packet of narcotic substance recovered in a case and each such sample was to be separately tested by the Chemical Examiner—Report of Forensic Science Laboratory did not purport the necessary protocol, as such could not be termed to be conclusive proof that the recovered substance was charas—Prosecution had failed to establish the safe custody of the recovered substance during trial, while not producing mohorrir of the Levies Station—Even safe transmission of the samples of the recovered substance from the local Levies Station to the office of the Chemical Examiner had not been proved by the prosecution—Prosecution case was that the narcotic substance in the present case recovered from secret cavities of the vehicle, which was allegedly driven by the accused, as such, it was incumbent upon the prosecution to establish the presence of such cavities, but no such evidence worth its name had been brought on record in that respect—Recovery witness had admitted the absence of secret cavities in the body of vehicle during the course of cross-examination—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was allowed, in circumstances.

2021  PCrLJ  261   QUETTA-HIGH-COURT-BALOCHISTAN

BILAL AHMED VS State

S.173—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Report of police officer—Discharge of accused—Scope—Petitioners assailed the order passed by Magistrate whereby the accused was discharged from the charges after the Investigating Officer had found him innocent—Accused was alleged to have been found in possession of 60 kilograms of charas and 20 kilograms of opium—Report of Investigating Officer revealed that the signature of first witness of recovery memo were not available on the recovery memo; that the said witness had also denied recovery of contraband in his presence; that the earlier Investigating Officer of the case had stated that he was neither appointed as the Investigating Officer nor had he gone to the place of occurrence; that neither the contraband was sealed nor any parcel was made and it was found to be laying open in the police station and that one of the petitioner had arranged the charas and opium just to save himself and others from the consequences of the FIR which was registered against them under Ss. 365-A, 342, 416 & 34, P.P.C., by the brother of accused—Two of the petitioners were DSPs and one of them was SP at CID police station at the relevant time and after departmental inquiry they were dismissed from service on the basis of said allegations—No illegality or irregularity was committed by the Magistrate in discharging the accused—Petition was dismissed, in circumstances.

2021  MLD  1381   QUETTA-HIGH-COURT-BALOCHISTAN

State VS Syed AMIR MUHAMMAD

Ss.497(5)& 103—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 25—Application for cancellation of bail—Possession of narcotics—Non-association of private witnesses—Scope—Prosecution sought cancellation of bail granted to accused by the Trial Court—Accused was alleged to have been found in possession of 4 kilograms of ice (drug)—Non-association of private witnesses could not be made a basis for granting post-arrest bail to an accused as S.25 of the Control of Narcotic Substances Act, 1997, excluded application of S.103, Cr.P.C., in narcotic cases—Trial Court had wrongly made deeper appreciation of evidence at bail stage, which was not permissible rather tentative assessment of the material collected by the prosecution had to be made at bail stage—Order granting post-arrest bail to the accused could not sustain—Application for cancellation of bail was allowed, in circumstances.

2021  MLD  1168   QUETTA-HIGH-COURT-BALOCHISTAN

ALI BAKHSH VS State

S.9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5—Possession of forty kilograms of charas—Appreciation of evidence—Delay in sending samples of contraband for chemical analysis—Effect—In the present case, alleged recovery was effected on 09.11.2019, whereas the sample parcel was sent to the Chemical Examiner on 11.12.2019—However, the delay was explained by the Investigating Officer and he stated in his statement that on 10.11.2019 he wrote a letter to the high-ups of the police department for permission for sending the case property to Chemical Examiner’s report, meaning thereby that the Investigating Officer had taken the initiative on the very next day of recovery from the accused for depositing the case property to the office of the Chemical Examiner—Even otherwise, there was nothing on record to establish that the said parcel was even tampered with, instead the evidence led by the prosecution established that the parcel received by the agency remained intact—Circumstances established that prosecution had proved its case against the accused beyond any shadow of doubt—Appeal against conviction was dismissed, in circumstances.

2021  MLD  1168   QUETTA-HIGH-COURT-BALOCHISTAN

ALI BAKHSH VS State

S.9(c)—Possession of forty kilograms of charas—Appreciation of evidence—Prosecution case was that on spy information vehicle driven by accused was checked and 40 packets of charas were recovered from secret cavities of the vehicle, each packet weighing one kilogram, total 40 kilograms—Prosecution produced recovery witness and complainant to prove the charge—Said witnesses remained consistent and firm regarding the recovery effected from the accused, they were tested through lengthy cross-examination but their evidence could not be shattered—Apparently, sufficient evidence was available on record to prove the guilt of the accused and he being a driver of the vehicle was in charge of the vehicle and his culpability was established beyond the shadow of doubt—Accused had taken the stance in his statement recorded under S.342, Cr.P.C, that he was innocent and had falsely been involved into the case due to exchange of hot words with the SHO, but despite that he neither opted to record his statement under S.340(2), Cr.P.C, nor any evidence was produced by him in his defence—Mere bald and general assertions were not sufficient to discard the overwhelming prosecution evidence—Accused was admittedly driving the car from which the alleged narcotic was recovered—Accused being the driver was well within the knowledge about the concealment of narcotic in the vehicle—Police Officials were competent witnesses, and their evidence could not be discarded only for the reason that they were Police Officials—Police Officials had furnished straightforward and confidence inspiring evidence—Circumstances established that prosecution had proved its case against the accused beyond any shadow of doubt—Appeal against conviction was dismissed, in circumstances.

2021  MLD  922   QUETTA-HIGH-COURT-BALOCHISTAN

Syed LAL SHAH VS State

1. 9(c)—Possession of two kilogram of charas—Appreciation of evidence—Benefit of doubt—Delay of about seventy days in sending the sample for analysis—Effect—Prosecution case was that on spy information accused was stopped and on search two packets of baked charas weighing two kilograms were recovered from his Nefa—Investigating Officer deposed that during investigation the alleged samples were sent to Forensic Science Laboratory for analysis—Witness produced Forensic Science Laboratory Report, which revealed that sample were received to Forensic Science Laboratory after seventy days, with the memorandum, however, Investigating Officer stated that he sent the alleged material to Forensic Science Laboratory, meaning thereby that he himself had not dispatched the material to Forensic Science Laboratory—Material was received at Forensic Science Laboratory after more than seventy days without any explanation that during intervening period the alleged material was in whose custody/possession—Circumstances established that the prosecution had failed to prove the case against the accused beyond reasonable doubt—Appeal against conviction was allowed, in circumstances.

2021  MLD  922   QUETTA-HIGH-COURT-BALOCHISTAN

Syed LAL SHAH VS State

S.9(c)—Possession of two kilogram of charas—Appreciation of evidence—Benefit of doubt—Contradictions in the statement of witnesses—Scope—Prosecution case was that on spy information accused was stopped and on search two packets of baked charas weighing two kilograms were recovered from his Nefa—Ocular account of the incident had been furnished by two witnesses i.e. Sub-Inspector and a Constable—Witness/Sub-Inspector in his deposition stated that two packets of baked charas weighing two kilograms were recovered from the Nefa of accused—Said witness in his cross-examination stated that he searched one or two motorcycles—Accused did not try to run away—Said witness admitted that FIR had been registered in respect of recovered motorcycle against the accused—Other witness/Constable / recovery witness stated that they were on routine patrolling—Informer informed the witness/Sub-Inspector and they proceeded towards Naka—Said witness in cross-examination stated that they proceeded from Thana at 8:00 or 8:30 a.m. and reached at Naka at 9:00 or 9:15 a.m. and they searched 15/20 vehicles, simultaneously stated that they only searched one or two motorcycles—Said discrepancies and contradictions in the statements of said two witnesses could not be lightly ignored—Circumstances established that the prosecution had failed to prove the case against the accused beyond reasonable doubt—Appeal against conviction was allowed, in circumstances.

2021  MLD  553   QUETTA-HIGH-COURT-BALOCHISTAN

RAHIM BAKHSH VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9—Possession of narcotics—Bail, refusal of—Scope—Accused was alleged to have been found in possession of two kilograms of charas while 200 grams of charas was also recovered from right side of his pocket—High Court observed that where the quantity of 400/500 grams marginally exceeded the upper limit of 1000 grams, being borderline cases between Cls. (b) & (c) of S.9 of Control of Narcotic Substances Act, 1997, the accused persons were admitted to bail; however, in the present case, besides recovery of 2000 grams of charas 26 grams of crystal was also recovered from the personal possession of accused, thus, it was not a case of borderline—Petition for grant of bail was dismissed, in circumstances.

2021  YLR  2273   PESHAWAR-HIGH-COURT

ZIA ULLAH VS State

1. 9(c)—Possession of Narcotics—Appreciation of evidence—Prosecution case was that two plastic sacks, one containing 11 packets of heroin, each packet weighing 1025 grams and another sack containing 16 packets of heroin, each weighing 1535 grams were recovered from secret cavities of oil tanker driven by accused, while co-accused was sitting thereon—Four witnesses were produced and examined in support of the prosecution case—Seizing Officer and recovery witness had been subjected to taxing cross-examination, but nothing beneficial to defence could be extracted from them rather they remained stuck to their stance and corroborated each other on all material aspects of the occurrence such as the day, date, time and place of arrest of the accused and recovery of contraband from the Oil Tanker in the mode and manner as alleged in the FIR—Positive Forensic Science Laboratory Report qua the samples further supplemented the prosecution case—Prosecution had also proved the chain of circumstances under which the samples were sent to the Forensic Science Laboratory right from the spot till its receipt in the Forensic Science Laboratory—Defence failed to point out any discrepancy in the testimony of the witnesses—Incriminating statements of the prosecution witnesses recorded on oath were enough to prove recovery of huge quantity of heroin from secret cavity of the Oil Tanker which was in exclusive possession and control of accused—Shred of evidence had not been brought by the defence to show any enmity of the witnesses with the accused—Circumstances established that the prosecution had succeeded in proving its case against the accused beyond any shadow of doubt—Appeal against conviction was dismissed, in circumstances—Prosecution witnesses had admitted in their statements that nothing incriminating was recovered from personal possession of co-accused and that he was sitting in front seat of the vehicle—No evidence had been brought on record by the prosecution to establish that co-accused was in conscious knowledge of the concealed narcotics in Oil Tanker or that he was dealing in the business of narcotics—Nothing in black & white was available on file to show previous involvement or conviction of co-accused in such like cases—Co-accused was acquitted, in circumstances.

2021  YLR  1613   PESHAWAR-HIGH-COURT

AYAZ alias IMRAN VS State

1. 6—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of charas—Appreciation of evidence—Report of Government Analyst—Protocols/procedure— Scope— In the present case the Forensic Science Laboratory Report did not signify the test protocols that were applied to carry out the test, therefore, the mandatory requirement of law provided by R. 6 had not been complied with in its letter and spirit—Non-compliance of the said Rule would render the said report in conclusive, suspicious and untrustworthy—Said report could not be relied upon qua maintaining the conviction and sentence of the accused, in circumstances—Prosecution had failed to prove its case against the accused beyond reasonable doubt—Appeal against conviction was allowed, in circumstances.

2021  YLR  1613   PESHAWAR-HIGH-COURT

AYAZ alias IMRAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Contradictions in the statements of witnesses—Scope—Prosecution case was that six kilograms of charas were recovered from the vehicle of the accused—Complainant stated that nothing was handed over to the Investigating Officer when he came to the spot for investigation—Said fact had been contradicted by recovery witness in his cross-examination by admitting that when the Investigating Officer came to the spot, case property was present on the spot—Case property including the vehicle was delivered to the Investigating Officer on the spot—Admittedly, nothing had been recovered from the accused like Driving Licence or any other document which suggested that he was driver of the said vehicle—Even route permit of the vehicle had not been obtained as to whether the said vehicle had any permission to ply on “P” to “C” road or not—Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt—Appeal against conviction was allowed, in circumstances.

2021  YLR  1613   PESHAWAR-HIGH-COURT

AYAZ alias IMRAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that six kilograms of charas were recovered from the vehicle of the accused—Complainant stated that his personal monogram had an inscription of MK—No explanation was offered as to why the parcels did not contain the monogram of Seizing Officer, as such it had created a serious doubt regarding the seizer of contraband—Complainant admitted in his cross-examination that he kept 1/1 monogram inside each parcel—Said witness stated that if the case property had no monogram inside the parcel the same would have not been sealed by him at the spot—Fact of placing 1/1 sample monogram MK inside the parcel was also admitted by recovery witness in his cross-examination, however, when the Trial Court de-sealed the case property on the request of defence, there was no sample monogram inside the parcel—Held, in circumstances, it could not be concluded that the case property produced before the Trial Court was the same which was recovered from the vehicle—Circumstances established that the prosecution had miserably failed to prove its case against the accused beyond reasonable doubt—Appeal against conviction was allowed, in circumstances.

2021  YLR  1584   PESHAWAR-HIGH-COURT

SHAH NARAZ VS State

5. 9(c)—Criminal Procedure Code (V of 1898), S. 164—Possession of twenty two kilograms of charas and 200 grams of gardah charas—Appreciation of evidence—Confessional statement of accused—Scope—Prosecution case was that twenty two kilograms of charas and 200 grams of gardah charas concealed in the CNG cylinder fixed in the trunk of the motorcar of accused was recovered—Accused after his arrest was produced before the Judicial Magistrate, where he confessed his guilt and explained as to how he came into possession of the contraband and he also named the other accused as the owner and himself attained the status of a carrier—Judicial Magistrate was examined, who was thoroughly cross-examined, but nothing detrimental to the case of the prosecution was brought on record—Judicial Magistrate stated that the convict/ accused was produced before him and sufficient time was provided to him to think over again and again and after fulfilling the legal formalities his statement was recorded—Accused was produced on 05.04.2016 before the Judicial Magistrate, where he opted to confess and so his confession was recorded—Judicial Magistrate while recording the confession of the accused had followed the procedure and also put the needed questions and it was then he got satisfied and recorded the statement—Circumstances established that the prosecution had proved its case against the accused—Appeal against conviction was dismissed accordingly.

2021  YLR  1584   PESHAWAR-HIGH-COURT

SHAH NARAZ VS State

1. 9(c)—Possession of twenty two kilograms of Charas and 200 grams of gardah charas— Appreciation of evidence—Prosecution case was that twenty two kilograms and 200 grams of gardahcharas concealed in the CNG cylinder fixed in the trunk of the motorcar of accused was recovered—Accused was arrested on the spot and huge quantity of narcotic was recovered from his motorcar on his pointation—Test samples were dispatched to the office of Chemical Examiner for analysis wherefrom a positive report was received—Prosecution produced as many as 12 witnesses and all the witnesses remained consistent on material aspects of the case—Motorcar was taken into possession and no rival claimant turned up to claim its ownership and even the accused could not disassociate himself from the car in question—Witnesses were put to lengthy cross-examination but nothing favourable could be extracted from their mouth to favour the accused—Record was silent as to mala fide of persons who arrested and effected the recovery—Quantity recovered was huge and there was no reason that witnesses were so interested that the contraband was planted against the accused to implicate him in the case—Nothing on record that either the Investigating Officer or the Seizing Officer had any personal grudge with the accused, which could result in planting the narcotic against the convict/accused—Mode and manner of arrest had left no room to disbelieve the prosecution—Seizing and Investigating Officer were thoroughly cross-examined regarding the recovery, its weighment and dispatch to the office of Chemical Examiner, but nothing was brought which could discredit those witnesses, as they went coherent and consistent—Circumstances established that the prosecution had proved its case against the accused—Appeal against conviction was dismissed accordingly.

2021  YLR  1584   PESHAWAR-HIGH-COURT

SHAH NARAZ VS State

2. 9(c)—Possession of twenty two kilograms of charas and 200 grams of gardah charas—Appreciation of evidence—Delay of about two days in sending the samples for analysis—Effect—Prosecution case was that twenty two kilograms and 200 grams of gardah charas concealed in the CNG cylinder fixed in the trunk of the motorcar of accused was recovered—In the present case, recovery was effected on 02.04.2016 whereas the test samples were received by the Laboratory on 04.04.2016, which excluded the possibility of tempering with the parcels while in transit—No mala fide was suggested to the witness who took the samples to the Laboratory for its chemical analysis and even his veracity was not questioned—Circumstances established that the prosecution had proved its case against the accused—Appeal against conviction was dismissed accordingly.

2021  YLR  1584   PESHAWAR-HIGH-COURT

SHAH NARAZ VS State

Ss. 9(c) & 29—Criminal Procedure Code (V of 1898), S. 103—Possession of twenty two kilograms of charas 200 grams of gardah charas—Appreciation of evidence—Association of private witnesses— Scope— Prosecution case was that twenty two kilograms and 200 grams of gardahcharas concealed in the CNG cylinder fixed in the trunk of the motorcar of accused was recovered—Allegedly, as no private witness was associated with the process of recovery and that even the Investigating Officer did not record the statement of the informer, thus, the recovery was effected in utter disregard of law—Section 29 of the Control of Narcotic Substances Act, 1997, had done away with such formalities—Circumstances established that the prosecution had proved its case against the accused—Appeal against conviction was dismissed accordingly.

2021  YLR  1120   PESHAWAR-HIGH-COURT

State VS IMRAN

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)—Seizure of narcotic—Appreciation of evidence—Appeal against acquittal—Benefit of doubt—Chemical analysis—Delay in sending samples of contraband for analysis—Effect—Record showed that the test samples were received by the laboratory after a considerable delay of 10-days—Investigating Officer was questioned time and again regarding the remaining case property and its safe custody, who initially stated that he did not know that where the same was lying but later on stated that it was lying in the custody of the Moharrir of the concerned Police Station—Admittedly neither the statement of the Moharrir was recorded nor an abstract from Register No.19 was collected and placed on the record—Circumstances suggested that dispatch of the test samples from the Police Station to the Forensic Sciences Laboratory had not been established in the way and in the manner as was commanded by the law—Forensic Science Laboratory Report so collected, therefore, could not be accepted and relied upon—Prosecution failed to prove its case against the accused, in circumstances—Appeal against acquittal was dismissed accordingly.

2021  YLR  1120   PESHAWAR-HIGH-COURT

State VS IMRAN

1. 9(c)—Possession of 18200 grams of charas—Appreciation of evidence—Appeal against acquittal—Benefit of doubt—Prosecution case was that 18200 grams charas was recovered from a gas cylinder fixed in the dickey of a motorcar, driven by accused—Complainant stated that after receiving information he along with six others reached to the spot a little early and found the car coming with enormous speed—Said vehicle was signalled to stop but it went ahead with accelerated speed and was chased through his Alto Suzuki car—Statement of the complainant was a little disturbing as to how an Alto motorcar could accommodate seven police officials duly armed with weapons including complainant and that when the motorcar was signalled to stop and it did not, how in the shortest span of time all the seven boarded the motorcar and chased the vehicle containing narcotic—If the testimony of the complainant was accepted to be correct then it could be presumed that either the accused was not present in the motorcar or he was not in the knowledge regarding the narcotic—Complainant further stated that on their arrival near the motorcar he recovered the narcotics from the gas cylinder fitted in the dickey—Said fact added a little doubt as to how without the pointation of the accused the complainant went straightaway to the dickey and recovered the narcotic without searching rest of the motorcar—Circumstances established that the prosecution failed to prove its case against the accused—Appeal against acquittal was dismissed accordingly.

2021  YLR  1120   PESHAWAR-HIGH-COURT

State VS IMRAN

1. 9(c)—Possession of 18200 grams of charas—Appreciation of evidence—Appeal against acquittal—Contradictions in the statements of witnesses—Scope—Prosecution case was that 18200 grams of charas was recovered from a gas cylinder fixed in the dickey of a motorcar driven by accused—In the present case, the complainant stated that the gas cylinder was removed by all seven police officials and was placed on the ground where after with the help of instruments i.e. screw driver it was opened and the recoveries were effected—Other police witness stated that when he reached near the motorcar he found the gas cylinder intact in the dickey and without dislodging it the recovery was effected—Complainant stated that the weighment was made with the help of a digital scale lying in his motorcar, whereas the Investigating Officer stated that he himself made the weighment with the help of a manual scale by using different bots—Prosecution case ran with abnormalities that despite the fact the police officials were armed with sophisticated weapons but they did not resort even to ariel firing to compel the decamping accused to stop and he apprehended—Nothing was on record as to why an open opportunity was extended to accused to leave the scene—Witnesses ran with glaring contradictions and improvements and they never remained consistent on material points of the case—Recovery so effected could not get support from the complainant and the Investigating Officer, as they stated that the recovered narcotic was consisting of slabs and that it was charas pukhta, however, when the case property was produced before the Trial Court, on request of accused, it was opened, where on one hand some of the seals were found broken, whereas on the other it was in pieces—Said contradiction further disputed the veracity of the witnesses on one hand and the identity of the recovered narcotic on the other hand—Prosecution failed to prove its case against the accused, in circumstances—Appeal against acquittal was dismissed accordingly.

2021  YLR  1120   PESHAWAR-HIGH-COURT

State VS IMRAN

1. 9(c)—Possession of narcotics—Appreciation of evidence— Appeal against acquittal—Benefit of doubt—Non-production of daily diary—Effect—In the present case, when the Investigating Officer was questioned regarding the arrival and departure from the police station to spot, he blatantly answered that he did not place on record the daily diary in that respect—Said lack of seriousness of Investigating Officer told nothing but to stamp him as an interested witness and his testimony could not wholeheartedly be relied upon—Prosecution failed to prove its case against the accused, in circumstances—Appeal against acquittal was dismissed accordingly.

2021  YLR  662   PESHAWAR-HIGH-COURT

State VS JAVED IQBAL

18. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 4 & 5—Possession and trafficking narcotics—Delay in sending samples of contraband for chemical analysis—Effect—Admittedly, recovery of contraband was made on 18.01.2008—Application for sending the samples to Chemical Examiner was drawn and handed over to Police Constable/witness on the same day as admitted by him in his cross-examination—Sample was taken by hand to Forensic Science Laboratory on 23.01.2008—No reason whatsoever was given by the said prosecution witness for retaining the samples with him for a period of five (05) days, therefore, the delay in taking the sample to the laboratory was another important defect in the prosecution case—Nothing on record to show that the samples of charas remained in safe custody during intervening period. (i.e. 18.01.2008 to 23.01.2008), which made Forensic Science Laboratory Report highly doubtful—Any doubt arising in the links of the chain of prosecution story, benefit of the same must go to the accused—Circumstances established that the prosecution had not been able to show that the grounds on which the Trial Court had based acquittal of the present accused were unreasonable, perverse, unsound or manifestly wrong, calling for interference—Appeal against acquittal was dismissed, in circumstances.

2021  YLR  662   PESHAWAR-HIGH-COURT

State VS JAVED IQBAL

1. 9(c)—Possession and trafficking Narcotics—Appreciation of evidence—Appeal against acquittal—Non-production of roznamcha entry/Daily Diary—Effect—Prosecution case was that 5200 grams charas in five packets wrapped in newspapers was recovered from the possession of accused, 4/4 grams charas was separated from each packet for chemical analysis while remaining 5180 grams was sealed into separate parcel—Record showed that prosecution in support of its case had not produced copy of roznamcha entry of leaving the police station for patrolling, which defect was sufficient to knock down the entire prosecution story as the base of the prosecution story for proceedings for patrolling was not supported by the documentary evidence—Production of entry of the Daily Diary report in the present case was more essential to establish the case as the entry in the roznamcha was for specific purpose of patrolling in pursuance thereof nakabandi was laid and accused was apprehended along with contraband—Circumstances established that the prosecution had not been able to show that the grounds on which the Trial Court had based acquittal of the present accused were unreasonable, perverse, unsound or manifestly wrong, calling for interference—Appeal against acquittal was dismissed, in circumstances.

2021  YLR  662   PESHAWAR-HIGH-COURT

State VS JAVED IQBAL

1. 9(c)—Possession and trafficking Narcotics—Appreciation of evidence—Appeal against acquittal—Prosecution case was that 5200 grams charas in five packets wrapped in newspapers was recovered from the possession of accused, 4/4 grams chars was separated from each packet for chemical analysis while remaining 5180 grams was sealed into separate parcel—Record showed that only four (04) grams of charas was taken from the five (05) packets of charas—Statement of Seizing Officer transpired that the samples were not taken from each slab/rod/cake and piece of recovered substance for chemical analysis—Said fact created doubts regarding quantity collected from each slab, cake and pieces—After allegedly recovering the charas from possession of the accused the parcels of the recovered substance were sealed with a monogram reading as WK, which was neither the abbreviation of the name of Seizing Officer/Recovery Officer nor Investigating Officer—Prosecution witnesses had not been able to advance any explanation whatsoever as to why Recovery Officer had not put his own monogram on the seals of the parcels prepared by him and as to why he had used the monogram of some other officer, whose posting was even not shown at police station at the relevant time—Prosecution had not been able to show that the grounds, on which the Trial Court had based acquittal of the accused, were unreasonable, perverse, unsound or manifestly wrong, calling for interference—Appeal against acquittal was dismissed, in circumstances.

2021  YLR  296   PESHAWAR-HIGH-COURT

SAJID KHAN VS State

14. 9(c)— Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)—Seizure of narcotic—Appreciation of evidence—Benefit of doubt—Chemical analysis—Delay in sending samples of contraband for analysis—Effect—Prosecution case was that twelve kilograms heroin was recovered from the secret cavities of the vehicle driven by accused—Alleged recovery was effected on 14.05.2013 while the samples were received in Forensic Science Laboratory on 19.09.2013—During that interregnum in whose custody the samples were lying and secondly Foot Constable (mentioned in Forensic Science Laboratory Report) had not been examined by the prosecution in order to prove the safe custody and its onwards transmission to the Forensic Science Laboratory—Prosecution had been miserably failed to prove its case beyond shadow of reasonable doubt, in circumstances—Appeal against conviction was allowed, in circumstances.

2021  YLR  296   PESHAWAR-HIGH-COURT

SAJID KHAN VS State

1. 9(c)—Possession of heroin—Appreciation of evidence—Benefit of doubt—Contradictions in the statements of witnesses—Scope—Prosecution case was that twelve kilograms of heroin was recovered from the secret cavities of the vehicle driven by accused—There were material contradictions in the statements of prosecution witnesses with regard to shifting of accused and case property to the Police Station, the mode and manner of alleged recovery—Complainant had admitted that at the time of alleged recovery Police Official/ASI was incharge of police post while complainant said that he himself was incharge of another police post and he also stated that his police post was under the supervision of the police post where Police Official/ASI was posted and he being SI was working under the supervision of ASI—Prosecution had failed to prove its case beyond shadow of reasonable doubt, in circumstances—Appeal against conviction was allowed, in circumstances.

2021  YLR  296   PESHAWAR-HIGH-COURT

SAJID KHAN VS State

1. 9(c)—Possession of heroin—Appreciation of evidence—Benefit of doubt—Prosecution case was that twelve kilograms of heroin was recovered from the secret cavities of the vehicle driven by accused—Record showed that recovery was effected from the secret cavities of the vehicle made for particular purpose, however when the same were seen by the Trial Court, it was observed that no secret cavities in a structured form were found—When the case of the prosecution was of secret cavities especially made for the same and the observations of the Court were contrary to the same then the observations of the court had overriding effect upon the evidence of the prosecution—Complainant had admitted in his cross-examination that all the documents were prepared by a Police Official/witness, even the application for sending the sample to Forensic Science Laboratory was also authored by said Police Official—Said Police Official was the prosecution witness and had also signed recovery memo but he was not produced by the prosecution during the trial and was abandoned—Prosecution had failed to prove its case beyond shadow of reasonable doubt, in circumstances—Appeal against conviction was allowed, in circumstances.

2021  YLR  254   PESHAWAR-HIGH-COURT

ASAD VS State

22. 9(c)—Qanun-e-Shahadat (10 of 1984), Art. 129(g)—Police Rules, 1934, R. 22.70—Transportation of narcotics—Withholding best evidence—Appreciation of evidence—Benefit of doubt—Contradictory evidence—Safe custody—Non-production of sample-bearer—Non-production of vehicle—Store room register, non-production of—Delay in sending samples to the Forensic Laboratory—Effect—Accused was alleged to have been apprehended during transportation of 28 kilograms of narcotics—Scribe of the FIR, who had affirmed receipt of murasila, had negated the stance of Investigating Officer regarding transmission of murasila along with case property—Complainant had stated that the contraband was handed over to the Moharrir for onward submission to the Forensic Laboratory, but Moharrir was not produced before the court—Constable who had taken the samples to the Forensic Laboratory was not examined during the trial—Second marginal witness to the recovery memo. was not examined for unknown reasons—Said important witnesses, being associated with the recovered contraband at the relevant time, were not produced before the Trial Court, therefore, adverse inference under Art. 129(g) of Qanun-e-Shahadat, 1984 could be drawn that had the witnesses entered into the witness box, they would not have supported the prosecution case—No record or any assertion was available on record to suggest that the samples and the case property were ever kept in malkhana—Samples were received in Forensic Laboratory with a considerable delay of about three days from an unnamed official—Vehicle from which the alleged recovery was effected was not produced before the court—High Court, while extending benefit of doubt to the accused, allowed his appeal.

2021  YLR  254   PESHAWAR-HIGH-COURT

ASAD VS State

1. 9—Possession of narcotics—Safe custody—Scope—Where safe custody of the recovered substance or safe transmission of samples of the recovered substance was not proved by the prosecution through independent evidence, it could not be concluded that the prosecution had succeeded in establishing its case against the accused beyond reasonable doubt.

2021  PCrLJ  1461   PESHAWAR-HIGH-COURT

NIAZ AHMAD VS State

1. 9(c)—Control of Narcotic Substances (Government Analyst) Rules, 2001, Rr. 4, 5 & 6—Possession of Narcotics—Appreciation of evidence—Benefit of doubt—Chemical analysis—Delay of thirteen days in sending the narcotic for analysis—Effect—Prosecution case was that 74 kilograms Charas Garda was recovered from the secret cavities of a vehicle driven by co-accused in the company of accused—Samples of contraband separated the refrom were sent to Forensic Science Laboratory with an unexplained delay of about thirteen days, which was required to be transmitted to the Forensic Science Laboratory within 72 hours of its seizure under S. 4 of the Control of Narcotic Substances (Government Analysts) Rules, 2001—Record showed that report of Forensic Science Laboratory did not signify the test protocols that were applied to carry out the test, therefore, the mandatory requirement of law provided by R. 6 had not been complied with in its letter and spirit—Non-compliance of the said Rule would render the report in question inconclusive, suspicious and untrustworthy, thus, the same could not be relied upon qua maintaining the conviction and sentence of the accused—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was allowed, in circumstances.

2021  PCrLJ  1461   PESHAWAR-HIGH-COURT

NIAZ AHMAD VS State

17. 9(c)—Criminal Procedure Code (V of 1898), S. 164—Possession of Narcotics— Appreciation of evidence— Benefit of doubt—Confessional statement of accused—Scope—Prosecution case was that 74 kilograms of Charas Garda was recovered from the secret cavities of vehicle driven by co-accused in the company of accused—Record showed that the accused allegedly made an application on 17.01.2017 for recording his statement and his alleged confessional statement was recorded on 20.01.2017—Application dated 17.01.2017 available on record of the case nowhere suggested that the accused intended to record his confessional statement, rather he showed his desire to record his statement—Alleged confessional statement could not be used for his conviction—Accused subsequently retracted from his confessional statement and alleged the same to be illegal, recorded without observing codal formalities i.e. without warning or opportunity for pondering over his confession—In order to properly assess intrinsic worth of the said confessional statement that whether the same was voluntarily, true and recorded after observance of due and codal formalities, High Court had thoroughly perused the same—In reply to Question No.7″ Do you want to engage the counsel?”, the accused replied that;?Might be but not at present as I had no contact with my family.” which clearly suggested that no proper opportunity was provided to the accused to contact his family members or to engage his counsel, thus, the alleged confessional statement was not sufficientfor maintaining the conviction of the accused—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt— Appeal against conviction was allowed, in circumstances.

2021  PCrLJ  1461   PESHAWAR-HIGH-COURT

NIAZ AHMAD VS State

1. 9(c)—Possession of Narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that 74 kilograms of Charas Garda was recovered from the secret cavities of vehicle driven by co-accused in the company of accused—Record showed that during search of the vehicle in question, the complainant noted that there was double floor beneath the seats thus, he opened the rear bumper beneath the grill with the help of tools and found double floor having secret cavity, in which 74 packets of Charas Garda were lying—Complainant separated 5/5 grams Charas Garda from each packet as sample for Forensic Science Laboratory analysis and sealed the same in parcels whereas the remaining quantity was sealed in one Parcel—Complainant affixed 3/3 seals of monogram SM over the parcels, however, the said monogram did not signify the name of the Seizing Officer—No explanation was offered as to why the said parcels did not contain the monogram of Seizing Officer, which had created a serious doubt regarding the seizure of contraband—Complainant had alleged that he had used tools for opening the secret cavity of the vehicle but he had neither specifically mentioned in the murasila nor stated in his examination-in-chief as to what kind of tools he had used and from where he had arranged said tools—Said fact of using tools by the complainant had remained unspecified during the course of investigation—After conducting the alleged recovery proceedings, the complainant sent Murasila to Police Station for registration of case, which was received by Moharrar, who stated that he received Murasila only—If only Murasila was brought to Police Station, then after registration of case, how the recovery memo, card of arrest were handedover to the Investigating Officer of the case in the Police Station, was a question, which made the preparation of said documents by the complainant highly doubtful—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was allowed, in circumstances.

2021  PCrLJ  1407   PESHAWAR-HIGH-COURT

AQIB ALI VS State

Ss.9(c), 22 & 23—Criminal Procedure Code (V of 1898), S.561-A—Inherent jurisdiction of High Court—System of trial—Role of Trial Court—Further samples, taking of—Accused persons were facing trial on the charge of possessing narcotic substance—Trial Court allowed investigating officer to take further samples of recovered articles—Validity—Judicial dispensation in Pakistan is adversarial in its nature and character—Court acts as a neutral arbiter and has to dispassionately apprise, appreciate, examine and weigh the evidence placed before it rather than by ignoring the evidence and embarking on a probing journey—High Court set aside the order of Trial Court as the same was contrary to law laid down by Supreme Court— Petition was allowed in circumstances.

2021  PCrLJ  1274   PESHAWAR-HIGH-COURT

State VS SHAHID HUSSAIN

3. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.6—Possession of narcotics—Appreciation of evidence—Appeal against acquittal—Benefit of doubt—Delay of about five days in sending recovered samples to the Forensic Science Laboratory—Chain of safe custody—Record showed that the occurrence, as per record, took place on 03.08.2017 while the Forensic Science Laboratory Report revealed that the samples were received by the Laboratory after the delay of five days—Moharrir of the concerned police station, in cross examination stated that parcels were handed over to Investigating Officer—Said witness further stated that he did not know as to when the Investigating Officer sent the parcels to the Forensic Science Laboratory—Prosecution had also failed to produce the official, who had taken the samples to the Laboratory, therefore, safe custody of the samples and delay in sending it to the Laboratory, besides lack of the requisite protocol of the test applied, was yet another uncertainty which further made cracks in the prosecution story as the separated, samples ought to have been received by the Forensic Science Laboratory within 72 hours of the seizure as required by R. 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt, thus trial court had rightly acquitted the accused—Appeal against acquittal was dismissed accordingly.

2021  PCrLJ  1274   PESHAWAR-HIGH-COURT

State VS SHAHID HUSSAIN

1. 9(c)—Possession of narcotic—Appreciation of evidence—Appeal against acquittal—Benefit of doubt—Prosecution case was that 3600 grams of charas was recovered from the plastic envelop along with mobile belonging to accused—Admittedly, neither the alleged illegal stuff had been recovered from the direct possession of the accused nor he was shown arrested on the spot—Name of accused was not mentioned in the FIR nor his features were mentioned therein—Prosecution case was that SIM recovered from the spot was registered in the name of accused, therefore, he was arrested in the case—Seizing Officer and marginal witness to the recovery memo in their cross examinations categorically stated that they were unable to see the face of accused as his back was towards them, therefore, his description and feature was not given in the Murasilla, thus, the entire case of the prosecution is based on the CDR data of recovered SIM—Nothing was available on record to show that the SIM relied by the prosecution was registered in the name of the accused—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt, thus Trial Court had rightly acquitted the accused— Appeal against acquittal was dismissed accordingly.

2021  PCrLJ  1274   PESHAWAR-HIGH-COURT

State VS SHAHID HUSSAIN

3. 9(c)—Possession of narcotic—Appreciation of evidence—Appeal against acquittal—Call Data Record—Scope—Prosecution case was that 3600 grams of charas was recovered from the plastic envelop along with mobile belonging to accused—CDR data mentioned particulars, i.e., SIM number, name of accused with CNIC number coupled with FIR number of the case but it had neither been attested, endorsed, stamped and signed by the responsible official of the concerned Cellular Company nor the official, who had prepared/taken out the same from the Computer, had been associated or produced before the court to testify that it was issued by him—No explanation as to how the Investigating Officer obtained the CDR data from the concerned Cellular Company as there was no application for obtaining the requisite data from the Company, except the recovery memo, in which process too official of the concerned company had not been associated—CDR data also bore the FIR number and name of the Police Station, question arose as to how FIR number and police station were mentioned in it as the present case was registered on 03.08.2017 while the CDR data was of 30.07.2017, therefore, such type of secondary evidence could not be relied upon—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt, thus trial court had rightly acquitted the accused—Appeal against acquittal was dismissed accordingly.

2021  PCrLJ  1018   PESHAWAR-HIGH-COURT

ASLAM KHAN VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.6—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Delay in sending recovered samples to the Forensic Science Laboratory—Chain of safe custody—Prosecution case was that 18 Kgs. of charas was recovered from the fuel tank of motorcar driven by accused—Record showed that the samples separated from the alleged contraband were received in the Forensic Science Laboratory, after delay of two days, which had not been plausibly explained—Witness, who had taken the samples to the Forensic Science Laboratory, had stated that it was handed over to him by Moharrir of the Police Station but the said Moharrir had not been examined by prosecution in order to explain the delay in sending samples to the Forensic Science Laboratory as well as its safe custody—Even the prosecution had also not produced extract from the relevant Register, which was kept at Police Malkhana for entering therein the recovered and sent contraband—Production of extract from the relevant Register was material so that it could be ascertained that the prosecution version regarding safe custody of the case contraband was corroborated by the relevant record—Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt—Appeal against conviction was allowed, in circumstances.

2021  PCrLJ  1018   PESHAWAR-HIGH-COURT

ASLAM KHAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Contradictions in the murasila and recovery memo—Scope—Prosecution case was that 18 Kgs of charas was recovered from the fuel tank of motorcar driven by accused—Record showed that the murasila and recovery memo as well as statements of witnesses were drafted by complainant but during trial on the request of defence, in order to verify the same, the handwriting of complainant was obtained and placed on file as Mark-A—Mark-A and murasila as well as recovery memo, showed on comparison that there was much difference in the same, meaning thereby that the murasila and recovery memo were not in the handwriting of complainant—Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt—Appeal against conviction was allowed, in circumstances.

2021  PCrLJ  1018   PESHAWAR-HIGH-COURT

ASLAM KHAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Contradictions in the statements of witnesses—Scope—Prosecution case was that 18 kgs of charas was recovered from the fuel tank of motorcar driven by accused—Prosecution examined seizing officer/complainant and marginal witness to prove its case—Said witnesses did not corroborate each other on material points rather contradicted each other—Complainant stated that he affixed 3/3 seals of monogram “AK” on the parcels of samples separated from recovered contraband but the said detail of number of seals had not been mentioned in the murasila—Likewise, as per complainant, there was no seal monogram in the abbreviation of his name in his department while marginal witness asserted in his cross-examination that the monogram of “AK” was the personal monogram of complainant, however, other Police Official deposed in his cross-examination that the said monogram of “AK” was of a Police Station—Complainant stated that the local police of that Police Station were not present with him on the spot at the time of sealing the parcels and affixation of monogram over the parcels, however, the marginal witness denied the version of complainant by stating in his cross-examination that police was around them but the whole proceedings was carried out by the Excise Department because they had conducted the whole proceedings, therefore, the local police of that Police Station had no concern at that very time—Complainant deposed that after sealing of case property on the spot, he along with other contingents of Excise Department went to that Police Station but marginal witness deposed that he did not remember that they visited that Police Station or not, however, one Assistant Sub-Inspector (ASI) came to the spot and spent some 20 minutes and thereafter went away—Said assertion was further contradicted by marginal witness that after arrival of Investigation Officer to the spot for spot inspection, preparation of site plan, recording of statements of witnesses under S. 161, Cr.P.C., he along with other contingents of Excise Department went to that Police Station, meaning thereby that none of the said witnesses were telling the truth—Had they been present on the spot at relevant time and the mode and manner of the occurrence was correct then they would have not contradicted each other on material points—Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt—Appeal against conviction was allowed, in circumstances.

2021  PCrLJ  1018   PESHAWAR-HIGH-COURT

ASLAM KHAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that 18 kgs. of charas was recovered from the fuel tank of motorcar driven by accused—Inspector along with Sub-Inspector (S.I.) as well as other excise personnel while present on the spot intercepted a motorcar driven by accused and 18 Kgs. of charas was recovered from the empty fuel tank of the same, however, neither the names of other personnel present on the spot with seizing officer had been mentioned in the murasila nor the said empty fuel tank from which the alleged contraband were recovered, had been taken into custody by the Inspector, however, the SI in his cross-examination stated that the tank of motorcar was taken vide recovery memo but perusal of contents of recovery memo revealed that no fuel tank had been taken into possession—Alleged fuel tank had not been produced before the court for exhibition of the same in support of prosecution case—When the fuel tank from which the contraband was recovered had not been produced, how it could be proved that the contraband was recovered from the same—Nowhere it was mentioned as to how and through which tool, the said fuel tank was opened as according to SI, the contraband was in shape of slabs, so how it was recovered from the fuel tank having a small hole—Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt—Appeal against conviction was allowed, in circumstances.

2021  PCrLJ  998   PESHAWAR-HIGH-COURT

DILAWAR VS State

1. 9(c)— Transportation of narcotics— Safe custody— Non-production of sample-bearer—Scope—Delay in sending samples to Laboratory—Scope—Accused was alleged to have been found driving a vehicle search whereof led to recovery of 12 kgs of charas—Seizing Officer did not remember the order/line in which the contraband was lying—No receipt or abstract of Malkhana Register was placed on record—Sample-bearer was not examined—Contraband was taken into possession on 22-02-2015 whereas the samples reached the Forensic Laboratory on 10-03-2015 and there was nothing on record to show as to where the samples remained during the period—Investigating Officer, in his cross-examination, had admitted that he had not investigated the factum of delay in sending of alleged samples to Forensic Laboratory and its safe custody—Trial Court had not analyzed the prosecution evidence in its true perspective and in accordance with the settled principles for dispensation of criminal justice—Appeal against conviction was accepted, in circumstances.

2021  PCrLJ  638   PESHAWAR-HIGH-COURT

QUTAB KHAN VS DISTRICT POLICE OFFICER, D.I. KHAN

Ss. 22-A & 22-B—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Constitution of Pakistan, Art. 199 —Constitutional petition—Ex-Officio Justice of Peace, powers of—Direction to investigating officer—Petitioners were accused facing proceedings under S. 9(c) of Control of Narcotic Substances Act, 1997—Petitioners were aggrieved of order passed by Ex-Officio Justice of Peace declining to issue direction to investigating officer for arraying respondent as accused and recording statement under S. 164, Cr.P.C.—Validity— Powers conferred on Ex-Officio Justice of Peace were not judicial, rather were ministerial— While dealing with applications under S. 22-A(6), Cr.P.C. Ex-Officio Justice of Peace could issue directions to concerned police officials for observance of all legal requisite formalities but he could not step into the shoes of investigating agency, which was independent in all respects, such matter related to investigating agency and not with Ex-Officio Justice of Peace—High Court declined to interfere in judgment/order passed by Ex-Officio Justice of Peace as the same was well reasoned and based on proper appreciation of facts and circumstances of the case—Constitutional petition was dismissed in circumstances.

2021  MLD  1951   PESHAWAR-HIGH-COURT

Syed JAWAD HUSSAIN VS State

S.9(c)—Possession of 36 kgs of charas—Appreciation of evidence—Benefit of doubt—Prosecution case was that 30 packets of charas each of 1200/1200 grams, lying in secret cavity made beneath the driver’s seat of the vehicle were found, which was being driven by the accused—Record showed that when parcel wherein the Seizing Officer had kept the 30 packets after separating therefrom the representative samples, was opened before the Trial Court, it turned out to have only 28 packets instead of 30 as alleged in the FIR—Representative samples for chemical analysis were taken only from 20 packets and not from 28—Said aspect of the case was so startling that same had crumbled the prosecution case to dust—Appeal against conviction was allowed, in circumstances.

2021  MLD  1238   PESHAWAR-HIGH-COURT

MURAD ALI VS State

S.9(b)—Possession of Narcotics—Appreciation of evidence—Prosecution case was that 106 grams of heroin was recovered from the possession of the accused—Record revealed that when charge was framed the accused did not plead guilty thereto—Accused had contested the allegations of the prosecution and had claimed himself to be innocent—Statements of four prosecution witnesses had been recorded on different dates thereafter—Thumb impression of the accused had been shown obtained on a preprinted form, wherein certain blank spaces had been filled with black ink—Second charge was framed and also on preprinted form wherein blank spaces had just been filled with black ink—Accused was shown to have pleaded his guilt to that charge by affixing his thumb impression—Statement of the accused had also been shown recorded on a preprinted form in the above-mentioned manner, it indicated a different date—Record in the trial had been transferred to the Trial Court wherein notice had been issued to accused for the following date—On said date all the above-mentioned proceedings had been shown conducted, but in the absence of counsel for the accused—Accused had already engaged a counsel in the trial and was being represented through his counsel, but the day he had been shown to have pleaded his guilt, all the proceedings had been conducted in absence of his counsel—Once the accused had been charge-sheeted, wherein he had pleaded innocence and claimed trial, then how was a second charge framed in the case—Such a procedure adopted by the trial court was totally alien to the law—No occasion was available for the Trial Court to have framed a second charge and that also in the said manner—Conviction recorded in the case had not been made according to law nor was the sentence justified on the basis of such a conviction—Appeal was allowed by setting aside conviction and sentence awarded by the Trial Court and matter was remanded to the Trial Court for an afresh decision.

2021  MLD  272   PESHAWAR-HIGH-COURT

AFSAR KHAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), S.59—Possession of narcotics—Bail, grant of—Registration of case under repealed Act—Scope—Accused was alleged to have been found in possession of 2400 grams of charas—Case against accused was registered under S.9(c) of Control of Narcotics Substances Act, 1997, which had already been repealed under S.59 of Khyber Pakhtunkhwa Control of Narcotics Substances Act, 2019—Newly added subsection (3) of S.59 of Khyber Pakhtunkhwa Control of Narcotics Substances Act, 2019, however, provided that all proceedings done under the Control of Narcotics Substances Act, 1997, were protected till 31st January 2020 and thereafter no law enforcing agency was empowered to register cases under the repealed Act in the Province but the seizing officer handed over the case to ANF officials instead of local police, who registered the case under the repealed Act, which was against the law—Petition for grant of bail was allowed.

2021  PCrLJN  22   PESHAWAR-HIGH-COURT

State VS SAFIR ULLAH

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Transportation of narcotics—Report/result of test or analysis—Appreciation of evidence—Appeal against acquittal—Benefit of doubt—Contradictory statements—Scope—Accused was alleged to have been found transporting 72 kilograms of charas—Material contradictions were found in the statements of prosecution witnesses which created reasonable doubt in the prosecution case—Evidence of prosecution when placed in juxtaposition to the defence stance coupled with statement of court witness showed that possibility of false implication could not be ruled out—Report of Forensic Laboratory though was in affirmative but neither any protocol was mentioned in the report nor any test was referred to on the basis whereof the Chemical Examiner had concluded that the samples sent for examination contained charas—Appeal against acquittal was dismissed, in circumstances.

2021  YLR  2430   LAHORE-HIGH-COURT-LAHORE

NOOR ELAHI VS State

S.9(c)—Transportation of narcotics—Appreciation of evidence— Scope—Accused was sentenced to death for trying to smuggle 46.800 kilograms of heroin through a consignment consisting of 16 iron boxes containing stones—Prosecution had succeeded in proving that the accused’s firm was hired for the purpose of export of consignment in question and all the relevant documents such as, Goods Declaration Forms, Packing Invoices, Undertaking of the Company, Application for Export Approval / Import Authorization, Certificates of Origin, Declaration Form furnished by the Exporter, Air Waybill related to the accused (firm)—Material witnesses had remained consistent on all the relevant facts and no significant contradiction in their statements had come on record—Positive report was received from the Chemical Examiner in response to sixteen sample parcels of heroin sent for chemical analysis—No previous criminal history of the accused was brought on record, hence he was deemed to be the first offender warranting lesser sentence—Conviction of accused was altered from death to imprisonment for life—Appeal against conviction was dismissed, in circumstances.

2021  YLR  2349   LAHORE-HIGH-COURT-LAHORE

QALANDAR SHAH VS State

66. 9(c)—Possession of narcotics—Appreciation of evidence—Preparation of consolidated sample—Effect—Accused was alleged to have been found in possession of 1160 grams of charas—Recovered contraband consisted of pieces, however, a consolidated sample parcel was prepared and no separate sample parcel of each piece was prepared—Prosecution could not bring on record the exact weight of each piece, therefore, consolidated sample parcel of charas weighing 66.25 grams, which was sent to the Forensic Laboratory, could not be considered as a representative sample of the whole contraband material so recovered—Prosecution could not prove its case beyond shadow of doubt against the accused to the extent of recovery of 1160 grams of charas, however, the prosecution had proved its case against the accused beyond the shadow of doubt to the extent of recovery of 66.25 grams of charas, which was sent to the office of Chemical Examiner for analysis—Safe transmission of the sample parcel to the office of Forensic Laboratory was also proved by the prosecution—Conviction of the accused was converted from Ss.9(a) 9(b) & 9(c) of Control of Narcotic Substances Act, 1997—Appeal against conviction with the modification in sentence was dismissed, in circumstances.

2021  YLR  2282   LAHORE-HIGH-COURT-LAHORE

MAZHAR ABBAS VS State

1. 9—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Scope—Control of Narcotic Substances Act, 1997, provides stringent punishments, therefore, the proof has to be construed strictly and the benefit of any doubt in the prosecution case must be extended to the accused.

2021  YLR  2282   LAHORE-HIGH-COURT-LAHORE

MAZHAR ABBAS VS State

S.9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.6—Possession of narcotics—Report of test or analysis—Appreciation of evidence—Benefit of doubt—Non-mentioning of full protocols—Effect—Accused was alleged to have been found in possession of 1050 grams of charas—Report of Forensic Laboratory did not give the details of the full protocols and the test applied at the time of analysis of sample of narcotic—Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, had made it imperative on the analyst to mention result of material analyzed with full protocols applied thereon along with other details in the report—Single circumstance creating reasonable doubt was sufficient to cast doubt about the veracity of prosecution case and the benefit of said doubt has to be extended in favour of the accused not as a matter of grace or concession but as a matter of right—Appeal against conviction was allowed, in circumstances.

2021  YLR  1514   LAHORE-HIGH-COURT-LAHORE

SOHAIL ALMAS VS State

1. 9(c)— Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Qanun-e-Shahadat (10 of 1984), Art. 129(g)—Possession of narcotics—Withholding of best evidence—Scope—Allegation against accused was that the complainant, having spy information, got de-boarded the accused from a flight, got his baggage i.e. trolley bag off loaded, out of which eight kilograms of heroin was recovered among other articles—Baggage tag having been available on the trolley bag was not produced in evidence, which led the Court to draw an inference adverse to the prosecution under Art. 129(g) of Qanun-e-Shahadat, 1984—Closed-circuit television (CCTV) footage of the luggage booking, boarding card issuance counter or the departure lounge were not collected and secured by the investigating agency to produce the same in evidence to establish the fact that it was the accused who got the trolley bag booked with the airline—Report of Chemical Examiner although carried the names of tests applied yet he had not mentioned the test protocols applied in carrying out the required tests, which was against the mandate of R. 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001—Accused could not be convicted and sentenced only on the basis of oral assertions—Prosecution case was seriously doubtful—Appeal against conviction was allowed, in circumstances.

2021  YLR  766   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD IDREES VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Prompt FIR—Safe custody—Scope—Accused was alleged to have been found in possession of 1630 grams of charas—Statements of recovery witnesses were coherent and enthused sureness— Prosecution witnesses had supported each other on all significant facts, including date, time, place of occurrence, quantity of the recovered narcotic and the manner in which the recovery was affected—First Information Report was lodged within a short span of time—Prosecution had successfully proved the safe custody; deposit of case property from the place of occurrence to the police station and from police station to the Forensic Laboratory—Prosecution had successfully proved its case against the accused beyond any shadow of doubt—Appeal against convic-tion was dismissed, in circumstances.

2021  YLR  766   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD IDREES VS State

1. 9—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4—Possession of narcotics—Dispatch of sample for test or analysis—Scope—Accused assailed his conviction on the ground that the report of Forensic Laboratory could not be read in evidence as the sample parcel was not deposited within 72 hours of its preparation—Sample parcel was sent for analysis to the Forensic Laboratory on 26-09-2018 and the same was submitted in it on 27-9-2018—-Occurrence had taken place on 18-9-2018—High Court observed that sample parcel was deposited within a reasonable time— Accused had failed to show that the sealed sample parcel was tampered with—Appeal against conviction was dismissed, in circumstances.

2021  YLR  766   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD IDREES VS State

Ss. 9 & 36—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Possession of narcotics—Reports of government analysts—Report of result of analysis—Scope—Accused assailed his conviction on the ground that report of Forensic Laboratory could not be read in evidence as the same was not clear with respect to the test conducted to identify and analyse the recovered narcotic and that it was necessary for the Forensic Laboratory to have appended the results of each and every test conducted by chemical examiner in order to establish the identity of narcotic—Held; Forensic Laboratory had declared the tests which were performed on the received item—Item received by Forensic Laboratory was found to contain charas—Report of Forensic Laboratory revealed that Gas Chromatography-Mass Spectrometry method was used for confirmation of the presumptive tests performed on the received item—Implicit reliance could be placed on such report of Forensic Laboratory in presence of confirmation by the use of Gas Chromatography-Mass Spectrometry method—Appeal against conviction was dismissed, in circumstances.

2021  YLR  584   LAHORE-HIGH-COURT-LAHORE

AMEER AMAN ULLAH VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Scope—Accused was alleged to have been found in possession of 1500 grams of charas—Report of Forensic Laboratory did not give the details of full protocols and the test applied at the time of analysis of sample of narcotics rather it simply mentioned that certain tests were conducted and contraband material recovered in the case was charas—Appeal was allowed and the impugned judgment was set aside, in circumstances.

2021  YLR  584   LAHORE-HIGH-COURT-LAHORE

AMEER AMAN ULLAH VS State

1. 9—Possession of narcotics—Scope—Provisions of the Control of Narcotic Substances Act, 1997, provide stringent punishments, therefore, their proof has to be construed strictly and the benefit of any doubt in the prosecution case must be extended to the accused.

2021  YLR  443   LAHORE-HIGH-COURT-LAHORE

RASHID alias JHORI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Safe custody—Scope—Accused was alleged to have been found in possession of 15 kilograms of “doday of poast”—Sample-bearer had kept the sample parcel in his possession for one day—Date of submission of sample in the Forensic Laboratory given by sample-bearer was contradicted by the Forensic Laboratory—Safe custody of the sample parcel could not be said to have been proved, rendering the prosecution’s case to be doubtful and under the law, the doubt was always resolved in favour of the accused—Appeal against conviction was allowed, in circumstances.

2021  YLR  23   LAHORE-HIGH-COURT-LAHORE

RIAZ AHMAD VS State

1. 9—Possession of narcotics—Scope—Provisions of Control of Narcotic Substances Act, 1997, provide stringent punishments, therefore, their proof has to be construed strictly and the benefit of any doubt in the prosecution case must be extended to the accused.

2021  YLR  23   LAHORE-HIGH-COURT-LAHORE

RIAZ AHMAD VS State

Ss. 9(c) & 36—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Possession of narcotics—Reports of Government Analysts—Report of test—Non-mentioning of full protocols—Effect—Accused was alleged to have been found in possession of 1110 grams of opium—Report of Forensic Laboratory did not contain the details of the protocols and the test applied at the time of analysis of sample of narcotic—Report failing to describe the details of the full protocols and the tests applied was inconclusive, unreliable, suspicious and untrustworthy and did not meet the evidentiary presumption attached to report of the Government Analyst under S.36(2) of Control of Narcotic Substances Act, 1997—Single circumstance creating reasonable doubt was sufficient to cast doubt about the veracity of prosecution case and the benefit of doubt had to be extended in favour of the accused not as a matter of grace and concession but as a matter of right—Appeal against conviction was allowed, in circumstances.

2021  PCrLJ  1882   LAHORE-HIGH-COURT-LAHORE

DA YONG WU VS State

6. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9, 6 & 2(za)—Recovery of ketamine—Psychotropic substance—Scope—Accused was alleged to have been found in possession of 5100 grams of ketamine—Acceptance of post arrest bail was mainly urged on the ground that the recovered substance was neither declared narcotic drug nor psychotropic or controlled substance thus no case under S. 9 of Control of Narcotic Substances Act, 1997 could be registered—Held; ketamine hydrochloride was declared as psychotropic substance hence was added at Sr. No. 39-A of the schedule annexed with Control of Narcotic Substances Act, 1997 vide SRO No. 446(I)/2020 dated 6.4.2020 issued by Government of Pakistan—Ketamine was generally used for medical purposes and even on occasions as an anesthesia medicine thus probably it was felt that it came within the exceptions mentioned in S. 6 of Control of Narcotic Substances Act, 1997—As a necessary consequence, the SRO 446(I)/2020 was later withdrawn on 21.8.2020 and as a necessary corollary, the entry at Sr.No. 39-A in schedule of Control of Narcotic Substances Act, 1997 was omitted—Recovery of ketamine could in no manner entail consequences of a criminal case registered under S. 9 of Control of Narcotic Substances Act, 1997—Petition for grant of bail was accepted, in circumstances.

2021  PCrLJ  1882   LAHORE-HIGH-COURT-LAHORE

DA YONG WU VS State

Ss. 9, 6 & 7—Prohibition of possession of narcotic drugs—Prohibition of import or export of narcotic drugs—Scope—Mischief of S. 9 of Control of Narcotic Substances Act, 1997 is attracted if a person is found to have contravened the provision of Ss. 6, 7 & 8 of the Act—According to S. 6 of the Act production, manufacturing, extraction, possession, sale and purchase of any narcotic drug, psychotropic substance or controlled substance is prohibited—Eloquent examination of S. 6 of the Act unfolds that said prohibition is not absolute in nature rather is subject to certain exceptions and there is no bar to possess, produce, manufacture such substances for medical, scientific or industrial purposes but in accordance with law for the time being in force—For entailing consequences of S. 9 of the Act the recovered substance must be declared as narcotic drug, psychotropic or controlled substance—Under S. 7(2) of the Act, Federal Government can make rules to permit and regulate the import, export and transshipment of narcotic drugs, psychotropic or controlled substance under a license or permit.

2021  PCrLJ  1624   LAHORE-HIGH-COURT-LAHORE

ABDUL GHAFOOR VS State

Ss. 9(a) & 9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic substances/drugs—Sentence, reduction in—Safe custody and transmission of parcel containing recovered narcotic—Scope—Accused impugned order of Trial Court whereby he was convicted and sentenced under S. 9(c) of Control of Narcotic Substances Act, 1997, inter alia, on ground that prosecution witnesses were not credible and safe custody and transmission of alleged recovered narcotic was not proved—Validity—Accused could not impeach credibility of police complainants and such police witnesses were as good as any other witness unless proved otherwise and S. 25 of Control of Narcotic Substances Act, 1997 excluded application of S. 103, Cr.P.C.—Contention of police witnesses was that 78 grams of recovered narcotic was segregated for chemical analysis and the rest of 1472 grams recovered narcotic was secured separately however, prosecution witnesses could not prove as to who transmitted parcel containing said 1472 grams and no evidence was presented to show how such parcel was retrieved and brought to court to be exhibited as evidence —Courier and moharrar were material witnesses to establish that case property was not tampered with while it was with them—Prosecution, in present case, only proved safe custody and transmission of parcel containing sample of 78 grams ; and therefore accused could only be sentenced and convicted to extent of quantity of the sample parcel—High Court after converting conviction of accused from Ss. 9(c) to 9(a) of Control of Narcotic Substances Act, 1997, reduced his sentence—Appeal was allowed.

2021  PCrLJ  1334   LAHORE-HIGH-COURT-LAHORE

TAHIR NAQASH VS State

1. 9(c)— Possession of narcotics—Appreciation of evidence—Scope—Accused was alleged to have been found in possession of 16 kilograms of heroin— Recovery of contraband was proved through the testimony of three witnesses, being recovery witnesses and the witness who took the complaint to police station for registration of FIR—Later had deposed that after registration of FIR, he had returned back to place of recovery with a copy of FIR along with the Investigating Officer—Presence of Investigating Officer at the place of occurrence was also proved and defence could not challenge his testimony—Prosecution had succeeded in proving the charge beyond shadow of reasonable doubt—Appeal against conviction was dismissed, in circumstances.

2021  PCrLJ  1334   LAHORE-HIGH-COURT-LAHORE

TAHIR NAQASH VS State

22. 9(c)—Police Rules, 1934, R. 22.70—Qanun-e-Shahadat (10 of 1984), Art. 87—Possession of narcotics—Store-Room Register—Certified copies of public documents—Scope—Accused was alleged to have been found in possession of 16 kilograms of heroin—Examination of entry in Register No. XIX (Store-Room Register as prescribed in R. 22.70 of the Police Rules, 1934) showed that name of police station and district was not mentioned in the page brought on record—Public documents could be proved through production of certified copies yet they should be in the form as required under Art. 87 of the Qanun-e-Shahadat, 1984—Register No. XIX was not duly proved; therefore, any page/part of register brought on record without formal proof amounted to improper admission of evidence—If such practice was allowed to continue then every junior ranked police official while bringing on record any register while claiming it as genuine, real and true without the knowledge of senior officers in the hierarchy of police station or the department could thwart the sanctuary of prosecution case—Entry of Register No. XIX produced in evidence, being not certified through process of law, was rejected.

2021  PCrLJ  1192   LAHORE-HIGH-COURT-LAHORE

RAB NAWAZ VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Transportation of narcotics—Bail, grant of—Non-availability of report of Chemical Examiner—Completion of investigation—Physical disability of accused—Further inquiry—Scope—Accused was alleged to have been apprehended while transporting 3290 grams of charas—Contention of accused was that he was suffering from physical disability and as such he was unable to drive the car—Report requisitioned from the Superintendent, District Jail, reflected that the accused was suffering from old firearm injury on left femur operated from a Hospital with metallic open fixation, which was removed after about one year, thereafter external plastic leg support was applied, thus, in such backdrop, case against accused had, at least, become to be one for his release on bail due to physical disability—Report of the Chemical Examiner had also not been received so far—Investigation of the case had already been completed—Petition for grant of bail was allowed, in circumstances.

2021  PCrLJ  811   LAHORE-HIGH-COURT-LAHORE

ZEESHAN IRSHAD VS State

69. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Scope—Accused was convicted for having been found in possession of 1300 grams of charas—Trial Court while framing charge against the accused had mentioned the date of recovery of charas as 27-11-2017, whereas both the recovery witnesses had deposed that the charas was recovered on 28-11-2017—Likewise, during cross-examination, both the recovery witnesses had denied the suggestion that the accused was taken into custody on 27-11-2017—Such an anomaly had gained more importance in the context that even in the crime report the recovery was stated to have been effected on 27-11-2017—Lacuna regarding the date of occurrence had shattered the prosecution case—Recovery witnesses while appearing in the dock had unanimously deposed that out of the recovered substance, 65 grams were separated for chemical analysis, however, the weight of sample parcel was found by Forensic Laboratory to be 69.90 grams—High Court observed that the parcel sent for chemical analysis was not the representative sample of the recovered charas—Appeal against conviction was accepted, in circumstances.

2021  PCrLJ  738   LAHORE-HIGH-COURT-LAHORE

ZULFIQAR ALI VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotics—Mode of making searches and arrest—Search to be made in presence of witnesses—Sentence, reduction of—Scope—Accused was alleged to have been found in possession of 1090 grams of charas—Statements of prosecution witnesses had successfully provided the detail of events pertaining to the arrest, recovery of charas and its securing through parcel—Prosecution witnesses were cross-examined at length by the defence, however, they remained consistent and gave no leverage to the defence—Positive report from the office of Forensic Laboratory with regard to parcel sent for chemical analysis was yet another factor to prove the guilt of the accused—Recovery was, no doubt, effected from public place and none from the public was associated in the proceedings but the accused could not obtain benefit out of it as according to S. 25 of the Control of Narcotic Substances Act, 1997, the provisions of S. 103, Cr.P.C., were not applicable—Accused was rightly convicted by the Trial Court, in circumstances—Accused was a first offender and had served out three years out of his sentence of 04 years and 06 months—Appeal was dismissed, conviction of accused was maintained but his sentence was reduced to the period already undergone by him.

2021  PCrLJ  517   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SAJJAD VS State

Ss. 9(c) & 36—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Possession of narcotics—Report of Government Analyst—Report of result of test or analysis—Appreciation of evidence—Benefit of doubt—Non-mentioning of full protocols—Effect—Accused was alleged to have been found in possession of two packets of charas—Report of Forensic Laboratory did not give the details of the full protocols and the tests applied at the time of analysis of sample—Report of Forensic Laboratory failed to describe in it the details of the full protocols and the stest applied was inconclusive, unreliable, suspicious and untrustworthy and did not meet the evidentiary presumption attached to a report of the Government Analyst under S. 36(2) of Control of Narcotic Substances Act, 1997—Appeal against conviction was allowed, in circumstances.

2021  PCrLJ  427   LAHORE-HIGH-COURT-LAHORE

JAMAL KHAN VS State

Ss. 9(c) & 29— Possession of narcotics— Presumption—Appreciation of evidence—Prompt FIR—Corroborative evidence—Safe custody—Scope—Accused was alleged to have been in possession of 7000 grams of charas when he was apprehended by police—Prosecution witnesses had corroborated each other on all material points, including date, time and place of occurrence, the quantity of recovered narcotics and the manner in which recovery was effected—First Information Report was got lodged within a short span of ten minutes and the complainant had not only named the accused but had also mentioned each and every minor as well as material facts of the incident therein, which excluded the possibility of deliberation or consultation regarding false implication of the accused in the case—Nothing was available on record which could establish that the witnesses had deposed against the accused and implicated him in the case due to previous enmity, grudge, malice or to fulfil some ulterior motive—Prosecution had successfully proved the safe custody and deposit of the case property from the place of occurrence to the police station and from the police station to the office of Forensic Science Laboratory—Once the prosecution was able to bring on record evidence to discharge the initial onus of proof then the burden shifted upon the accused to prove otherwise, which he failed to do in the present case—Prosecution had successfully proved its case against the accused beyond any shadow of reasonable doubt—Appeal against conviction was dismissed.

2021  PCrLJ  55   LAHORE-HIGH-COURT-LAHORE

State VS IKRAM ULLAH KHAN, DUTY MAGISTRATE 1ST CLASS

1. 9(c)—Criminal Procedure Code (V of 1898), Ss. 63 & 167—Discharge of accused—Complainant as investigating officer—Scope—Accused was arrested for recovery of 3800 grams of Charas from car driven by him—Duty Magistrate instead of sending accused to judicial lock up discharged him of the offence as complainant himself had investigated the case—Validity—No legal bar existed that complainant of case registered under Control of Narcotic Substances Act, 1997, could not be the investigating officer of that case—Functioning of police officer in a case of narcotics, in his dual capacity as a complainant and as an investigating officer, was neither illegal nor unlawful, so long as it did not prejudice the case of accused person—Question of prejudice (if any) could not be proved at the time of trial and an accused could not be discharged on such ground without recording of evidence by Trial Court—High Court set aside order passed by the Magistrate as the same was result of colourful exercise of his powers and was passed on the basis of extraneous reasons—High Court directed to take accused in custody and remanded the matter to Magistrate to decide application for judicial remand—Constitutional petition was allowed, in circumstances.

2021  PCrLJ  55   LAHORE-HIGH-COURT-LAHORE

State VS IKRAM ULLAH KHAN, DUTY MAGISTRATE 1ST CLASS

1. 9(c)—Qanun-e-Shahadat (10 of 1984), Art. 8—Name of informer, non-disclosure of—Scope—Police was legally not bound to mention name of informer (spy) in FIR—Police had legal protection to keep secret the name of informer (spy).

2021  PCrLJ  138   LAHORE-HIGH-COURT-LAHORE

ANSAR ABBAS alias PAKORI VS State

Ss. 9(c) & 9(b)— Possession of narcotics— Appreciation of evidence—Consolidated sample—Failure to weigh each slab of recovered substance (charas)—Effect—Accused was alleged to have been found in possession of 1062 grams of charas—Charas was recovered in the shape of three slabs as admitted by both the witnesses of recovery—Complainant, instead of taking separates samples of the recovered substance from each piece, had only taken one consolidated sample from the recovered substance and that too from one piece, which sample was subsequently tested and reported as positive by the Forensic Laboratory—Investigating Officer and the complainant had not weighed the three slabs of the recovered charas during the course of investigation—Similarly, during the trial the said three slabs of the recovered charas were not weighed separately—Prosecution case was not clear as to from which of the three slabs of the recovered charas, the sample parcel was prepared—Prosecution had only been able to prove that 100.57 grams of charas was recovered from the possession of the accused, that being the weight of charas which was received at the Forensic Laboratory—Accused was held liable to be responsible for having 100.57 grams of charas in his possession, which weight of recovered contraband attracted the provisions of S. 9(b) of the Control of Narcotic Substances Act, 1997—Appeal was partly allowed and the conviction of the appellant recorded by the Trial Court for an offence under S. 9(c) of the Control of Narcotic Substances Act, 1997 was converted into one under S. 9(b), in circumstances.

2021  MLD  1772   LAHORE-HIGH-COURT-LAHORE

NAEEM AHMAD VS State

S.9(c)—Possession of narcotics—Appreciation of evidence—Discrepancies and contradictions in statements of witnesses—Scope—Benefit of doubt—Prosecution case was that 212 maunds of charas in 425 plastic bags was recovered from the trailer of the accused persons—Complainant stated that he was using CIA vehicle on the day of occurrence while according to statement of recovery witness and Investigating Officer, he was using vehicle of Police Station—According to recovery witness, they had used electric scale for weighing the recovered charas as well as the samples thereof, but Investigating Officer stated otherwise that the charas was weighed on electric scale and the samples were weighed with “Takri Watta”—Recovery witness stated that the bags were of different colours as some were of white and the others were of blue colour but according to Head Constable/witness, some bags were of yellow colour and some were of white, whereas according to Investigating Officer, the colours of bags were of white yellow and all the bags were of same colours, which meant that no bag was of blue or white colour—Colour of bags and charas was not mentioned in FIR as well as recovery memos, even the bags were not taken into possession by the Investigating Officer and same were also not produced before the Trial Court at the time of recording evidence—Allegedly, 425 plastic bags were concealed under 3-Star Matches cartons and on checking of each bag 20 Kgs of charas, total 212 maunds, was recovered from the accused and out of all the bags of charas, 10/10 grams were separated for chemical analysis, which were 425 in number but according to the report of Forensic Science Agency, the number of submitted items counted to 427, which fact further created dent in the prosecution story—Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt—Appeal against conviction was allowed, in circumstances.

2021  MLD  1772   LAHORE-HIGH-COURT-LAHORE

NAEEM AHMAD VS State

S.9(c)—Possession of narcotics—Appreciation of evidence—Scope—Benefit of doubt—Original report of Government Analyst was not produced—Scope—Prosecution case was that 212 maunds of charas in 425 plastic bags was recovered from the trailer of the accused persons—Record showed that the original report of Forensic Science Laboratory was not tendered in evidence and instead its attested copy was placed on the record—As per general rule, in order to prove the contents of a document, its author was required to appear in the witness box—However, according to S.36 of the Act, a document purporting to be a report signed by government analyst is admissible in evidence even without calling him as a witness—In order to get benefit of S.36 of the Act, the prosecution was required to produce the original document and not its photocopy even if attested—In order to fill up the lacuna, the prosecution got examined Section Supervisor Narcotic Units, Forensic Science Agency as secondary witness to prove the contents of the Government Analyst Report, said witness during trial produced the attested photocopy of narcotic analysis report as according to him the original report in the case was dispatched on 21-04-2014 which reportedly was not received by the concerned submitting agency, thus, they had issued an attested copy of the original report according to the record of Forensic Science Agency, but the deposition of said witness who during his cross-examination admitted that neither the said report had been prepared by him nor the same contained his signatures in any capacity as a scribe, witness or supervisor—Witness also candidly admitted that he did not conduct the analysis of the samples, therefore, he was unable to state the whereabouts of the sample parcels sent in the case—Said witness was neither author nor signatory of the report, which aspect had further leaned to hold that the document was not brought on record in accordance with law and as such the same could not be considered in any manner—Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt—Appeal against conviction was allowed, in circumstances.

2021  MLD  1772   LAHORE-HIGH-COURT-LAHORE

NAEEM AHMAD VS State

S.9(c)—Possession of narcotics—Appreciation of evidence—Scope—Benefit of doubt—Safe custody and transmission of samples of the narcotic from police to Chemical Examiner not established—Effect—Prosecution case was that 212 maunds of charas in 425 plastic bags was recovered from the trailer of the accused persons—Investigating Officer stated that on 03-01-2014, he handed over the case property to Moharrar of police station—Prosecution also examined Head Constable/Moharrar, who stated that on 03-01-2014 Investigating Officer had handed over to him case property comprising of 425 sealed bags of charas and 425 sealed sample parcels thereof for keeping the same in safe custody of malkhana and on 17-01-2014, he handed over the sealed sample parcels of charas to a Constable for their onward transmission to the office of Forensic Science Agency, but according to the attested copy of report of the said agency, the parcels were not deposited therein on 17-01-2014, 18-01-2014 and 19-01-2014 rather the same were deposited on the fourth day i.e. 20-01-2014—Prosecution had absolutely no explanation to offer as to when the sample parcels were lying in the malkhana and were in safe custody of Moharrar/HC in the police station, then why Constable kept the same in his own room that too for almost four days—Though Constable had tried to cover-up that material illegality during cross-examination but he had no answer of his failure to deposit the sample parcels within reasonable period—Firstly, there was no occasion to remove such a large number of sample parcels from the malkhana and secondly there was no justification for Constable to keep the same unsafe in another office—Even otherwise, it was only an oral assertion and it was not clear as to where the sample parcels were kept from 17-01-2014 to 20-01-2014—In the trial, it was essential for the prosecution to establish by cogent evidence that alleged contraband seized from the possession of the accused by Investigating Officer was safely transmitted to the police station and thereafter it was kept in safe custody by Moharrar Malkhana from where the alleged sample parcels were transmitted to the Forensic Science Agency for chemical analysis but a complete chain of safe custody was absolutely missing in the case—Samples so deposited in the office of Forensic Science Agency, therefore, could not be tagged with samples taken from the substance seized from the possession of the accused—Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt—Appeal against conviction was allowed, in circumstances.

2021  MLD  1705   LAHORE-HIGH-COURT-LAHORE

SADDAM HUSSAIN alias BABU VS State

S.9(c)—Possession of narcotics—Appreciation of evidence—Prosecution case was that 1530 grams of charas was recovered from the possession of accused—Record showed that police got recovered contraband from his personal possession—Prosecution had proved the guilt of the accused beyond any reasonable doubt and had successfully discharged its burden through consistent and confidence inspiring evidence—Nothing was on record to suggest any ill-will or animosity against any of the prosecution witnesses—Prosecution case was further strengthened by the positive report of Forensic Science Agency—Consequently, the conviction of the accused recorded through the impugned judgment was maintained, however, sentence of the accused was reduced to the period already undergone by him, which would meet the ends of justice—Appeal was dismissed with said modification in sentence.

2021  MLD  1705   LAHORE-HIGH-COURT-LAHORE

SADDAM HUSSAIN alias BABU VS State

S.9(c)—Possession of narcotics—Appreciation of evidence—Sentence, quantum of—Scope—Prosecution case was that 1530 grams of charas was recovered from the possession of accused—While considering the nature of the substance being less harmful and dangerous as compared to the other narcotic substance like heroin etc, quantity of the recovered substance and other aspects that the accused was the first offender, behind the bars since his arrest i.e. 10-03-2019 and be given an opportunity to mend his ways, the sentence of the accused was reduced by the High Court to the period already undergone by him, which would meet the ends of justice, however, sentence of fine and imprisonment in default thereof shall remain intact—Appeal was dismissed with said modification in sentence.

2021  MLD  1674   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD JAHANGIR KHAN VS State

Ss.9 & 51(2)—Criminal Procedure Code (V of 1898), Ss.497—Possession of narcotic substances / drugs—Recovery of narcotic substance from accused—Borderline cases where quantum of recovered narcotic exceeds threshold by meagre amount—Post-arrest bail, grant of—Accused sought bail in case where accused had been charged under S.9(c) of Control of Narcotic Substances Act, 1997—Validity—Alleged recovery of 1170 grams of charas from accused only exceeded one kilogram by 170 grams, which put case of accused within ambit of a borderline case under S.9 of Control of Narcotic Substances Act, 1997—Extent to which accused committed alleged offence under S.9(c) of the Act was to be seen by Trial Court after recording of evidence and accused was not required for any further investigation, and thus case was one of further inquiry within meaning of S.51(2) of Control of Narcotic Substances Act, 1997—Accused was admitted to bail, in circumstances.

2021  MLD  1664   LAHORE-HIGH-COURT-LAHORE

State VS ZAHID LATIF

Ss. 9, 6, 2(s), 35, 36 & Sched.—Possession of narcotic substances / drugs—Psychotropic substance—Government Testing to determine nature of recovered substance—Report of analyst—Requisite protocols—Scope—Whatever name a substance was labelled as by a manufacturing company on the injection, tablets or syrup, was for purpose of trading and copyright protection, and could not eject such substance from definition of “psychotropic substance”—-Question as to whether material recovered from accused fell within definition of “psychotropic substance” was to be determined in accordance with Ss.35 & 36 of Control of Narcotic Substances Act, 1997, and report of analyst under the same, must contain all protocols of tests applied for examination of contrabands and application of such protocols was more essential when material recovered was “psychotropic substance” or controlled substance.

2021  MLD  1192   LAHORE-HIGH-COURT-LAHORE

ASIF KHAN VS State

S.9—Possession of narcotics—Punishment—Scope—Benefit of doubt—Provisions of Control of Narcotic Substances Act, 1997, provide stringent punishments, therefore, its proof has to be construed strictly and the benefit of any doubt in the prosecution case must be extended to the accused.

2021  MLD  1192   LAHORE-HIGH-COURT-LAHORE

ASIF KHAN VS State

Ss.9(c) & 36—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.5 & 6—Transportation of narcotics—Reports of Government Analysts—Result of test or analysis—Scope—Accused was alleged to have apprehended while transporting 40 kilograms of charas—Complainant stated that 36 packets of charas, each packet containing 12 lithers, total weighing 40 kilograms, were recovered from the gas cylinder of the car and from each lither, he separated 5/5 grams of charas for chemical analysis but when the case property was de-sealed in Court, the number of lithers contained in all the packets was found as 443 and total weight of the contraband came to 40 kilograms and 924 grams—Number of lithers were also different in each packet—Prosecution had failed to bring on record the individual weight of each packet of charas and lithers, which fact being irreconcilable went to the root of the case and badly damaged the case of the prosecution—High Court observed that it could not be determined whether the case property produced before the court was the same property which was taken into possession from the accused at the time of occurrence and subsequently handed over to Moharrar malkhana—Report of Chemical Examiner was vague since it did not show the nature of protocols observed and tests applied—Appeal against conviction was allowed, in circumstances.

2021  MLD  928   LAHORE-HIGH-COURT-LAHORE

RASHEED AHMED alias PAPPU BAYDEED VS State

S.9(c)—Possession of 1400 grams of charas—Appreciation of evidence—Benefit of doubt—Safe custody of contraband substance by police and transmission of samples to the Chemical Examiner not established—Effect—Prosecution case was that 1400 grams of charas was recovered from the possession of the accused—Official witness/constable while appearing in the dock stated in unequivocal terms that no entry in the Station Diary/Rozenamcha was made about the receipt of case property for placing in safe custody—Prosecution in such state of affairs, failed to prove the safe custody as well as the safe transmission of the alleged narcotic substance to the Forensic Science Laboratory—Failure of the prosecution to prove safe transmission was always regarded fatal for its case—Appeal against conviction was allowed, in circumstances.

2021  MLD  928   LAHORE-HIGH-COURT-LAHORE

RASHEED AHMED alias PAPPU BAYDEED VS State

S.9(c)—Qanun-e-Shahadat (10 of 1984), Art.129(g)—Possession of 1400 grams charas—Appreciation of evidence—Withholding material evidence—Effect—Prosecution case was that 1400 grams of charas was recovered from the possession of the accused—Record showed that the drafted complaint was sent to the police station through a constable for the registration of formal FIR—Though, said constable was an important witness to prove that the complaint was transmitted from the place of recovery to the police station, however, neither said constable was produced before the Trial Court nor his statement was recorded during investigation—Such omission gave rise to an inference that had said constable appeared before the Trial Court he would not have deposed in support of the prosecution case—Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt—Appeal against conviction was allowed, in circumstances.

2021  MLD  144   LAHORE-HIGH-COURT-LAHORE

KHURSHEED BIBI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51—Possession of narcotics—Bail, refusal of—Prompt FIR—Heinous nature of offence—Scope—Accused was alleged to have been found in possession of 2420 grams of charas—Sufficient incriminating evidentiary material existed in the shape of a prompt FIR, statements recorded under S. 161, Cr.P.C. and substantial quantity of the recovered contraband, to connect the accused with the alleged offence—Offence with which the accused was charged with being heinous in nature squarely fell within the four corners of the prohibition as contemplated by S. 51 of the Control of Narcotic Substances Act, 1997—Petition for grant of bail was dismissed, in circumstances.

2021  YLRN  131   LAHORE-HIGH-COURT-LAHORE

KHURRAM SHEHZAD VS State

1. 9(c)—Qanun-e-Shahadat (10 of 1984), Art. 129 (g)—Possession of narcotics—Appreciation of evidence—Safe custody and transmission of samples of the narcotic from the police to the Chemical Examiner not established—Effect—Accused was apprehended having a black colour shopping bag in his right hand containing charas weighing 1045 grams—Record showed that the complainant on the day of occurrence, after completion of recovery proceedings confined the accused in the lockup of the police station and handed over the case property to the Moharrer Malkhana—Said Moharrer Malkhana stated that complainant handed over to him two sealed parcels containing charas 110 grams and 93 grams, which were kept by him in malkhana in safe custody—Moharrer Malkhana, after two days handed over one sealed parcel said to containing charas weighing 110 grams to a Constable for its onward transmission to the office of Chemical Analysis but as per the report of Forensic Science Agency, said Constable deposited the sample parcel in the said agency for chemical analysis with the delay of two days—Said Constable/witness had also not been examined by the prosecution and was given up being unnecessary, hence non-production of the said material witness cast serious doubt on the prosecution case—Withholding of the important evidence in the peculiar circumstances of the case led to draw an adverse inference against the prosecution keeping in view Art. 129(g) of Qanun-e-Shahadat, 1984—Circum-stances proved that the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the sample taken from the recovered substance had safely been transmitted to the office of Forensic Science Agency—Safe transmission of the parcel said to contain charas became doubtful in circumstances—Appeal against conviction was allowed, in circumstances.

2021  YLRN  131   LAHORE-HIGH-COURT-LAHORE

KHURRAM SHEHZAD VS State

1. 9—Possession of narcotics—Chain of safe custody—Scope—Prosecution is obliged to establish that the chain of safe custody of the case property as well as the sample separated therefrom remained unbroken, unsuspicious, indubitable, safe and secure and any break in the chain of custody or lapse in the control of possession of the sample would cast doubts on the safe custody and safe transmission of the sample and would impair and vitiate the conclusiveness and reliability of the report of the Government Analyst.

2021  YLRN  56   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ASGHAR alias POONA VS State

1. 9(c)— Control of Narcotic Substances (Government Analyst) Rules, 2001, R.6—Recovery of narcotic substances—Appreciation of evidence—Report of Chemical Analysts—Protocols non-indication of—Per se admissibility—Principle—Chars weighing 1100 grams was allegedly recovered from accused—Trial Court convicted accused and sentenced him for 4 ½ years of imprisonment—Plea raised by accused was that report of chemical analysis was not proved in accordance with law therefore, could not be relied upon—Validity—Report did not indicate protocols applied to carry out the test, except concluding remarks, ‘blackish brown resinous material in sealed parcel contains Chars’—Mandatory requirements of law provided under R.6 of Control of Narcotics Substances (Government Analysts) Rules, 2001, were not complied with—High Court declined to rely upon such report as the same was neither a valid piece of evidence nor carried any sanction of law—High Court set aside conviction and sentence awarded to accused by Trial Court and acquitted him of the charge—Appeal was allowed in circumstances.

2021  PCrLJN  34   LAHORE-HIGH-COURT-LAHORE

Mst. NASREEN BIBI VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, grant of—Infant detained in jail along with mother (accused)—Completion of investigation—Non-availability of report of Chemical Examiner—Effect—Accused lady was alleged to have been found in possession of 1400 grams of charas—Contention of accused was that an infant aged about 2½ months was being detained in the jail along with her—Held; welfare of suckling child demanded that child should not be made to suffer in jail for the offence allegedly committed by his/her mother—Grant of bail did not amount to acquittal of the accused as the custody of accused was shifted from jail lock-up to the hands of sureties, who were made responsible to produce the accused before the court as and when required—Investigation had already been completed—Prosecution had not received the report of Chemical Examiner confirming the fact that contraband allegedly recovered from possession of the accused was in fact charas—Accused had never been previously involved in any criminal cases—Petition for grant of bail was allowed, in circumstances.

2021  PCrLJN  25   LAHORE-HIGH-COURT-LAHORE

KHADIM HUSSAIN VS State

Ss. 426 & 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Suspension of sentence pending appeal—Bail, grant of—Scope—Accused was alleged to have been found in possession of 1250 grams of charas—Accused had already served one year, three months and seventeen days out of his sentence of four years and six months—Remaining portion of sentence to be undergone by accused was short—Appeal filed by accused had not been decided despite lapse of four months and sixteen days—No prospect of early hearing of appeal existed—Accused, if not released on bail during pendency of appeal, was likely to serve his entire sentence—Sentence awarded to the accused was suspended and he was admitted to bail, in circumstances.

2021  PLD  105   LAHORE-HIGH-COURT-LAHORE

Mst. ASMAT PARVEEN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51—Possession of narcotics—Bail, grant of—Scope—Accused was alleged to have been found in possession of narcotics—Contention of accused was that two different FIRs were registered at the same police station within a span of ten minutes—First FIR was against her husband with regard to recovery of narcotic substance in front of his house while the other FIR was registered against the accused narrating the story that the charas was recovered from her and venue of recovery was mentioned as backside of the same house—Possibility of maneuvering false case implicating the accused in the case at the hands of complainant/local police could not be ruled out—Accused was a woman folk who was stated to be previous non-convict and behind the bars since the date of her arrest—Investigation being complete, person of the accused was no more required for further investigation—Sufficient grounds existed to interfere into the matter to grant relief of bail under S.51 subsection (2) of the Control of Narcotic Substances Act, 1997—Petition for grant of bail was allowed, in circumstances.

2021  YLR  984   KARACHI-HIGH-COURT-SINDH

MURAD ALI VS State

1. 9(c)—Possession of 13 kilograms charas—Appreciation of evidence—Chain of safe custody—Scope—Prosecution case was that 13 packets of hashish (charas) weighing 13 kilograms were recovered from a bag lying on the motorcycle of the accused and an amount of Rs.6500/- was recovered from the side pocket of his shirt—If the property (narcotics) was deposited at the earliest point of time with the police station and the same remained there from the date of recovery to the date on which the same was received with the Chemical Analyser, the chain of safe custody remained unbroken—Chain of safe custody began with the recovery of narcotics, it included the separation of sample and sealing the same on the spot and it should remain continuous and intact till its dispatch to the Chemical Analyser and received by him in the same sealed condition—Any break in the chain of custody or lapse in the control of the sample would cast doubt and also impair the conclusiveness of the report of the Chemical Analyser—Prosecution having established the offence appeal against conviction was dismissed, in circumstances.

2021  YLR  984   KARACHI-HIGH-COURT-SINDH

MURAD ALI VS State

1. 9(c)—Possession of 13 kilograms charas—Appreciation of evidence—Prosecution case was that 13 packets of hashish (charas) weighing 13 kilograms were recovered from a bag lying on the oil tank of motorcycle of the accused and an amount of Rs.6500/- was recovered from the side pocket of his shirt—In the present case, prosecution witness/Police Constable, the bearer of the narcotic, was examined but the defence counsel did not cross-examine that witness in a way, which might delink the continuity of the chain of safe custody—Statements of recovery witnesses were in line with each other and there was no motive for false involvement of the accused in the case, when a huge quantity of narcotic was recovered, which could not be foisted—Defence objected that Register No. 13 of the police station was not produced during the trial so also registration of FIR at PS “N” while the arrest and recovery were affected by the police party of PS “A”—Register of store-room (No.13) was least necessary in the present case—Admittedly, Police Station “A” was a newly established Police Station and till that time the FIR was registered at the parent Police Station on the administrative ground—Under S.27 of the Control of Narcotic Substances Act, 1997, the property was to be handed over to the nearest Police Station having requisite facilities and the records in respect of safe custody—Since such facilities were available at Police Station “N” but not at Police Station “A”, therefore, it was advisable that the said Police Station was approached regarding lodgment of FIR and using the store-room (malkhana) for keeping the recovered narcotic in safe custody—Appeal against conviction was dismissed, in circumstances.

2021  YLR  984   KARACHI-HIGH-COURT-SINDH

MURAD ALI VS State

1. 9(c)—Possession of 13 kilograms charas—Appreciation of evidence—Safe custody—Effect—Prosecution case was that 13 packets of hashish (charas) weighing 13 kilograms were recovered from a bag lying on the oil tank of motorcycle of the accused and an amount of Rs.6500/- was recovered from the side pocket of his shirt—Record showed that the prosecution witnesses had stated that the property was sealed on the spot and as per report of Chemical Analyzer the property was received in sealed condition which was sufficient to establish the chain of safe custody specially when no question was put by the defence in that regard—In the present case, entire property i.e. 13-kilograms hashish (charas) was sealed on the spot and sent to the Chemical Laboratory and the report of Chemical Analyzer indicated that the property was transited from the police station and received by the Chemical Analyzer on the same date, as such the continuity of the chain of safe custody was intact—Bearer of the property, in such circumstances, should necessarily be examined only in cases where some visible delay in transmission and reception of the property was observable so that it could be established that during such delay the property remained in the safe custody of authorized person or persons to eliminate any chance of manipulation and tampering with the property—Appeal against conviction was dismissed, in circumstances.

2021  YLR  550   KARACHI-HIGH-COURT-SINDH

NIAZ HUSSAIN VS State

Ss. 9(c), 25 & 29—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotics—Mode of making searches and arrest—Search to be made in presence of witnesses—Presumption from possession of illicit articles—Dispatch of sample for test or analysts—Scope—Accused was alleged to have been found in possession of 3040 grams of charas—Entire charas was sealed on the spot for sending the same to the Chemical Examiner—Case property was kept in malkhana on the same day—Police officials were nominated as mashirs due to non-availability of private persons—Writing Head Constable (WHC) had confirmed that he had kept case property in the malkhana and recorded such entry in the property register, which was duly produced—Sample-bearer had supported the prosecution case by stating that he was given the case property for depositing in the office of Chemical Examiner under roznamcha entry, which was also produced—Minor delay in sending the sample parcel to the office of Chemical Examiner was not fatal for the prosecution case as the rules to that effect were directory and not mandatory—Prosecution had discharged its initial onus while the accused had failed to discharge his burden in terms of S.29 of Control of Narcotic Substances Act, 1997—Appeal against conviction was dismissed, in circumstances.

2021  PCrLJ  1002   KARACHI-HIGH-COURT-SINDH

ZAIN ALI VS State

1. 9—Transportation of narcotics—Liability of driver—Scope—Person who is on the driving seat shall be responsible for transporting narcotics if found in his vehicle.

2021  PCrLJ  1002   KARACHI-HIGH-COURT-SINDH

ZAIN ALI VS State

Ss. 9(c), 29 & 25—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Criminal Procedure Code (V of 1898), S. 103—Transportation of narcotics—Presumption from possession of illicit articles—Mode of making searches and arrest—Search to be made in presence of witnesses—Scope—Accused was apprehended while transporting 563 kilograms of charas and 1.5 kilograms of opium which were recovered on his pointation from the secret cavities of the vehicle being driven by him—No question was put by the defence counsel to the witness during cross-examination that there was tampering with the case property at the police station or during transmission of the case property to the Chemical Examiner—Procedural details as mentioned in the Chemical Examiner’s report about the tests applied did not fall short of “protocol”—Version of the complainant was fully corroborated by mashir of arrest and recovery, which was substantiated with the memo of arrest and recovery, FIR as well as Roznamcha departure and arrival entry showing their movement—Police official was not prohibited under the law to be the complainant if he was a witness to the commission of an offence and also to be an Investigating Officer, so long as it did not in any way prejudice the accused person—Applicability of S. 103, Cr.P.C. in the narcotics cases was excluded and non-inclusion of any private witness was not a serious defect to vitiate the conviction—Prosecution had successfully discharged its duty thereby shifting the burden upon the accused within the meaning of S. 29 of the Control of Narcotics Substances Act, 1997—Appeal against conviction, being devoid of merits, was dismissed, in circumstances.

2021  PCrLJ  443   KARACHI-HIGH-COURT-SINDH

NASIR MAHMOOD VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotics—Bail, grant of—Further inquiry—Recovery of 2040 grams Charas—No private witnesses had been associated in spite of prior spy information received during patrolling of police party—Delay in sending the representative part for chemical examination required explanation, making a room for further probe—All the prosecution witnesses were police officials hence, there was no question of tampering with the evidence—Continuous detention of more than two months as well as minimum punishment could be considered while dealing with bail plea of the accused—Fact whether recovery of certain amount from the accused was his personal amount or proceeds from selling charas also required evidence at the time of trial—Accused had succeeded to bring his case within the purview of subsection (2) of S. 497, Cr.P.C.—Accused was admitted to bail, in circumstances.

2021  MLD  1351   KARACHI-HIGH-COURT-SINDH

ASSADULLAH VS State

S.9(c)—Possession of 08 kilograms of charas and 15 kilograms of heroin powder—Appreciation of evidence—Prosecution case was that 08 kilograms of charas and 15 kilograms of heroin powder were recovered from the Rickshaw driven by accused—Prosecution produced four witnesses in order to prove the charge against the accused—Record showed that the evidence of said witnesses had constituted an uninterrupted chain of facts ranging from seizure and forensic analysis of the contraband—Witnesses were in comfortable unison and all the salient features regarding interception of the huge quantity of chars as well as steps taken subsequently—Separation of samples for chemical analysis taken from each bundle was found as exercise sufficient to constitute forensic proof—At the time of arrest, the accused was driving the Rickshaw, thus, he was responsible for transportation of narcotics alleged to have been recovered from his possession—Report of Chemical Examiner had corroborated the evidence of all the Police Officials, who had stood in juxtaposition with the chemical report—Record showed that charas was recovered from the exclusive possession of the accused while he was present in Rickshaw and the recovered property was sent to the Chemical Examiner for analysis did not find any tampering with the sealed parcels of sample of the contraband so recovered from the accused, hence, the report of Chemical Examiner came positively—Minor discrepancies in the evidence of raiding party did not shake their trustworthiness—Admittedly, the accused was arrested by the police and from his possession a huge quantity of charas and heroin was recovered and it would be enough for a person of prudent mind as to how such a huge quantity of contraband, the cost whereof would be in million of rupees, could be foisted upon the accused—Said argument did not have any sanctity as the property viz. heroin and chars so recovered from the accused had been proved adequately by examining the evidence of Mashir, who appeared to have remained in corroboration with the Chemical Examiner’s report—Circumstances established that the prosecution had proved its case beyond any shadow of doubt—Appeal against conviction was dismissed accordingly.

2021  MLD  599   KARACHI-HIGH-COURT-SINDH

SARFRAZ AHMED VS State

Ss.6 & 9(c)—Possession and trafficking of narcotic substance—Appreciation of evidence—Prompt lodging of FIR—Effect—Prosecution case was that 17 kilograms of heroin powder was recovered from the vehicle of the accused—Record showed that FIR was registered with promptitude giving no time for concoction and statements under S.161, Cr.P.C. were recorded promptly which were not significantly improved upon by any witness at the time of giving evidence—Appeal against conviction was dismissed, in circumstances.

2021  MLD  599   KARACHI-HIGH-COURT-SINDH

SARFRAZ AHMED VS State

Ss.6 & 9(c)—Possession and trafficking of narcotic substance—Appreciation of evidence—Prosecution case was that 17 kilograms of heroin powder was recovered from the vehicle of the accused—Record showed that arrest and recovery was made on the spot and the accused was caught red-handed with the narcotic by the police and evidence of witnesses fully corroborated each other in all material respects as well as the prosecution case—In the present case, no enmity had been suggested against any of the police witnesses and as such the police had no reason to implicate the accused in a false case—Spy information about the car and its likely route, which was pointed out by the spy informer, fully corroborated the prosecution case, since that was the car in which the accused was stopped and arrested in whilst proceedings along the informed route and the narcotic was recovered along with the car—Said car was owned by the accused and he was the only person in the car and as such there was no doubt that the accused had actual knowledge of the narcotic which was being transported—Circumstances suggested that it would be extremely difficult to foist such a large amount of heroin—No delay in sending the samples for chemical analysis was found which turned out to be positive—Recovered narcotics were kept in safe custody from the time of their recovery to the time when they were taken for chemical analysis and no suggestion of tampering with the same had even been made—Narcotics were sealed/placed in stitched cloth bag on the spot, remained sealed in the malkhana before being transported to the Chemical Examiner and the narcotics reached the Chemical Examiner in a sealed condition as per the chemical report—All relevant police entries were duly exhibited—Circumstances established that the prosecution had proved its case against the accused beyond any doubt—Appeal against conviction was dismissed accordingly.

2021  MLD  599   KARACHI-HIGH-COURT-SINDH

SARFRAZ AHMED VS State

Ss.6, 9(c) & 25—Criminal Procedure Code (V of 1898), S.103—Possession and trafficking of narcotics substance—Appreciation of evidence—Prosecution case was that 17 kilograms heroin powder was recovered from the possession of the accused—No independent mashir was associated with the arrest and recovery of the accused and no private person was available to become an independent mashir at the time of arrest and recovery—Section 103, Cr.P.C., was excluded for offences falling under the Control of Narcotic Substances Act, 1997, by virtue of S.25 of the Act.

2021  MLD  267   KARACHI-HIGH-COURT-SINDH

ABDULLAH VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)—Possession of narcotics—Bail, refusal of—Positive report of Forensic Laboratory—Scope—Accused persons were alleged to have been found in possession of one kilograms of Methamphetamine Ice Crystal each—No enmity, ill-will or grudge was alleged against the prosecution witnesses, on the contrary, sufficient material was brought by the prosecution on the record including report of Chemical Examiner which showed that the samples were sent to the Forensic Laboratory on the very next day and the report was in positive, which was enough to dismiss the bail application—Petition for grant of bail was dismissed, in circumstances.

2021  MLD  218   KARACHI-HIGH-COURT-SINDH

ADNAN alias ADU through Senior Superintendent, Central Prison, Hyderabad VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Contradictory evidence—Non-production of sample-bearer—Scope—Accused was apprehended with 2120 grams of opium—Complainant had not associated any private person to witness the recovery proceedings, despite availability—Roznamcha entry and report of Chemical Examiner indicated different names of sample-bearers—None of the alleged sample-bearers was examined by the prosecution to establish safe transmission—Prosecution case was doubtful and its benefit went to the accused, not as a concession but as a matter of right—Prosecution could not prove its case against the accused—Appeal against conviction was allowed, in circumstances.

2021  MLD  218   KARACHI-HIGH-COURT-SINDH

ADNAN alias ADU through Senior Superintendent, Central Prison, Hyderabad VS State

1. 9—Possession of narcotics—Policy of sentence—Scope—Departure from sentencing policy is allowed but reasons for same must be given in the judgment.

2021  YLRN  70   KARACHI-HIGH-COURT-SINDH

ZOHAIB AHMED VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, grant of—Non-association of independent witnesses—Mala fide of police—Scope—Accused was alleged to have been found in possession of 1700 grams of charas—Contention of accused was that there had been a scuffle between boys at Government Staff Quarters; that the other party handed him over to the SHO of the concerned police station; that such news was also published; that the police demanded illegal gratification from the father of accused for his release but his father filed an application under S.491, Cr.P.C. and that during pendency of the said application police managed such false story and implicated him in a false narcotics case on the very next day—Held; no plausible explanation existed with the police regarding non-association of private persons despite their availability near the spot of recovery, which required serious consideration—Prosecution witnesses were police officials and to procure their attendance was not a difficult task but record reflected that the prosecution was not pursuing the trial actively and was delaying the proceedings without any legal justification—No apprehension of tampering with prosecution evidence existed—Accused had also drawn attention of the court towards an application under S.491, Cr.P.C. filed by father of the accused which clearly showed mala fide on the part of the police—Accused was admitted to bail.

2021  YLRN  42   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ISMAIL VS State

S.9—Possession of narcotic substances—Scope—Courts were supposed to adopt a dynamic approach and not to acquit the accused on technicalities.

2021  YLRN  42   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ISMAIL VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Possessing, trafficking of narcotics—Appreciation of evidence—Prosecution case was that 3.22 kilograms of heroin powder was recovered from the possession of accused—Prosecution witnesses were Police Officials—Defence had alleged that no private witness was associated at the time of recovery, which was violation of provision of S. 103, Cr.P.C.—Validity—In the present case, although no independent mashir was associated with the arrest and recovery of the accused, required under S. 103, Cr.P.C., however said section had been excluded for offences falling under the Control of Narcotic Substances Act 1997 by virtue of S.25 of said Act—Appeal against conviction was dismissed, in circumstances.

2021  YLRN  42   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ISMAIL VS State

Ss.6 & 9(c)—Possession of narcotics—Appreciation of evidence—Prosecution case was that 3.22 kilograms of heroin powder was recovered from the possession of accused—Record showed that the FIR was registered with promptitude giving no time for concoction and the statements under S.161, Cr.P.C. were recorded promptly which were not significantly improved upon by any witness at the time of evidence—No enmity had been suggested against any of the police/ANF witnesses, thus, their evidence was believable which was corroborative in all material respects—No major contradictions in the evidence of witnesses were found—Co-accused who was caught red-handed with the heroin had admitted his guilt and pleaded guilty at trial—Prosecution had proved its case beyond a reasonable doubt against the accused, in circumstances— Appeal against conviction was dismissed accordingly.

2021  YLRN  32   KARACHI-HIGH-COURT-SINDH

JAN MUHAMMAD VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Prosecution case was that nineteen kilograms charas was recovered from the secret cavity of the truck of accused persons—Record showed that the complainant and recovery witness despite lengthy cross-examination had stood at their version on all material points—In absence of any mala fide, said witnesses could not be disbelieved only for the reason that they were the Police Officials—None of the accused persons had claimed to be driver or cleaner of the truck containing contraband substance—Arrest and recovery of charas in a manner claimed by the prosecution was not denied by the accused—Substance, as reported by the Chemical Examiner, was not apparently disputed and was prepared within the time limit prescribed by the law—Nothing in law or procedure which could have prevented the complainant from conducting investigation of the present case—Memo of arrest and recovery was prepared by mashir, but it was done under the dictation of the complainant—No prejudice by such act was caused to either of the accused persons—No doubt, certain documents had been produced by the accused to create an impression that the complainant of the present case was having a criminal record but those documents could hardly be made helpful to the case of accused, simply for the reason that as per the complainant, he in those cases/ charges had either been acquitted or absolved of the charge on inquiry/investigation—Accused had failed to establish any prima facie mis-reading or non-reading of evidence on record or failure on part of the Trial Court in following the settled principles of law of appreciation of evidence—Trial Court had rightly found the accused persons to be guilty of the offence—Appeal against conviction was dismissed accordingly.

2021  PCrLJN  87   KARACHI-HIGH-COURT-SINDH

NISAR AHMED SHAH VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 6 & 4—Possession of narcotics—Despatch of sample for test or analysis—Report of result of test or analysis— Appreciation of evidence—Benefit of doubt—Safe custody—Delay in sending recovered contraband to Laboratory—Non-production of sample-bearer—Search to be made in presence of witnesses—Scope—Accused was alleged to have been found in possession of 1100 grams of charas—Columns showing seal parcel number and date were vacant in the report of Chemical Examiner—Samples were sent to the Chemical Examiner with a delay of one day and the prosecution had not succeeded in establishing the safe transmission after one day by detailing safe custody thereof during such period—Sample-bearer, who was assigned to hand over the case property for preparation of chemical report at the laboratory was not examined—Defective chemical report with failure to establish safe transmission of sample was sufficient to record acquittal—Record also showed that the accused was arrested during checking of vehicles but no independent person of the locality was associated to act as mashir—Prosecution case was not free from doubt—Appeal was allowed, in circumstances.

2021  PCrLJN  87   KARACHI-HIGH-COURT-SINDH

NISAR AHMED SHAH VS State

Ss. 9 & 36—Possession of narcotics—Reports of Government Analysts—Scope—Case for possession of narcotics can only be justifiable if the status of the recovered articles is shown to be ‘contraband articles’—Recovery of “some articles” does not make the accused liable for prosecution under the Control of Narcotic Substances Act, 1997 but possession of those articles only which have been detailed in the Control of Narcotic Substances Act, 1997 as ‘narcotics’—Positive and legal ‘chemical report’ is a ‘must’ for trial of one for such ‘charge’—Determination of status of ‘narcotics’ is never dependent upon words/claims of police officer but always requires certification by an expert—Positive and legal report alone would only make the charge justifiable but shall never be sufficient to record conviction because it only proves status of recovered articles and can never point out the person from whose possession or from where it was recovered.

2021  PCrLJN  87   KARACHI-HIGH-COURT-SINDH

NISAR AHMED SHAH VS State

Ss. 9 & 36—Possession of narcotics—Reports of Government Analysts—Burden of proof—Scope—Report of Chemical Examiner, if not prepared as required by law then it would not qualify as ‘conclusive proof’ of the recovered articles as narcotics—Absence of a conclusive proof of status of articles, claimed as narcotics, would never be safe to record conviction—Defective report would alone be sufficient to record an acquittal and if there is also a failure of prosecution in establishing safe transmission of sample then other merits of the case would be of no significance for prosecution to insist conviction—Proving of these two alone, however, would not be sufficient for conviction unless manner of recovery thereof is proved, least, initial burden is so discharged.

2021  PCrLJN  46   KARACHI-HIGH-COURT-SINDH

KHAN BADSHAH  VS State

Ss. 6 & 9(c)—Control of Narcotic Substances Act (Government Analysts) Rules, 2001, Rr. 4 & 5—Possession and trafficking of narcotics—Delay in sending samples of contraband for chemical analysis—Effect—Prosecution case was that 25 kilograms heroin was recovered from the vehicle of accused persons—In the present case, there was 2 to 3 days delay in sending the recovered narcotics for chemical analysis, however, such delay had been explained in the evidence—Rules as to when material was to be sent for chemical examination were directory and not mandatory—Appeal against conviction was dismissed, in circumstances.

2021  PCrLJN  46   KARACHI-HIGH-COURT-SINDH

KHAN BADSHAH  VS State

Ss. 6 & 9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession and trafficking of narcotics—Appreciation of evidence—Non-association of private witnesses—Effect—Evidence showed that no private person was ready/prepared to become mashir at the time of arrest and recovery despite being asked—Even otherwise S. 103, Cr.P.C., was excluded for offences falling under the Control of Narcotic Substances Act 1997, by virtue of S. 25 of the Act—Appeal against conviction was dismissed, in circumstances.

2021  PCrLJN  46   KARACHI-HIGH-COURT-SINDH

KHAN BADSHAH  VS State

Ss. 6 & 9(c)—Possession and trafficking of narcotics—Appreciation of evidence—Prosecution case was that 25 kilograms of heroin narcotic contraband stuff was recovered from the vehicle of accused persons—Record showed that the accused were caught red handed with the narcotics by the police whose evidence fully corroborated in all material respects—No enmity had been suggested against any of the police witnesses—Spy information about the type of car and its registration number and its route fully corroborated the prosecution case—First Information Report was also registered with promptitude giving no time for concoction—Statements under S. 161, Cr.P.C. were recorded promptly—No major contradictions in the evidence of the witnesses was found—Narcotics were recovered from the front seat of the car where one co-accused was sitting whilst the other co-accused was driving the vehicle and as such accused had actual knowledge of the narcotics which were being transported—Car was recovered along with its key and the narcotics—Circumstances suggested that it would be extremely difficult to foist such a large amount of heroin being in total 25 kilograms—Defence objected that the Chemical Examiner was not qualified to carry out the chemical examination of the recovered heroin and as such the chemical report could not be safely relied upon—Chemical Examiner had explained that he was more than qualified to carry out the chemical test and that all necessary protocols were applied and that the chemical report was positive—Recovered narcotic was kept in safe custody from the time of their recovery to the time when they were taken for chemical analysis and no suggestion of tampering with the same had even been made—Prosecution had proved its case beyond a reasonable doubt against the accused persons, in circumstances—Appeal was dismissed, in circumstances.

2021  PCrLJN  40   KARACHI-HIGH-COURT-SINDH

BAKHTIAR ALI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Police witnesses—Scope—Evidence of a police witness was as reliable as any other witness provided that no enmity existed between them and the accused.

2021  PCrLJN  40   KARACHI-HIGH-COURT-SINDH

BAKHTIAR ALI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Prosecution case was that thirteen and half kilograms heroin was recovered from the accused and twelve kilograms heroin was recovered from the possession of co-accused—Record showed that the FIR was registered with promptitude giving no time for concoction and statements under S. 161, Cr.P.C. were recorded promptly—Accused were caught red handed with the narcotics by the police whose evidence fully corroborated each other in all material respect—No enmity had been suggested against any of the police witnesses, as such the police had no reason to implicate the accused in a false case—Evidence of police witnesses which was corroborative in all material respects was therefore believable—No major contradictions in the evidence of the witnesses was found—Under S. 29 of Control of Narcotic Substances Act, 1997, once the recovery has been proved as in the present case the onus shifted to the accused to show his innocence in that at least he had no knowledge of the narcotics—Accused had not been able to do so in the case as the evidence showed that the narcotics were recovered from them on the spot—No delay had occurred in sending samples for chemical report, which turned out to be positive—Even a second chemical analysis was carried out which again proved positive and even the Chemical Examiner was called as court witness, who was examined at length and he fully supported the prosecution case that the recovered narcotics were heroin and that all necessary protocols were carried out in connection with the chemical analysis of the narcotics—Said witness was cross-examined at length but the defence was not able to put a single dent in his evidence—Facts suggested that it would be extremely difficult to foist such a large amount of heroin—Recovered narcotics were kept in safe custody from the time of recovery to the time when samples were taken for chemical analysis and no suggestion of tampering with the same had even been made—Narcotics were sealed on the spot, remained sealed in the Malkhana before being transported to the Chemical Examiner in a sealed condition as per the chemical report—In court in such cases was supposed to adopt a dynamic approach and not to acquit the accused on technicalities—Accused persons did not give evidence on oath and did not call any witness in support of their defense—Circumstances established that the prosecution had proved its case beyond reasonable doubt—Appeal against conviction was dismissed, in circumstances.

2021  PCrLJN  40   KARACHI-HIGH-COURT-SINDH

BAKHTIAR ALI VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotics—Appreciation of evidence—Non-association of private witnesses—Effect—Prosecution case was that thirteen and half kilograms heroin from accused and twelve kilograms heroin from the possession of co-accused were recovered—No independent mashir was associated with the arrest and recovery of the accused but it had come in evidence that no private person was willing to become (independent) mashir at the time of arrest and recovery—Section 103, Cr.P.C., had been excluded for offenses falling under the Control of Narcotic Substances Act 1997 by virtue of S. 25 of the Act—Appeal against conviction was dismissed, in circumstances.

2021  YLR  416   ISLAMABAD

MUKHTAIR AHMED VS State

1. 9(c)—Narcotic substance, recovery of—Appreciation of evidence—Sentence, reduction—Quantity of narcotics—Determination—Charas packed in 226 packets was recovered from secret cavities of vehicle in which accused was present—Each packet contained three (3) slabs of Charas and 10 grams of Charas was taken as sample from each packet—Slabs from which samples were taken had not been separately weighed and weight of each slab could not be determined with precision—If sample from each slab could have been taken, the matter would have been different—If each slab from which sample was taken was weighed and their weight was more than 10 kilograms, there would have been no reason to alter sentence awarded by Trial Court—High Court disapproved the mode adopted by Trial Court for determining weight of each of the 226 packets from which samples were taken—High Court converted sentence of imprisonment for life into one already served by accused as quantity of Charas recovered from the possession of accused did not exceed 10 kilograms—Appeal was dismissed accordingly.

2021  YLR  27   ISLAMABAD

NIZABAT MEHMOOD VS State

1. 9(b)—Narcotic substance, recovery of—Appreciation of evidence—Safe transmission—Proof—Benefit of doubt—Chars Garda weighing 2000 grams was alleged to have been recovered from the possession of accused—Discrepancies in testimonies of two prosecution witnesses, non-producing of police official to prove safe transmission of parcel to the office of Chemical Examiner and non-separation of samples from each piece were matters of concern and collectively incredulity—Prosecution failed to establish case against accused beyond reasonable doubt—Material contradictions existed in statements of prosecution witnesses, which rendered the case doubtful—Safe transmission of alleged recovered contraband was also not established—High Court set aside conviction and sentence awarded to accused by Trial Court and acquitted him of the charge—Appeal was allowed, in circumstances.

2021  PCrLJ  1520   ISLAMABAD

ANTI-NARCOTICS FORCE (ANF), REGIONAL DIRECTORATE (NORTH) RAWALPINDI VS MUHAMMAD WASEEM

1. 540—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Recovery of narcotics—Summoning of Chemical Analysis Expert as witness—Dismissal of prosecution application for summoning of Chemical Expert—Scope—Admittedly, the report must contain three ingredients i.e. the test applied, the protocols applied to carry out those test and lastly, the result thereof—If the report contained the said three ingredients then any ambiguity could be resolved by exercising the power vested in a court under the proviso to S. 510, Cr.P.C.—Report, in the present case, referred to the protocols applied and the result of the test—Said report did not mention the nature of the test applied, but a plain reading of the report, unambiguously showed that it was implicit therein that the test was conducted—Trial Court was not precluded from summoning the Government Analyst along with the existing record to tender evidence for removing the ambiguity and to give clarification—What the Government Analyst was barred from doing was to conduct a fresh test or to alter or change the report—Record could not be tampered with nor any addition could be made thereto—Section 540 of the Cr.P.C was an independent and distinct provision which empowered a Trial Court to summon a witness provided the legislative intent expressly mentioned therein was fulfilled, i.e. if it appeared to the court that summoning of the evidence was essential to the just decision of the case—Said provision was distinct from and in addition to the power contained in the proviso to S. 510 of the Cr.P.C.—Trial Court, therefore, in the present case, was empowered to consider the application and passed an order, even if one of the ingredients had been omitted from being recorded in the report—Appeal was allowed with direction to the Trial Court to decide the application afresh after affording an opportunity of hearing to the parties.

2021  PCrLJ  1294   ISLAMABAD

ZEENAT ALI VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001,R. 4(2)—Possession of 1382 grams of charas—Appreciation of evidence—Benefit of doubt—Delay in sending the substance for analysis—Scope—Accused was charged that 1382 grams of charas was recovered from the possession of accused—Record showed that the contraband was sent for chemical examination after unexplained delay of 9 days—Though, as per R. 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, that exercise was required to be completed within 72 hours of the recovery and for that purpose, there was no plausible explanation from the prosecution side as to why such inordinate delay was caused in completion of that exercise by the Investigating Officer—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was allowed, in circumstances.

2021  PCrLJ  1294   ISLAMABAD

ZEENAT ALI VS State

1. 9(c)—Possession of 1382 grams of charas—Appreciation of evidence—Benefit of doubt—Accused was charged that 1382 grams of charas was recovered from the possession of accused—Head Constable/witness was subordinate of the complainant—No third party/independent person from or while going towards the place of incident was picked up to act as mashir of arrest and recovery, thus, it was a case of insufficient evidence—Constable/eye-witness, who took the written complaint/Istighasa from the place of occurrence to police station for registration of FIR and brought back the FIR after its registration, had not been produced as a witness during the trial—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was allowed, in circumstances.

2021  PCrLJ  1294   ISLAMABAD

ZEENAT ALI VS State

1. 9(c)—Possession of 1382 grams of charas—Appreciation of evidence—Benefit of doubt—Complainant as Investigating Officer—Effect—Accused was charged that 1382 grams of charas was recovered from the possession of accused—In the present case, the complainant had himself conducted the investigation of the case, however, the person who was complainant of the case in order to keep all fairness of thing could not investigate the same case, which must be investigated by an independent officer but not by the complainant himself—Investigation by complainant while functioning as Investigating Officer is a biased investigation—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was allowed, in circumstances.

2021  PCrLJ  1294   ISLAMABAD

ZEENAT ALI VS State

12. 9(c)—Possession of 1382 grams of charas—Appreciation of evidence—Benefit of doubt—Contradictions in complaint and FIR—Scope—Accused was charged that 1382 grams of charas was recovered from the possession of accused—Record showed that in FIR, date and time of occurrence was mentioned as at 12.45 p.m. and date of report was mentioned as 28.01.2018 at 01:05 p.m. but in the complaint the complainant/Investigating Officer had mentioned the time of occurrence as 12.15 p.m.—No explanation had been given regarding the contradictions in complaint and FIR—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal against conviction was allowed, in circumstances.

2021  PCrLJ  631   ISLAMABAD

MUHAMMAD NAFEES VS State

1. 9—Possession of narcotics—Safe custody—Scope—Proving unbroken chain of safe transmission of the sample parcels is necessary for conviction in narcotic cases because the recovery is not just a corroboratory piece of evidence rather constitutes the charge having punishment and if unbroken chain of safe custody has not been established, it would be considered grave and fatal for the prosecution case—Prosecution has to prove safe custody from the point of recovery till its submission by way of samples to the Laboratory.

2021  PCrLJ  631   ISLAMABAD

MUHAMMAD NAFEES VS State

S.9—Possession of narcotics—Safe custody—Duty of prosecution—Scope—Role of prosecution requires great responsibility and prosecution has to prove its case beyond doubt on every important aspect—Preservation of separated samples from recovered drug and its safe transmission to the Malkhana and onward deposit in the office of Chemical Examiner for report without any flaw is most important phenomena in the narcotic cases—Said requirement is so mandatory that the Supreme Court in such cases has used the word “must” instead of “may” or “shall”.

2021  PCrLJ  631   ISLAMABAD

MUHAMMAD NAFEES VS State

Ss. 9(c) & 15—Possession of narcotics—Aiding, abetment or association in narcotic offences—Appreciation of evidence—Safe custody—Contradiction in evidence—Scope—Accused persons were alleged to have been found in possession of charas—Sample-bearer stated that he received three samples on 16-05-2018 from the Moharrir, deposited them in the Forensic Laboratory on the same day whereas report of Forensic Laboratory showed the date of receipt of parcels as 17-05-2018—Prosecution throughout the trial did not question the said entry rather relied upon the report to substantiate that the recovered substance was charas—Prosecution had failed to establish the unbroken chain of transmission of sealed sample parcels to the office of Forensic Laboratory—Appeals against conviction were allowed, in circumstances.

2021  PCrLJ  18   ISLAMABAD

NAJEEB ULLAH VS State

1. 9(c)— Narcotic substance, recovery of—Appreciation of evidence—Administration of justice—Juvenile offender—Sentence, quantum of—Scope—Charas weighing 1100 grams was recovered from accused who was juvenile at the time of offence—High Court observed that if offence was committed at the verge of juvenility, it had far reaching consequences upon future of an offender—Every sentence had a purpose though the way in which it was to be accomplished could vary or differ—Case of a repeater or habitual offender where probability of reformation was little and case of first time novice offender, where he/she had regret wrongdoing, such two cases could not be measured on same yardsticks and the latter case deserved a lenient view—High Court reduced sentence of accused to one already undergone as he was first offender and of the age less than eighteen years at the time of occurrence—Appeal was dismissed in circumstances.

2021  MLD  738   ISLAMABAD

RAFAQAT KHAN  VS State

S.9(c)—Possession of 1140 grams charas—Appreciation of evidence—Benefit of doubt—Prosecution case was that 1140 grams charas was recovered from the possession of accused—Record showed that the complainant/Investigating Officer in his examination-in-chief stated the story as mentioned in the FIR—Witness was subjected to cross-examination wherein he admitted that he had not mentioned in his examination-in-chief that the recovered charas was weighed in the presence of witnesses and that he had not mentioned the colour of the charas—Recovery witness had not given the details of the proceedings that had taken place on the spot, statedly conducted by the Investigating Officer—Defence questioned the said witness regarding the non-mentioning of the details but instead of elaborating the same, he admitted that he had not mentioned that from where the charas had been recovered; what was its colour; at what time they reached the spot and that whether the Investigating Officer recorded his statement at the spot or otherwise—No detail was available as to whether charas recovered from the accused was weighted in his presence—No detail of such recovery, its weight in the presence of recovery witness having been given, the same negated the case of prosecution—Not only the statement of Investigating Officer was discrepant with regard to the proceedings of weighing the charas in presence of witnesses but the testimony of Investigating Officer did not lend corroboration to the statement of recovery witness regarding material aspects—Said recovery witness had no knowledge that whether the Investigating Officer recorded his statement on the spot or not—Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt—Appeal against conviction was allowed, in circumstances.

2021  MLD  195   HIGH-COURT-AZAD-KASHMIR

JABIR HUSSAIN alias BABAR BUTT VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51—Possession of narcotics—“Bail not to be granted in respect of certain offences”—Scope—Bail, refusal of—Positive report of Chemical Examiner—Scope—Accused was alleged to have been found in possession of 5 kilograms of charas—Accused was directly charged in the FIR—Sample so separated from the recovered contraband was examined by Chemical Examiner, whose positive report was available on file—Offence under S.9(c), Control of Narcotic Substances Act, 1997, not only fell within the prohibitory clause of S. 497, Cr.P.C., but also came under S.51 of Control of Narcotic Substances Act, 1997, wherein a specific embargo was imposed on grant of bail—No reasonable grounds existed for believing that the accused was not involved in the alleged offence—Appeal against bail declining order was dismissed, in circumstances.

2021  YLR  583   Gilgit-Baltistan Chief Court

IMRAN ULLAH VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, grant of—Further inquiry—Recovery of 2000 grams of Charas—Period of about 2 months had elapsed but report of Chemical Examiner had not yet been received by the police—Both the accused were boarded in the same vehicle from which the contraband Charas was recovered—Joint recovery memo was not admissible in evidence—Complainant being Head Constable was not competent to arrest the accused persons and search their vehicle—Under S.21 of the Control of Narcotic and Substances Act, 1997, an officer not below the rank of Sub-Inspector could search, seize and arrest the accused without warrant—Accused persons were admitted to bail, in circumstances.

2021  MLD  1129   Gilgit-Baltistan Chief Court

NADIR HUSSAIN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, grant of—Non-availability of report of Chemical Examiner—Non-submission of challan—Effect—Accused was alleged to have been found in possession of 12500 grams of charas—Report of Chemical Examiner was awaited and without the same no expert opinion could be rendered—Non-submission of challan within mandatory period of 17 days had further made the case as one of further inquiry—Accused was admitted to bail, in circumstances.

2020  SCMR  2017   SUPREME-COURT

MUHAMMAD IRFAN VS State

1. 497(5)—Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), S. 6—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51—Possession of 12 kilograms of cannabis—Bail, cancellation of—Anomalies in bail granting order—On a tip off, the accused, accompanied by the co-accused, were intercepted by a contingent of Anti Narcotic Force—Upon search, a substantial cache of cannabis, weighing 12 kilograms, stealthily concealed underneath the rear seat of the vehicle, driven by them, was recovered, a portion whereof, was wrapped around the belly of co-accused—High Court granted bail to co-accused, whereas accused was denied bail despite pleading the principle of consistency—Held, that the co-accused was equally disentitled to be released on bail in view of the merits of the case that manifested interception of both the accused and co-accused in a vehicle carrying a substantial quantity of the contraband, craftily concealed and recovered on disclosures, by both of them, from underneath the seat inside the cabin as well as wrapped around the body of co-accused, bringing their case within the ‘prohibition’ provided under S. 51 of the Control of Narcotic Substances Act, 1997—Failure by the police contingent to register the case under the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, an error open to rectification, did not by itself mitigate the enormity of the crime nor possibly furnish a ground for their release on bail—Overwhelming evidence, prima facie pointed, equally upon both the accused and co-accused, admitting no space to contemplate any distinction and as such did not allow to countenance the error in granting bail to co-accused—Bail granted to co-accused was cancelled, whereas petition for leave to appeal filed by accused for his release on bail was dismissed and leave was refused.

2020  SCMR  1859   SUPREME-COURT

ABBAS RAZA VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of 1300 grams of opium—Bail, grant of—Allegation against the accused was that he was selling opium from a Baithak adjacent to his house in late hours of the night (12:50 a.m.) in the month of February—In the month of February, when the weather was cold, selling of narcotics while sitting in a “Baithak” seemed to be something astonishing, when there was remote possibility of attracting any customer at such odd time—Even otherwise accused was alleged to be selling “opium”, a contraband the use of which affected the central nervous system of the user, pouring negative impact in the body while making the user dull, depressed, of impaired reflexes, lacking sharpness, turning the user into a sluggish entity—All said aspects when evaluated conjointly, lent support to the argument of the accused qua prosecution story being result of fabrication—Petition for leave to appeal was converted into appeal and allowed and accused was admitted to post-arrest bail.

2020  SCMR  1257   SUPREME-COURT

MUHAMMAD NOMAN MUNIR VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51—Possession of cannabis and heroin—Bail, refusal of—Cannabis weighing 1380 grams and heroin weighing 07 grams recovered from the possession of accused squarely fall within the mischief of S. 9(c) of Control of Narcotic Substances Act, 1997 that attracted prohibition embodied in S. 51 of the said Act—Insofar as non-association of a witness from the public was concerned, people did collect at the scene, and despite request from police abstained to assist the law and such fact was mentioned in the crime report itself—Such conduct of public was usual and symptomatic of societal apathy towards civic responsibilities—Even otherwise, the witnesses being members of the police contingent and functionaries of the State were second to none in their status, with statutory presumption that their acts were, prima facie, intra vires—Accused was rightly refused bail by courts below—Petition for leave to appeal was dismissed and leave was refused.

2020  SCMR  1222   SUPREME-COURT

MATTI ULLAH VS State

1. 9—Possession of narcotic—Lack of public witnesses—Testimony of police officials/Anti-Narcotics Force officials—Admissibility—Reluctance by the public to stand in aid of law was symptomatic of abysmal civic apathy which could not be allowed to be used as an escape route from justice— Being functionaries of the State, officials of Anti-Narcotics Force were second to none in status; their official acts and declarations were statutorily presumed as intra vires unless proved contrarily—In the absence of any flaw or discrepancy in their depositions, their testimony could not be conditioned by additional riders.

2020  SCMR  1222   SUPREME-COURT

MATTI ULLAH VS State

1. 6—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of cannabis— Reappraisal of evidence— Report of Government Analyst—Protocols/procedure—Scope—In the present case the Forensic report sufficiently detailed tests applied for determination of narcotic character of the contraband, carried out on the samples transmitted from safe custody and as such was not violative of ‘protocol’ directed by the Control of Narcotic Substances (Government Analysts) Rules, 2001—Conviction and sentence of accused under S. 9(c) of the Control of Narcotic Substances Act, 1997 were maintained—Petition for leave to appeal was dismissed.

2020  SCMR  1222   SUPREME-COURT

MATTI ULLAH VS State

1. 9(c)—Possession of 7200 grams of cannabis—Reappraisal of evidence—Prosecution case was primarily structured upon the statements of official of the Anti-Narcotic Force, who had statedly acted on a tip off to confront the accused at the designated point; they subdued the accused with the contraband and a motorbike, both secured vide inventory of even date—Cache of narcotics weighing 7200 grams could not be viewed as an insignificant quantity—During the cross-examination of the witnesses no flaw or discrepancy was pointed out in their narratives either on salient features of the case or matters collateral therewith; they were in a unison that inspired confidence and, thus, absence of support from the public did not diminish value of their testimony—Story of substitution of accused and making him a scapegoat was unlikely, as the accused was a member of the Frontier Constabulary and there appeared no earthly reason for the officials to hound the accused with no axe to grind in a crowded metropolis with a cache substantial enough in volume as well as cost—Conviction and sentence of accused under S. 9(c) of the Control of Narcotic Substances Act, 1997 were maintained—Petition for leave to appeal was dismissed.

2020  SCMR  1000   SUPREME-COURT

ASMAT ALI VS State

1. 9(c)—Possession of 9600 grams of cannibas—Reappraisal of evidence—Statements of recovery witnesses (police officials) were in tune with each other with no apparent motive to implicate the accused on a false charge—Substantial quantity of the contraband ruled out a manipulated recovery—Accused, who was driving the truck in question, in his bid to disproof the charge, admitted most parts of the events that took place on the day of incident except for an obvious denial regarding possession of narcotic in the truck—Accused was rightly convicted and sentenced by the Trial Court under S. 9(c) of the Control of Narcotic Substances Act, 1997—Petition for leave to appeal was dismissed and leave was refused.

2020  SCMR  1000   SUPREME-COURT

ASMAT ALI VS State

1. 6—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Report of Government Analyst—Protocols/ procedure—Scope—Where forensic report conclusively established the narcotic character of the substance with sufficient details regarding the test carried out, the insufficiency of protocols mentioned in the said report was not consequential.

2020  SCMR  687   SUPREME-COURT

Haji NAWAZ VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 342—Possession of narcotic—Reappraisal of evidence—Statement of accused recorded under S. 342, Cr.P.C.—At the time of recording the accused’s statement under S. 342, Cr.P.C. the positive report of the Forensic Science Laboratory had not been put to him at all—If a piece of evidence or a circumstance was not put to an accused person at the time of recording his statement under S. 342, Cr.P.C.. then the same could not be considered against him for the purpose of recording his conviction—Appeal was allowed and accused was acquitted of the charge.

2020  SCMR  687   SUPREME-COURT

Haji NAWAZ VS State

1. 9(c)—Possession of narcotic—Reappraisal of evidence—Safe custody of the recovered substance at the police station or safe transmission of the samples of the recovered substance from the police station to the office of the Chemical Examiner not established—Effect— Conviction could not be recorded in such circumstances.

2020  SCMR  687   SUPREME-COURT

Haji NAWAZ VS State

1. 9(c)—Possession of narcotic—Reappraisal of evidence—Benefit of doubt—Conscious possession of narcotic—According to the prosecution’s own showing the accused was merely a passenger sitting on the passenger seat of the relevant vehicle at the time of the raid and recovery—Alleged narcotic substance was recovered from underneath some seats of the vehicle and its trunk—Accused might be the owner of the vehicle but at the relevant time his conscious possession of the narcotic substance had to be established by the prosecution, particularly when the vehicle was in control of the driver who had escaped, but the prosecution had completely failed in such regard—Prosecution had failed to prove its case against the accused beyond reasonable doubt—Appeal was allowed and accused was acquitted of the charge by extending the benefit of doubt to him.

2020  SCMR  474   SUPREME-COURT

MUSHTAQ AHMAD VS State

1. 6—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Report of Government Analyst—Government Analyst, summoning of—Scope—Rule 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001, being directory in nature, did not preclude an accused to summon the Government Analyst so as to solicit specific details, if any, required by him to vindicate his position.

2020  SCMR  474   SUPREME-COURT

MUSHTAQ AHMAD VS State

1. 9(c)—Possession of 1460 grams of charas (narcotic)—Reappraisal of evidence—Prosecution case hinged upon statements of two witnesses who were police officials—Said witnesses did not have any enmity with the accused, who was intercepted at a public place during routine search by the police—Narcotic, considerable in quantity, could not possibly be foisted upon the accused to fabricate a fake charge, that too, without any apparent reason—While furnishing evidence, both the witnesses remained consistent throughout and their evidence was confidence inspiring—High Court had rightly convicted the accused under S. 9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to 4 years imprisonment with fine—Petition for leave to appeal was dismissed and leave was refused.

2020  SCMR  474   SUPREME-COURT

MUSHTAQ AHMAD VS State

1. 6—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Report of Government Analyst—Protocols/procedure—Scope—Substantial compliance with R. 6 of the Control of Narcotic Substances (Government Analysts) Rules 2001 (‘Rule 6’)—Said Rule required reference to the test applied for analysis of narcotic—Forensic report in the present case substantially met the legal requirements of Rule 6 as it contained a separate heading with the title “”Test Performed on Received Item(s) of Evidence”—Details mentioned in the forensic report regarding procedure/ tests applied did not fall short of the requirement of ‘protocol’ under R. 6—Petition for leave to appeal was dismissed and leave was refused.

2020  SCMR  460   SUPREME-COURT

SHAZIA BIBI VS State

1. 6—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Report of Government Analyst—Protocols/procedure—Scope—Substantial/sufficient compliance with R. 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 (‘Rule 6’)—Plea on behalf of accused that forensic report in the present case did not mention the details of protocols used, as such the nature of contraband was never established—Held, that tests carried out by the analyst were vividly mentioned in his report, under the heading “Test Performed on Received Item(s) of Evidence” followed by the heading “Results and Conclusions”—Said details in the forensic report substantially/sufficiently qualified to meet the statutory requirements under R. 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001—Conviction of accused under S. 9(c) of Control of Narcotic Substances Act, 1997 was maintained—Petition for leave to appeal was dismissed.

2020  SCMR  460   SUPREME-COURT

SHAZIA BIBI VS State

1. 9(c)—Possession of four kilograms of cannabis—Reappraisal of evidence—Accused lady was apprehended from within a public vehicle and found in possession of 4 kgs. of cannabis—Plea of accused that she had been targeted as a scapegoat by the police, who had enmity with her husband—Held, that quantity recovered from accused was substantial in volume/weight, which could not possibly be foisted upon a female to victimize her husband, who himself was the most suitable target, if at all the police had an axe to grind against him—Evidence of all the prosecution witnesses including those of recovery was in tune with one another—Soon after her arrest, the accused was produced before a Magistrate who remitted her into judicial custody, but the accused did not raise any protest at such opportune occasion, and her silence went a long way to rebut the belatedly related story that otherwise may not be plausible—Conviction of accused under S. 9(c) of Control of Narcotic Substances Act, 1997 and resultant sentence of four years’ imprisonment with fine of Rs. 20,000 was upheld—Petition for leave to appeal was dismissed.

2020  SCMR  444   SUPREME-COURT

KHAN ZEB VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic—Bail, grant of—Further inquiry— Passenger onboard a vehicle containing narcotics—Connection between driver of vehicle and passenger not established—No investigation was carried out nor any data was collected to establish any connection or relationship between the accused-passenger and the driver of the vehicle wherein narcotic was found—Accused being a passenger in the vehicle and no connection, prima facie, having come on record between him and the driver, a case for further inquiry was made out—Accused was granted bail in circumstances.

2020  SCMR  431   SUPREME-COURT

MURAD KHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(b)—Possession of narcotic—Accused was driving a motorcar when he was stopped at a picket and on his pointation, one packet of 600 grams heroin was recovered from the secret cavity of the car, out of which one gram heroin was separated and was sent to the Forensic Science Laboratory for chemical examination—Report of the Forensic Science Laboratory was still awaited—Moreover, the case of the accused fell within the purview of S. 9(b) of the Control of Narcotic Substances Act, 1997, wherein maximum punishment was provided as seven years and fine—Accused was behind the bars for more than three months and no useful purpose would be served by keeping him behind the bars for an indefinite period—Accused was granted bail in circumstances.

2020  SCMR  404   SUPREME-COURT

FAZAL WAHAB VS State

1. 9(c)—Possession of narcotic—Reappraisal of evidence—At the time of arrest of accused 6000 grams charas gardah was recovered from his possession—Prosecution in order to bring home the guilt of the accused produced complainant/ Station House Officer (SHO) and an Assistant sub-Inspector—Latter was also a witness of recovery—Both said witnesses while appearing before the Trial Court remained consistent on all the material aspects of the case—To prove safe custody of case property in malkhana, the prosecution produced the muharrir—Moreover, positive report of Forensic Science Laboratory substantially established the case of prosecution against the accused—During trial, the defence was not able to bring on record anything which could suggest that accused had been implicated in the case due to malice on the part of prosecution witnesses—Findings of guilt rendered by the courts below against the accused did not suffer from any infirmity—High Court had already taken a lenient view by reducing the sentence of the accused from 14 years imprisonment to seven years and by reducing the fine from Rs. 200,000 to Rs.100,000—Jail petition was dismissed.

2020  SCMR  356   SUPREME-COURT

NAZEEM ULLAH VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(b)—Possession of narcotic—Bail, grant of—Conscious knowledge/ possession of presence of narcotic yet to be determined—As per contents of FIR, at the time of raid, one co-accused fled away from the spot from the back door of baithak—Narcotic was recovered from a shopping bag, which was found from the center of the baithak—Question whether the accused and co-accused persons had the conscious knowledge or possession of the recovered narcotic substance shall be determined at the time of trial—Moreover, the offence alleged fell outside the prohibitory clause of S. 497, Cr.P.C.—Accused and co-accused persons were granted bail in circumstances.

2020  SCMR  350   SUPREME-COURT

AYA KHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b) & 9(c)—Possession of narcotic—Bail, grant of—Borderline case between 9(b) & 9(c) of Control of Narcotic Substances Act, 1997—Benefit of doubt to accused— Vehicle in which the accused and co-accused were travelling was intercepted on a highway, and on checking of the same 1100 grams of heroin powder contained in plastic shopper bag was recovered—Neither the FIR nor the recovery memo mentioned whether it was the net or gross weight of the narcotic—In such circumstances it became a border line case between Ss. 9(b) & 9(c) of Control of Narcotic Substances Act, 1997—Benefit of doubt in this regard was to go to the accused—Accused and co-accused were granted bail accordingly.

2020  SCMR  196   SUPREME-COURT

MUHAMMAD BOOTA VS State

1. 6—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics— Report of Government Analyst—Protocols/procedure—Confirmatory forensic conclusions to establish narcotic character of a substance must be supported by the protocol/procedure mandated by R. 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001—Non-compliance of R. 6 would render the report of the Government Analyst inconclusive, suspicious and untrustworthy and would not meet the evidentiary assumption attached to such report.

2020  PLD  132   SUPREME-COURT

HUSSAIN SHAH VS State

1. 9(c)—Possession of narcotic—Re-appraisal of evidence—Benefit of doubt—Conscious possession of narcotic—Scope—Accused was the cleaner of a truck, being driven by the co-accused, from wherein charas weighing 12000 kilograms was recovered—Trial Court convicted the accused under S. 9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to imprisonment for life, which sentence was upheld by the High Court—Held, that although the prosecution alleged that the accused knew about existence of a cavity in the body of the relevant vehicle but nothing had been said by any prosecution witness about the accused having the requisite knowledge about availability of narcotic substance in such cavity of the vehicle—No evidence worth its name had been brought on the record to establish that the accused was conscious about availability of narcotic substance in the secret cavity of the relevant vehicle in which he was traveling along with its driver—When the prosecution failed to establish conscious possession or knowledge of the availability of narcotic then a passenger could not be convicted solely on the basis of his availability inside a vehicle at the relevant time—Conviction and sentence recorded against the accused and upheld by the courts below was set aside and he was acquitted of the charge by extending the benefit of doubt to him.

2020  PLD  132   SUPREME-COURT

HUSSAIN SHAH VS State

1. 9(c)—Possession of narcotic—Re-appraisal of evidence—Trial Court ordering taking of fresh samples from the recovered substance—Non-association of accused—Propriety—Truck being driven by the accused was intercepted by a raiding party and from a secret cavity of the vehicle charas weighing 12000 kilograms contained in 600 bags, each bag containing 20 packets, was recovered—Trial Court convicted the accused under S. 9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to imprisonment for life, which sentence was upheld by the High Court—Plea raised by accused that the Trial Court had no jurisdiction to take fresh samples from the recovered substance for examination by the Chemical Examiner—Validity—Record of the case showed that initially 600 samples taken from 600 bags recovered from the relevant vehicle had been sent to the Chemical Examiner for analysis but the Chemical Examiner had returned those samples and had required that a sample had to be taken from each and every packet of the substance recovered and such packets were 12000 in number—In such backdrop the Trial Court had instructed a Magistrate and under the supervision of that Magistrate fresh and separate samples had been secured from all the 12000 packets recovered which samples were then sent to the Chemical Examiner and thereafter a report was submitted in the positive—No provision of law was referred to by the accused requiring that the accused persons had to be associated with the process of taking of fresh samples by the supervising Magistrate—Guilt of accused had been established beyond reasonable doubt—Conviction and sentence recorded against the accused and upheld by the courts below was maintained.

2020  PLD  132   SUPREME-COURT

HUSSAIN SHAH VS State

1. 9(c)—Possession of narcotic—Re-appraisal of evidence—Truck being driven by the accused was intercepted by a raiding party and from a secret cavity of the vehicle, charas weighing 12000 kilograms was recovered—Trial Court convicted the accused under S.9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to imprisonment for life, which sentence was upheld by the High Court—Held, that the accused was driving the relevant vehicle when it was intercepted—Report received from the Chemical Examiner had declared that the recovered substance was charas—Prosecution witnesses deposing about the alleged recovery, were public servants who had no ostensible reason to falsely implicate the accused in a case of present nature—Said witnesses had made consistent statements fully incriminating the accused in the alleged offence—Nothing had been brought on record which could possibly be used to doubt the veracity of the said witnesses—Guilt of accused had been established beyond reasonable doubt—Conviction and sentence recorded against the accused and upheld by the courts below was maintained.

2020  YLR  2161   QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL HADI VS State

1. 9—Possession of narcotics—Appreciation of evidence—Liability of driver—Scope—Person who is on driving seat of the vehicle shall be held responsible for transportation of narcotics.

2020  YLR  2161   QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL HADI VS State

Ss. 9(c) & 25—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotics—Appreciation of evidence—Sentence, reduction in—Dispatch of sample for test or analysis—Mode of making searches and arrest—Search to be made in presence of witnesses—Non-association of private witnesses—Effect—Accused was alleged to have been driving a vehicle from the secret cavities of which 10 kilograms of charas was recovered—Witnesses were cross-examined at length by the defence but nothing favourable could be brought on record—Contention of accused regarding violation of S.103, Cr.P.C. by not joining private persons in recovery proceedings had no force because it was excluded by S.25 of Control of Narcotic Substances Act, 1997—No proof of enmity between the complainant and prosecution witnesses was brought on record, in the absence whereof they were competent witnesses—No delay in sending the samples to the Chemical Examiner as the same were delivered within 72 hours—Chemical Examiner after conducting chemical test with complete protocols found the samples to be charas—High Court observed that since only 10 kilograms of charas was recovered, therefore, case did not fall within the ambit of proviso to S.9(c) of Control of Narcotic Substances Act, 1997—Conviction of accused under section 9(c) was maintained but his sentence was reduced—Appeal was dismissed.

2020  YLR  315   QUETTA-HIGH-COURT-BALOCHISTAN

ATTAULLAH VS State

Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25—Possession of narcotics—Search and arrest—Mode—Search to be made in presence of witnesses—Bail, refusal of—Prompt FIR—Non-bailable offence—Scope—Accused was alleged to have been in possession of five kilograms of narcotics which was recovered by the complainant during checking of bus—Accused had been nominated in the promptly lodged FIR and the alleged recovery of narcotics was effected from his personal possession—Application under S. 103, Cr.P.C. had been excluded by S. 25, Control of Narcotic Substances Act, 1997—Members of law enforcing agencies were competent witnesses in the eyes of law unless there existed any mala fide or malice with accused person—Accused had failed to point out any ill-will or enmity on the part of prosecution—Presence of accused at the bus stand was also not disputed—Offence under S. 9(c), Control of Narcotic Substances Act, 1997 was punishable with imprisonment for death or life, which came within the ambit of prohibition contained in S. 497(1), Cr.P.C.—Question of bail could not be considered at initial stage of the trial—Prima facie, sufficient material was available on record to connect the accused in the commission of non-bailable offence—Petition for bail, being devoid of merit, was dismissed.

2020  PCrLJ  1688   QUETTA-HIGH-COURT-BALOCHISTAN

HABIB-UR-REHMAN VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)—Possession of narcotics—Appreciation of evidence—Recovery proceedings—Sample analysis, delay in—Effect—Accused was arrested while sitting in rear seat of Vehicle from which 10 sacks of raw Charas weighing 250 kilograms was allegedly recovered but driver had escaped—Recovery proceedings were not carried out at spot rather all proceedings were carried out in Levies station—Non-sealing of samples soon after its recovery at spot had created serious doubt in case of prosecution and no implicit reliance could be placed on chemical examiner’s report hence case of prosecution was highly doubtful—Incharge of vehicle was always considered to be driver of vehicle and he was held responsible for recovery of any sort of article from said vehicle—Whatever articles lie in such vehicle would be under his (Driver’s) control and possession and more knowledge and awareness would be attributed to incharge of vehicle—Mere presence of accused in vehicle neither established his ownership in respect of vehicle nor he could be held responsible for recovery of contraband from same—Prosecution failed to establish nexus of accused with such vehicle and since no nexus of accused with alleged vehicle had been established by prosecution, accused could not be held responsible for recovery of any contraband from such vehicle—Receipt of samples after 45 days vanished evidentiary value of Forensic Science Laboratory report—Otherwise investigating officer failed to tender any plausible explanation for delay in sending samples for analysis— High Court set aside conviction and sentence awarded to accused by Trial Court as same had suffered from misreading and mis-appreciation of evidence and acquitted him of charge—Appeal was allowed in circumstances.

2020  PCrLJ  1512   QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL GHAFOOR VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Recovery of narcotic substance—Bail, refusal of—Driver of vehicle—Chars weighing 2 kilograms and heroin weighing 100 grams were recovered from beneath the driving seat of vehicle which was being driven by accused—Effect—Driver could not be absolved from the liability, if contraband was transported in the vehicle being driven by him—High Court declined to grant bail on merit lest it could cause prejudice to other side—On tentative assessment of record there existed prima facie case against accused—Bail was refused, in circumstances.

2020  PCrLJ  1512   QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL GHAFOOR VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Recovery of narcotic substance—Bail, grant of—Passenger of vehicle—Case of further inquiry—Charas weighing 2 kilograms and heroin weighing 100 grams were recovered from beneath the driving seat of vehicle in which accused was sitting on front—Effect—When accused was arrested he was not driving the car nor any narcotics was recovered from his exclusive possession rather he was sitting on the front seat of the car—Case of accused was one of further inquiry—Bail was allowed, in circumstances.

2020  PCrLJ  1442   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD WALI VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4—Possession of narcotics—Delayed FIR—Despatch of sample for analysis after seventy two hours of seizure—Non-production of sample-bearer—Effect—Accused was convicted for having been in possession of 10 kilograms of charas—Occurrence took place at 10:00 a.m. but the complainant lodged the report after an unexplained delay of six hours—Safe custody and transmission of charas could not be proved by the prosecution as report of Forensic Science Laboratory revealed that the sample parcel was received with a delay of about eleven days and the delay was not explained—Such exercise was required to be completed within 72 hours as per R. 4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001—Prosecution had failed to examine the officer who had taken the sample to the Chemical Examiner, so that he could have been cross-examined on the point as to in whose custody the sealed parcel of the samples of charas was lying for about eleven days—Prosecution could not prove prompt registration of FIR, safe custody and prompt transmission of representative samples to the Government Analyst—Prosecution had failed to prove its case against the accused, in circumstances—Appeal was allowed.

2020  PCrLJ  264   QUETTA-HIGH-COURT-BALOCHISTAN

GHULAM MUHAMMAD VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Possession of narcotics—Report of Government Analyst—Appreciation of evidence—Benefit of doubt—Complainant lodged FIR alleging therein that he along with other Levies Personnel made a blockade meanwhile a motorcycle boarded by the accused persons was intercepted and three packets of charas from right side and two packets from left side of the motorcycle were recovered—Failure to mention full protocols of tests applied—Effect—Non-production of person who delivered sample to the Government Analyst—Effect—Safe transmission/Safe custody—Scope—Report of Government Analyst was not in accordance with R. 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, which was mandatory in nature—Report in question had no evidentiary value—Investigating Officer had stated that the samples of the contraband were sent to the Government Analyst through process-server but the said process-server was not produced before the Trial Court to prove the safe transmission of contraband from the custody of the Levies to the Government Analyst, which act on the part of the prosecution created serious doubts in the whole prosecution’s case—Appeals were allowed, in circumstances.

2020  MLD  1390   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD SHARIF VS State

1. 9(c)—Criminal Procedure Code (V of 1898), Ss. 412 & 342—Possession of narcotics—No appeal in certain cases when accused pleads guilty—Examination of accused—Appreciation of evidence—Safe custody—Delay in sending contraband to Forensic Science Laboratory—Non-recording of statement of sample bearer—Scope—Accused was apprehended by police and during his search 1800 grams of charas was recovered—Accused did not plead guilty to the charge and claimed trial—Accused, during trial, voluntarily admitted his guilt and requested for leniency—Trial Court recorded the statement of accused under S.342, Cr.P.C., where he once again admitted his guilt and prayed for leniency—Trial Court convicted the accused—Conviction and sentence of accused were recorded on the basis of statement recorded under S.342, Cr.P.C., which was not construed as “plead guilty”—Admission of accused in his statement under S.342, Cr.P.C. was admission of that incriminating material which was produced by prosecution against him—Prosecution had examined only one witness—Allegedly recovered contraband was dispatched to Forensic Science Laboratory with a delay of more than 20 days without explanation—Statement of sample bearer was not recorded during investigation—Prosecution had failed to establish the safe custody of the alleged contraband—Appeal was allowed and the impugned judgment was set aside, in circumstances.

2020  MLD  930   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD DEEDAR VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.6—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Contradiction in statements of witnesses—Delay in sending recovered samples to the Forensic Science Laboratory—Chain of safe custody—Levies force was alleged to have conducted raid and recovered 100 kilograms of charas from the secret cavities of the vehicle driven by accused—Prosecution case was that after recovery of 100 packets of charas, ten grams charas from each packet was extracted and sealed into separate parcels for chemical analysis, while rest of the charas was sealed in a separate parcel at the spot—Prosecution witness negated the version of prosecution during cross-examination—Prosecutoin had failed to bring on record the registration documents of the vehicle and failed to prove connection of the accused with the vehicle—Sample was received by the Forensic Science Laboratory after delay of six days—Safe custody of allegedly recovered contraband till its receipt in the Forensic Science Laboratory could not be reconciled from the record—Chain of custody, safe custody and safe transmission was altogether missing—Prosecution had not complied with R.6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 as it had failed to provide full protocols of test applied—Appeal was allowed and the judgment passed by Trial Court was set aside, in circumstances.

2020  MLD  202   QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL AZIZ VS State

Ss. 9(c) & 36—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Possession of narcotics—Report of Government Analysts—Failure of Analysts to mention full protocols of tests applied—Effect—Excise police, on spy information, intercepted the car of accused and recovered five kilograms of charas from the secret cavities of the car—Report of Chemical Examiner did not contain full protocol of tests applied—Report was not in accordance with S.36(1), Control of Narcotic Substances Act, 1997, which was mandatory—Report of Analysts was silent in respect of safe transportation/transmission of narcotic to the Chemical Expert—Statement of police officer who had taken the sample for analysis was not recorded—Report in question was of no evidentiary value—Appeal was allowed, in circumstances.

2020  MLD  68   QUETTA-HIGH-COURT-BALOCHISTAN

ALAMGIR VS State

1. 516-A—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Superdari of vehicle—Scope—Appellant assailed order of Trial Court whereby his application for superdari of vehicle seized as case property was dismissed—Narcotics were recovered from the toolbox of the vehicle which was driven by accused—Appellant was not accused in the case nor the prosecution had brought on record any incriminating material to show the knowledge of appellant in respect of the allegedly recovered narcotics—Narcotics were not recovered from the secret cavities of the vehicle—Appellant, being in possession of valid documents showing his undisputed ownership, was entitled to the custody of the vehicle—Appeal was allowed.

2020  MLD  59   QUETTA-HIGH-COURT-BALOCHISTAN

RIZWAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(b) & (c)—Possession of narcotics—Bail, grant of—Borderline case—Completion of investigation—Further inquiry—Scope—Police, on usual patrolling, recovered 1300 grams of charas and 300 grams of crystal from the possession of accused—Allegedly recovered contraband was 1300 grams charas and 300 grams crystal and it was a borderline case between clauses (b) and (c) of S.9 of Control of Narcotic Substances Act, 1997—Quantity of allegedly recovered charas marginally exceeded limit of 1000 grams, under such circumstances Trial Court had to determine whether the maximum punishment would be awarded or not—Where two quantum of sentences were provided in the statute, the lesser had to be considered for the purpose of bail—Question of quantum of sentence, in the present case, fell within the purview of further inquiry—Applicant had been shifted to judicial custody and the witnesses cited in the calendar were police personnel, therefore, the applicant was not required for further investigation nor there was any apprehension of tampering with the prosecution evidence—Medical certificates annexed with the application showed that the applicant was a cancer patient, therefore keeping him behind the bars without proper treatment might be dangerous for his life—Applicant had successfully made out a case calling for further inquiry as envisaged under S.497(2), Cr.P.C.—Petition for grant of bail was accepted.

2020  YLR  2538   PESHAWAR-HIGH-COURT

SHAHID KHAN VS State

Ss. 9(c), 13 & 29—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4—Transportation of narcotics, prohibition of acquisition and possession of assets derived from narcotic offences, presumption from possession of illicit articles, dispatch of samples for test or analysis—Appreciation of evidence—Accused was alleged to have been apprehended while transporting 20.100 kgs narcotic—Prosecution witnesses were consistent and coherent in their statements qua stopping the car, search of the vehicle, recovery of contraband there-from, its weighment and separation of samples from the recovered stuff, its transmission to the Forensic Laboratory for chemical analysis and safe custody of the remaining contraband in the malkhana—Prosecution had successfully discharged the burden, which was laid on its shoulder, whereafter it was for the accused to disproof the prosecution’s case set up against him, as per section 29 of the Control of Narcotic Substances Act, 1997—Accused could not produce any reliable defence to show that either he was not driving the vehicle at the relevant time when it was stopped and he was arrested or that the contraband was foisted upon him by the complainant—Delay of two days in sending the samples to Forensic Laboratory was not fatal as the rules to that effect were directory and not mandatory—Judgment passed by trial court was based on proper appreciation of the evidence to which no exception could be taken—Appeal against conviction was dismissed, in circumstances.

2020  YLR  1917   PESHAWAR-HIGH-COURT

State VS JAMSHED

Ss. 233 & 235—Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 9(c)—Possession of narcotics—Appreciation of evidence— Appeal against acquittal— Consolidation of cases—Separate offences—In the present case, there were two separate incidents in which one FIR was registered on 15.04.2014 under S.9(b) of the Control of Narcotic Substances Act, 1997, on the next day, another FIR under S.9(c) of the Act was registered—Said two cases were separately tried, separate evidence was recorded, even statement of accused was recorded separately—Both the accused were acquitted through a consolidated order—Validity—Writing consolidated judgment by the Trial Court in two separate trials was not a material irregularity which could vitiate the whole trial—Said irregularity could be cured by re-writing two separate judgments in the said trials because the trials were independently held—Appeal was allowed by setting aside the order of acquittal and the matter was remanded back to the Trial Court with direction to re-write separate judgments of each trial in accordance with law after hearing the parties.

2020  YLR  1429   PESHAWAR-HIGH-COURT

NASIR AZIZ VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)– Possession of narcotics—Bail, grant of—Further enquiry—-Recovery of 11 kilograms heroin was effected from the ‘degi’ of the motorcar, which was driven by co-accused at the relevant time—Nothing was available on the record which could show that either accused persons were having conscious knowledge of the narcotic or were previously involved/convicted in such like cases—Mere heinousness of crime would not disentitle accused to the concession of bail when ultimate conviction, if any, could repair the wrong caused by the mistaken relief of bail—Application was allowed, in circumstances.

2020  YLR  464   PESHAWAR-HIGH-COURT

YASIR VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 21—Possession of narcotics—Power of entry, search, seizure and arrest without warrant—Bail, grant of—Rule of consistency— Applicability— Scope—Non-production of case property before court—Seizure by officer below the rank of Sub-Inspector—Effect—Accused was alleged to have been the driver of a vehicle from the secret cavities of which 7000 grams of charas and 9000 grams of opium was recovered—Co-accused, who got the vehicle on rent, had already been released on bail—Case of accused was hit by the rule of consistency as the principal co-accused had already been released by the court—Seizing officer was the Assistant Sub-Inspector, who was below the rank of Sub-Inspector and was not authorized to seize such narcotic drugs in view of subsection (c) of S. 21 of Control of Narcotic Substances Act, 1997—Case property was not produced before the competent court of law during trial, which was a mandatory requirement under the Control of Narcotic Substances Act, 1997—Accused could not be booked for the commission of offence in the absence of case property—Petition for grant of bail was accepted, in circumstances.

2020  YLR  311   PESHAWAR-HIGH-COURT

JAVED VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Non-production of material witness and Register maintained at police malkhana—Effect—Prosecution case against accused persons was that they were sitting in a car, on search of the car 10 packets of charas, concealed in its secret cavities, were taken out—Prosecution case was that murasila was drafted and handed over to a police official for its transmission to police station for lodging formal FIR but the said police officer was not produced as a witness—Cross-examination of prosecution witness revealed that recovery memo. and card of arrest were also handed over to the said police official by the complainant—Production of said police official as prosecution witness was necessary—Prosecution had also failed to produce an extract from the relevant Register, which was kept at police malkhana for entering therein the recovered and sent contraband—Recovery was neither effected from personal possession of the accused persons nor the same was taken out of the vehicle on their pointation—Prosecution had not proved its case against the accused persons beyond reasonable doubt, in circumstances—Appeal was allowed, convictions and sentences of the accused persons were set aside.

2020  YLR  289   PESHAWAR-HIGH-COURT

SADIQ IMRAN VS State

9. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that three packets of charas gardha wrapped in yellow scotch tape, which was found to be 1240 grams each, were recovered from the vehicle of the accused—Five grams charas was separated from each packet for chemical analysis and sealed into parcels—Remaining stuff was also sealed into another parcel—First Information Report was registered pursuant to the recovery—Record was silent as to whom the samples were handed over for onward transmission to Forensic Science Laboratory—Recovery was made on 09.03.2018, the samples were received by the Incharge Forensic Science Laboratory on 13.03.2018—Nothing was on the record as to where the said samples were lying in the interregnum period—Record transpired that accused-appellant was a serving Police Official and as stated by him in his statement recorded under S. 342 Cr.P.C., he had remained gunner with the complainant—Prior to the occurrence and also on the day of occurrence, some hot words were exchanged between the complainant and accused where after the accused-appellant was involved in the present case—Statement of accused-appellant found support from the statement of prosecution witness wherein he had admitted in his statement that the accused-appellant had remained gunner with the complainant—Statements of said prosecution witness and accused-appellant showed that the complainant was already carrying a grudge against the accused-appellant with ulterior motives thus, the conviction and sentence recorded by the trial Court could not be sustained—Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

2020  YLR  151   PESHAWAR-HIGH-COURT

SAIF ULLAH VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9—Possession of narcotics—Bail—Scope—Quantity of contraband and the expected quantum of punishment to be awarded at the trial, has to be taken into account while allowing bail to the accused persons.

2020  YLR  151   PESHAWAR-HIGH-COURT

SAIF ULLAH VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 21—Possession of narcotics—Power of entry, search, seizure and arrest without warrant—Bail, grant of—Delay in sending samples to Laboratory—Non-association of independent witnesses—Completion of investigation—Further inquiry— Scope— Accused was apprehended by local police while having 4000 grams charas in his possession—Being a case of prior information, proceedings were conducted by an Assistant Sub-Inspector of Police which was violative of the governing provisions of Control of Narcotic Substances Act, 1997—Samples separated for Forensic Science Laboratory were sent after delay of 6 days, which also made the prosecution case doubtful— No independent witness was associated with the recovery of contraband—No statement of driver or cleaner of the bus, from which accused was apprehended, was recorded by the Investigating officer—Accused was juvenile as he had placed on record his school leaving certificate—Investigation in the case was complete and he was not required to the prosecution—Case of accused squarely fell under subsection (2) of S. 497, Cr.P.C. calling for further probe into the matter—Bail was allowed, in circumstances.

2020  PCrLJ  1524   PESHAWAR-HIGH-COURT

FAZAL MAULA VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Contradictory statements—Scope—Accused was alleged to have been found in possession of 4000 grams of charas—Witnesses had contradicted each other regarding the mode of stopping the vehicle; the part of vehicle from which the narcotic was recovered; the possession of case property and the person who had sealed the parcels—Complainant stated that he had first sealed the parcels then prepared the recovery memo and thereafter drafted murasila meaning thereby that FIR was not chalked out at that time, thus, the entry of FIR number on the parcels at the spot led to the conclusion that recovery was not made in the mode and manner as alleged by the prosecution—Conviction could neither be approved nor upheld on the basis of shaky evidence—Appeal against conviction was allowed, in circumstances.

2020  PCrLJ  1524   PESHAWAR-HIGH-COURT

FAZAL MAULA VS State

1. 9(c)—Possession of narcotics—Transmission of samples to Forensic Laboratory—Retention of samples by the sample-bearer for one night—Effect—Sample-bearer stated in cross-examination that he received the parcel in the evening and delivered the same on the next day—Duty of sample-bearer was to safely deliver the samples in the laboratory and he was not authorized to retain the samples in his possession before his departure to the Forensic Laboratory—Prosecution had not explained for which purpose the samples were handed over to the sample – bearer to retain them for one night—Chain of safe custody of the samples was broken and safe transmission thereof to the laboratory had become doubtful—Such report of Forensic Laboratory could not be relied upon against the accused— Appeal against conviction was allowed, in circumstances.

2020  PCrLJ  1212   PESHAWAR-HIGH-COURT

MUSHTAQ AHMED VS State

Ss. 9(c) & 26—Delinquent officers, proceedings against— Petitioner was complainant who registered FIR in a case where 68 kilograms of heroin was recovered from accused—Accused was acquitted by Trial Court and authorities were directed to initiate departmental proceedings against the petitioner—Validity—Benefit of doubt was extended to accused by certain personal observations of Trial Court which was beyond the authority of Trial Court—Fact that accused was heroin addict prevailed upon Trial Court who observed that it was unimaginable that he could be trusted through whom transportation of such items could be carried out—Observations of Trial Court to the extent of issuance of direction for initiation of departmental proceedings against petitioner was uncalled for and was not maintainable—Though there were strong grounds for acquittal of accused but recovery and arrest could not be termed as hit by provision of S. 26 of Control of Narcotic Substances Act, 1997—High Court set aside the observations and order rendered by Trial Court against petitioner— Constitutional petition was allowed accordingly.

2020  PCrLJ  493   PESHAWAR-HIGH-COURT

YAR SHAH VS State

1. 9(c)— Criminal Procedure Code (V of 1898), S. 340(2)—Possession of narcotics—Right of accused to give evidence on oath—Appreciation of evidence—Benefit of doubt—Mode of arrest—Ownership of vehicle—Registration of FIR after preliminary inquiry—Delay in sending samples of recovered contraband to Forensic Science Laboratory—Effect—Allegation against accused persons was that huge quantity of narcotics was recovered from the vehicle being occupied by them—Accused persons had recorded their statements on oath under S. 340(2), Cr.P.C. and had forwarded a different story in respect of their arrest and lodging of FIR against them by the Anti-Narcotics Force officials—Mobile data collected by the prosecution revealed that the accused persons were present at district ‘P’ at the time of their arrest—Vehicle from which contraband was recovered, was alleged to be in the ownership of a tout of Anti-Narcotic Force but the documents produced by him were found to be fake—Neither any case was registered against the said person nor was he shown to be fugitive of law although serious allegations were levelled by the accused persons that the vehicle was still in use of said person—Prosecution had failed to prove the recovery of contraband from the vehicle at the place and time shown by them in the FIR, as no recovery memo. was available in that respect—Search proceedings were allegedly conducted in the police station—Identification memo revealed that FIR number was mentioned in the same handwriting and other contents of the said memo suggested that all the memos were prepared after registration of the case meaning thereby that the case was registered after preliminary inquiry—Contraband allegedly recovered from the vehicle of accused persons was sent to the Forensic Science Laboratory with a considerable delay—Card of arrest did not reveal the time of arrest of accused while it bore the FIR number—Capital punishment could not be given on shaky kind of evidence—Case was full of doubts as far as the arrest of the accused, recovery of narcotics and even the possession over the vehicle of the accused persons was concerned—Appeals were allowed and the impugned judgments of conviction were set aside, in circumstances.

2020  PCrLJ  321   PESHAWAR-HIGH-COURT

ABDUL BAQI VS State

Ss. 9(c) & 29—Possession of narcotics—Possession of illicit articles—Presumption—Appreciation of evidence—Benefit of doubt—Accused, present on front seat of vehicle—Conscious knowledge of accused—Scope—Accused persons were allegedly found to be in possession of vehicle, the floor of which was found double—Vehicle and the accused persons were taken to the police station where the floor of the vehicle was opened through electric cutter and 54 packets of heroin were recovered from its secret cavities—Nothing incriminating was recovered from the personal possession of the accused, who was allegedly sitting on the front seat of the vehicle—Nothing was brought on record to show whether he had conscious knowledge of the contraband concealed in the secret cavities of the vehicle or he was just a front seater—Prosecution was duty bound to prove through cogent evidence that accused had conscious knowledge of the contraband recovered from the secret cavities of the vehicle—High Court accepted the appeal of the accused and set aside the impugned judgment to his extent.

2020  PCrLJ  321   PESHAWAR-HIGH-COURT

ABDUL BAQI VS State

1. 9— Possession of narcotics— Duty of court—Scope—Safe administration of justice mandates the court to be conscious of not the quantity of contraband but the quality of evidence produced in the court for reaching to a correct conclusion and just decision of the case.

2020  PCrLJ  321   PESHAWAR-HIGH-COURT

ABDUL BAQI VS State

Ss. 9(c) & 29— Possession of narcotics— Presumption from possession of illicit articles—Appreciation of evidence—Benefit of doubt—Driver of vehicle—Consistent statements of prosecution witnesses—Effect—Accused persons were allegedly found to be in possession of vehicle, the floor of which was found double—Vehicle and the accused persons were taken to the police station where the floor of the vehicle was opened through electric cutter and 54 packets of heroin were recovered from its secret cavities—Statements of complainant, marginal witness to the recovery memo, member of the police party who kept parcel containing the remaining quantity of heroin in malkhana and Investigating Officer were consistent on all material aspects and no distinct discrepancy was noticed to mar the credibility of their testimony—Mode and manner of arrest of the accused, the driver of vehicle, leading to recovery of narcotics was duly proved—Prosecution evidence was unanimous with regard to the arrest of the accused, number of secret cavities, the taking of vehicle to the police station, where the secret cavities were cut through electric cutter and 54 packets of heroin were recovered from the same and to that extent the evidence of the prosecution was also confidence inspiring—Accused, the driver of the vehicle, was responsible for whatever was lying in the vehicle, he could not be absolved of his responsibility of the contraband recovered from the vehicle in question—Prosecution had successfully proved its case against the accused beyond any shadow of doubt—Trial Court had rightly awarded life imprisonment to the accused—Impugned judgment to the extent of accused did not warrant interference by the High Court.

2020  PCrLJ  202   PESHAWAR-HIGH-COURT

IMTIAZ KHAN VS State

23. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that 454 packets of charas garda and 10 packets opium, each packet consisting of small tikkies wrapped in different colour wrappers were recovered from the truck driven by accused while co-accused was sitting on front seat—Samples from the recovered charas as well as opium of 10/10 grams were taken from each packet for the purpose of Laboratory analysis, rest of the narcotics were sealed in separate parcels—Pursuant to recovery, both the accused-appellants were booked—In the present case, the joint charge framed against the accused-appellants was vague inasmuch as it did not specify as to who was driving the truck at the relevant time and who was sitting on the side seat—No case property was produced and exhibited before the Trial Court during the course of examination of accused-appellants—Evidence used against the accused-appellants on that account was incomplete—Samples separated from the recovered contraband were sent to the Laboratory situated in other District—No reason was recorded on the part of the prosecution that despite having a full-fledged upto date Laboratory in the city, why the samples were sent to other District for test and analysis—Even if the rule was construed as directory, it did not mean that it need not be complied with at all—Prosecution could not be permitted to ignore such provision of law completely without any reason—Samples were dispatched on 23.02.2013 which were received by the Forensic Science Laboratory on 25.02.2013—Report was prepared and signed by the persons not qualified for the purpose under the Act—No CDR data had been collected by the prosecution to have established the link of accused-appellants with drug traffickers—Circumstances established that the prosecution had failed to prove its case against appellants beyond any shadow of doubt—Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

2020  PCrLJ  88   PESHAWAR-HIGH-COURT

MULTAN JAN VS State

1. 9(c)—Criminal Procedure Code (V of 1898), Ss. 243 & 342—Qanun-e-Shahadat (10 of 1984), Arts. 30 & 43—Recovery of narcotics—Appreciation of evidence—Admission—Proof—Benefit of doubt—Dispatch of material to Forensic Science Laboratory—Scope—Accused persons were arrested and recovery of 10 packets of Charas weighing 1200 grams each from car was made—Trial Court convicted and sentenced accused to imprisonment for life but acquitted co-accused driver on grounds that accused gave an affidavit of admission of guilt to the authorities—Validity—Safe custody of recovered substance as well as safe transmission of samples of recovered substance to Forensic Science Laboratory was not established by prosecution—Complainant/Seizing Officer took into possession contraband but it was not clear as to whom he handed over the remaining contraband—Authorities prepared samples for Forensic Science Laboratory but it was not clear as to whom he handed over the case property and samples at police station—No record or assertion was available to the effect that samples and case property were ever kept in Maalkhana—Accused was in judicial custody when affidavit was scribed and also in judicial custody when affidavit was produced in court—Affidavit did not contain any stamp of jail authorities and Oath Commissioner was also not produced by prosecution to explain as to how he attested affidavit of accused when he was in judicial lockup— High Court set aside conviction and sentence awarded to accused as Trial Court erred in appreciating evidence in its true perspective and slightest doubt in case of prosecution was sufficient to grant acquittal to accused—Appeal was allowed in circumstances.

2020  MLD  1724   PESHAWAR-HIGH-COURT

HARIS MALIK VS State

Ss. 9(c), 25 & 29—Transportation of narcotics—Mode of making searches and arrest—Possession of illicit articles—Presumption—Appreciation of evidence—Police witnesses—Burden of proof—Scope—Accused was found transporting 14 kilograms of charas which was recovered from the secret cavities of the vehicle being driven by him—Prosecution witnesses were cross-examined at length regarding the mode and manner of recovery, but the defence failed to create dents—Witnesses remained consistent on material aspects of the case—Defence alleged mala fide to the Seizing Officer but failed to point out as to why the police would plant such a huge quantity against the accused and why an attempt was made to implicate the accused, if innocent—Manner in which the recovery was effected, the process of weighment, the sealing of case property and the investigation showed that the case was investigated on proper lines with strict adherence to the law and procedure—Defence had failed to point out major discrepancies in the statements of witnesses—Accused argued that no efforts were made to associate private witnesses to witness the recovery but the contention held no ground as S.25 of Control of Narcotic Substances Act, 1997 had done away with such formality—Police officials were as good witnesses as others and that too when no mala fide was proved against them—Prosecution had fully connected the accused with commission of the offence and it was the accused who had to prove his innocence—Trial Court had rightly convicted the accused—Appeal against conviction was dismissed, in circumstances.

2020  MLD  1215   PESHAWAR-HIGH-COURT

ZAMIN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)— Possession of narcotics—Bail, grant of—Further enquiry—-Recovery of 4000 grams of Charas and 50 grams of ice—Record revealed that no public complaint or statement was available on record so as to validate version of the seizing officer set forth in the FIR—Nothing was available on record which could show as to whether in the subject house only accused was residing or the same was combined one—Recovery of 4000 grams of Charas had admittedly been made from the room and only 50 grams of ice was shown to have been recovered from the immediate possession of accused—Besides registration of the present FIR, on the same day, in the same Police Station other FIRs were registered regarding cases of same nature with a little bit time difference, wherein all the accused had been released on bail by the High Court, leading the case of accused to further inquiry into his guilt—Benefit of doubt, if any, could be extended to the accused at bail stage—Investigation in the case was complete and the accused was no more required for further investigation—Bail was granted, in circumstances.

2020  MLD  629   PESHAWAR-HIGH-COURT

DAD MIR VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Police witnesses—Scope—Police witnesses are as good witnesses as anyone else but in cases of narcotics registered under S. 9(c), Control of Narcotic Substances Act, 1997 where life imprisonment or death sentence can be awarded to a person accused of such an offence, the prosecution is duty bound to bring on record consistent, straightforward and clear evidence.

2020  MLD  629   PESHAWAR-HIGH-COURT

DAD MIR VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Conscious knowledge of accused—Scope—Prosecution case against accused was that he along with another was travelling in a vehicle which was loaded with marble scrap under which 100 packets of charas were discovered by the police—Prosecution had failed to prove any link of the accused with the driver, as he was resident of foreign country whereas the driver was resident of Pakistan—Accused, in his statement under S. 342, Cr.P.C., had stated that he was waiting for public transport, in the meanwhile two co-accused persons came over there and offered him lift on his request and accordingly he had seated in the said vehicle—No recovery was effected from the direct possession of the accused—Contraband was recovered from beneath the marble pieces loaded in the vehicle—Prosecution had failed to establish that the accused was having knowledge of narcotics or the same was exposed to him—Prosecution had simply proved presence of accused in the vehicle and mere presence of accused in the vehicle would not involve him in the case—Prosecution had failed to prove its case against the accused—Appeal of the accused was accepted and impugned judgment to his extent was set aside.

2020  MLD  629   PESHAWAR-HIGH-COURT

DAD MIR VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Sentence, reduction in—Discrepancy in weight of narcotic—Mitigating circumstances—Scope—Prosecution case against accused was that he, along with another was travelling in a vehicle which was loaded with marble scrap under which 100 packets of charas were discovered by the police—Each packet weighed one kilogram, and five grams from each packet was separated and sealed—Case of prosecution with regard to separation of samples from the contraband and its weight was discrepant—Investigating Officer admitted that the weight of the contraband after extraction of samples was stated to be 9500 grams—Complainant admitted in his cross-examination that he did not open all the packets for separation of samples; that each packet contained one slab and that since sufficient time had lapsed when the contraband was seized, therefore, he did not remember that any packet contained more than one slab—Marginal witness to the recovery memo stated that the weight of remaining stuff was 9500 grams—Case against accused, the driver of the vehicle, was proved beyond any shadow of doubt—Trial Court had rightly convicted the accused, however, as to whether the contraband was 100 kgs or 9500 grams and statement of the complainant regarding separation of samples was a mitigating circumstance—High Court maintained the conviction and reduced the sentence from imprisonment for life to 7 years—Appeal to the extent of accused was dismissed.

2020  MLD  448   PESHAWAR-HIGH-COURT

MUHAMMAD SADEEQ VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Contradictory statements—Safe custody—Non-examination of sample-bearer—Effect—Allegation against accused was that he was driving the vehicle wherein secret cavities were specially designed for concealment of narcotics and police recovered 150 packets containing charas, which turned out to be 150 kg—Each prosecution witness had contradicted each other on various points—Seizing Officer had stated that case property was lying in between the driver’s seat and the rear body portion of the vehicle—Marginal witness to the recovery memo had stated that the contraband was recovered from rear portion of the vehicle and that the cavity was not behind the driver’s seat—Seizing officer had stated that at the time of nakabandi they had no official vehicle whereas a prosecution witness had contradicted such stance—Seizing officer had revealed that he had used his own scale to weigh the material whereas marginal witness had stated that the scale was procured from a nearby shop—Witnesses had contradicted each other to the effect that search was conducted on the information of informer—Seizing officer had shown his inability to tell as to whether there was any writing over the case property or not but the case property had writing on it—Investigating Officer had stated that no shop was available in the vicinity therefore, he had not shown the same in the site plan—Seizing officer had admitted that during search he had not taken into possession driving licence, keys of the vehicle or any other document showing ownership of the vehicle by the accused—Accused was not challaned for driving without licence—Prosecution had not tried to ascertain about the owner of the vehicle—Seizing officer had stated that the charas and case property was handed over to the Investigating Officer on the spot whereas Investigating Officer had contradicted such stance—Prosecution witness had stated that the parcels, vehicle and the case property were handed over to him by the complainant in the police station however, no receipt or abstract from the Register was brought on record—Constable, who was shown in the Forensic Science Laboratory report to have brought the samples, was not examined by the prosecution—Samples of the recovered stuff were received by the Laboratory after three days of its recovery, however, the prosecution witnesses did not bring on record the trail of samples suggesting that during this period the same was kept in safe custody—Trial Court had not analyzed the prosecution evidence in its true perspective—High Court accepted the appeal and set aside the impugned judgment.

2020  MLD  352   PESHAWAR-HIGH-COURT

KHURSHED VS State

30. 9(c)—Possession of narcotics—Reappraisal of evidence—Benefit of doubt—Safe custody of contraband substance by police and transmission of samples to the Chemical Examiner not established—Effect—Police raided a rented house on information that accused/appellant, a proclaimed offender, in a murder case, was present in the said house, he was arrested—Twenty four packets charas, each packet weighing 1000 grams, total 24 kgs charas, were recovered from the motorbike parked in the house—No such FIR was available on file to affirm that the accused was a proclaimed offender—Nothing was available on record that the house was rented to accused-appellant and motorbike in question was accused’s property—Prosecution had not established any connection of the accused with the alleged recovery of contraband effected from motorbike parked in the house—Warrant of arrest of the competent court, if any, had not been brought on record by prosecution—Complainant/Seizing Officer had though deposed in his court’s statement that he took into possession the contraband, but it was not clear from his statement as to whom he handed over the remaining contraband except the stance that complainant had taken the accused and other articles to the police station—Complainant had further deposed that he prepared the samples for Forensic Science Laboratory but from his statement it was not clear as to whom he handed over the samples for taking to Forensic Science Laboratory—Other prosecution witness had narrated that the samples were sent to Forensic Science Laboratory by the Moharrir on 30.11.2016, but without disclosing the name of official who took the same to Forensic Science Laboratory—Forensic Science Laboratory report indeed showed that Constable took the samples to Forensic Science Laboratory on 02.12.2016—Both the said important witnesses being associated with the recovered contraband at the relevant time were not produced before the Trial Court by the prosecution—Adverse inference under Art. 129(g) of Qanun-e-Shahadat, 1984 could be drawn—Nothing was available on record that samples and case property were ever kept in Malkhana—Safe custody of the samples and case property was not proved, in circumstances—Record was silent as to where the samples and case property remained from 28.11.2016 to 02.12.2016, when it was received in Forensic Science Laboratory with a considerable and un-explained delay of 4/5 days—Prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

2020  MLD  49   PESHAWAR-HIGH-COURT

Mst. FARZANA VS State

1. 9—Possession of narcotics—Scope—When more than one packets of contraband are recovered, prosecution must weigh each packet independently.

2020  MLD  49   PESHAWAR-HIGH-COURT

Mst. FARZANA VS State

1. 9—Possession of narcotics—Conscious knowledge of accused—Scope—Mere presence of accused in a vehicle where from some contraband is recovered would not be enough to hold the seater liable for conviction unless it is shown by the prosecution through reliable evidence that the accused had conscious knowledge qua the activity of offence.

2020  MLD  49   PESHAWAR-HIGH-COURT

Mst. FARZANA VS State

Ss. 9 & 21—Possession of narcotics—Conscious knowledge of possession of narcotics—Appreciation of evidence—Failure of complainant (Seizing Officer) to obtain search warrant despite prior knowledge of offence—Effect—Benefit of doubt—Prosecution case was that the accused was sitting in a car with three co-accused persons and on search of car two plastic bags containing charas were found lying on the floor of the rear seat—No evidence was available on record to show as to who had sighted the vehicle; who had searched it; who had recovered the contraband from the floor of the rear seat; who had opened the packets of the contraband and that the seizing officer had weighed each packet of the recovered charas separately—Complainant had received information about the narcotics four hours prior to the raid with the knowledge that the culprits would be four persons including a female, but even then neither he obtained permission from the court nor associated a lady constable with him—Prosecution had failed to show that the accused had a conscious knowledge regarding the charas—Prosecution had failed to establish and prove its case against the accused beyond any shadow of doubt, in circumstances—Appeal was accepted and the impugned judgment to the extent of appellant was set aside.

2020  YLRN  38   PESHAWAR-HIGH-COURT

MANZI GUL VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Recovery of 21 kilograms Heroin—Bail, refusal of—Huge quantity—Police Officials intercepted a motorcar—Twenty one packets of Heroin, each weighing one Kilogram, was recovered from beneath its seats and cavities made in its doors—Contradictory Forensic Science Laboratory (FSL) report—Accused had been arrested red-handed at the spot—Recovered contraband was in the exclusive possession and control of the accused—Factum of recovery of heroin found mentioned in the Marasila, FIR and recovery memo—Version of seizing officer was corroborated by the witnesses of recovery in their statements recorded under S.161, Cr.P.C.—Contradictory FSL report seemed to have been manipulated for some extraneous consideration and inquiry in that regard was in progress—No case for grant of bail had been made out—Petition being meritless bail was refused.

2020  YLRN  19   PESHAWAR-HIGH-COURT

SARDARAZ KHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, grant of—Further inquiry—Bail granted to co-accused—Effect—Involvement of accused in other narcotic cases—Effect—In absence of recovery of contraband and conviction of accused, case of accused could not be bifurcated/distinguished from that of co-accused who had been granted bail—Case of accused, therefore, was one of further enquiry—No strong reason was available to withhold the concession of bail to the accused—Petition for grant of bail was allowed, in circumstances.

2020  YLRN  8   PESHAWAR-HIGH-COURT

SAIDA GUL VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, grant of—Recovery of contraband from secret cavities of vehicle—Conscious knowledge of accused—Previous non-convict—Completion of investigation—Scope—Allegation against accused was that he was sitting on the front seat of the vehicle wherefrom ten packets of heroin were recovered—Alleged contraband was recovered from secret cavities of the vehicle, which, at the relevant time, was being driven by the co-accused while the accused was sitting with him on the front seat thus, the prosecution had yet to prove that the accused had any link with the co-accused—Alleged contraband was not recovered from the direct possession of the accused and the factum of conscious knowledge had also to be determined at the trial after recording evidence—Nothing was available on record to suggest that accused was a previous convict or was involved in such like cases—Accused was behind bars since his arrest—Investigation in the case was complete and the accused was not required for further investigation and keeping him behind the bars served no useful purpose—Bail application was allowed, in circumstances.

2020  PCrLJN  184   PESHAWAR-HIGH-COURT

REHMATULLAH VS State

9. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)—Seizure of narcotic—Appreciation of evidence—Benefit of doubt—Chemical analysis—Delay in sending samples of contraband for analysis—Effect—Record showed that the alleged recovery was effected on 09.6.2017, whereas the samples were received in the Forensic Science Laboratory on 13.6.2017—Nothing was available on file to tell that as to where the samples were lying during the intervening period—Even official witness kept quiet on that aspect of the case being Moharrir of the police station—Factum of recovery was further doubted when the witness, who allegedly collected the test samples from the Moharrir and handed over in the office of the Chemical Examiner, was questioned as to whether any receipt for taking the samples to the Forensic Science Laboratory was prepared and handed over by the Moharrir, he answered in the affirmative, but failed to establish that the receipt was handed over to the Investigating Officer to be placed on file—Moharrir of the police station when appeared as witness did not utter even a single word in that respect—Overall impact of the infirmities so erupted would put a heavy cost on the prosecution and went to the roots of the case—Such evidence could not lead to conviction—Dispatch of the test samples from the police station to the Forensic Science Laboratory had not been established in the way and in the manner as was proposed by the law, hence, the Forensic Science Laboratory Report so tendered could not be accepted and relied upon—Appeal against conviction was allowed, in circumstances.

2020  PCrLJN  184   PESHAWAR-HIGH-COURT

REHMATULLAH VS State

4. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Contradictions in the statement of witnesses—Scope—Prosecution case was that eight packets of charas, weighing 10280 grams were recovered from the secret cavities of the coach driven by the accused—Record showed that the complainant/SHO went on to say that he had made an entry in respect of his departure from police station to the spot in the daily diary, but the Investigating Officer neither collected nor placed the extract of the same on the police file—Complainant/SHO admitted it correct that he had not recorded the statements of passengers or any other private witness—Witness, who was allegedly present with the seizing officer, stated that the complainant/SHO went to the spot from police station in a private vehicle, which ran in contrast to what the scribe stated—Said witness was almost confused, as to what to say and who to support and as such his testimony was not worth reliance, which spoke nothing but that said witness was not present with the complainant/SHO at the time of the alleged recovery—Marginal witness to the recovery memo stated that the murasila was taken to police station by other witness/LHC at about 4.30 p.m.—Said witness failed to answer that what mode was adopted by the LHC for taking murasila to the police station—Marginal witness stated that the Investigating Officer along with FIR came to the spot at about 5.00 p.m. and they remained there for about three hours—Contrary to the above statement, Moharrir/witness stated that the murasila was brought to police station by LHC at about 4.00/ 4.30 p.m.—Time of collecting murasila from the spot and its handing over to the Moharrir in Police Station could not be the same—Facts remained that the police station and the spot lay at a considerable distance—Said version had created a serious dent in the prosecution case—Investigating Officer and the marginal witness did not toe the line and went apart on material aspects of the case—Investigating Officer stated that he reached to the spot at 5.25 p.m., whereas marginal witness went otherwise stating that it was 5.00 p.m. when the Investigating Officer reached to the spot—Investigating Officer further stated that the contraband charas was handed over to him in sealed condition, but he himself did not feel the need to see as to whether the recovered and sealed material was charas—Witness stated that the recovery memo was prepared by the Seizing Officer, who told that the charas was in powder form, whereas according to the laboratory report the recovered charas was in solid form—Said witness had never seen the contraband in open condition so he based his assessment both on the laboratory report and the recovery memo—Circumstances suggested that the investigation so conducted had definitely lost its veracity—Investigating Officer admitted that he had not weighed the contraband—Investigating Officer did not confirm the ownership of the vehicle—Record was silent that when, how and who handed over the prepared samples and the remaining case property to the Moharrir of the police station as the Investigating Officer did not collect the abstract from the Register No. 19—Moharrir stated that he received only the murasila, which he incorporated in the FIR, but he did not mention as to whether the case property was also handed over to him or not—Said silence confirmed that the case property was not lying in safe custody—Appeal against conviction was allowed, in circumstances.

2020  PCrLJN  184   PESHAWAR-HIGH-COURT

REHMATULLAH VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Benefit of doubt—Daily diary—Non-production of—Effect—Investigating Officer did not place on record the daily diary regarding the arrival and departure from the police station to the spot—Said lack of seriousness stamped the Investigating Officer as an interested witness and his testimony could not be relied upon—Appeal against conviction was allowed, in circumstances.

2020  PCrLJN  145   PESHAWAR-HIGH-COURT

AMAN UL HAQ VS State

Ss. 9(c) & 36—Transportation of narcotics—Reports of Government Analysts—Appreciation of evidence—Benefit of doubt—Delay in sending recovered narcotic to Forensic Laboratory—Defective report of Forensic Laboratory—Scope—Accused was alleged to have been apprehended while transporting 15 kilograms of heroin—Delay of two days in sending the samples to the Forensic Laboratory was unexplained—Report of Forensic Laboratory was in positive but when fresh samples were dispatched to another laboratory, the later reported that parcels contained a total of 300 grams of heroin and not 15 kilograms—Glaring contradictions in the record created reasonable doubt about the guilt of accused as the occurrence had not taken place in the mode and manner which was described by the prosecution—Appeal against conviction was accepted, in circumstances.

2020  PCrLJN  72   PESHAWAR-HIGH-COURT

SHABIR JAN AFRIDI VS State

6. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Contradictory statements of witnesses—Scope—Police received information regarding transportation of narcotics in a motor car—Seizing Officer recovered charas, weighing 5 kgs., lying beneath the seats of both the accused persons—Seizing Officer stated in his examination-in-chief that after the recovery of contraband, arrest of the accused and seizing the vehicle, he drafted the murasilla and sent it to the police station concerned through constable for registration of the FIR along with the case property (the vehicle and contraband) and accused—Sub-Inspector of Police, who received the murasilla, stated in his cross-examination that he received only murasilla, recovery memo. and card of arrest sent by the Seizing Officer, however, the case property and the accused were not handed over to him—Seizing Officer stated that on the day of occurrence, he left the police station at 6.00 a.m., while marginal witness stated in his cross-examination that police party left the police station at about 1:00 p.m. for patrolling on the day of occurrence—Murasilla revealed that it was drafted at 16.20 hours, while the FIR was chalked at 16.45 hours—Investigating officer stated in his cross-examination that he received the copy of FIR at 17.15 hours and, thereafter, he proceeded to the spot—Marginal witness stated in his cross-examination that his statement was recorded by the investigating officer under S. 161, Cr.P.C. at 5.00 p.m., i.e, before handing over copy of FIR to the investigation officer, while the Seizing Officer stated in his cross-examination that he remained at the spot for about 1-1/2 hours in respect of the whole proceedings—No license or ownership documents of the vehicle were recovered from one of the accused persons—Prosecution had not been able to prove its case against the accused beyond reasonable doubt—Conviction and sentences of the both appellants were set aside and they were acquitted of the charge, in circumstances.

2020  PCrLJN  25   PESHAWAR-HIGH-COURT

ABDUL GHANI VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, grant of—Further inquiry—Completion of investigation—Personal possession—Conscious knowledge of accused—Non-availability of report of Forensic Science Laboratory—Effect—Prosecution case against accused persons was that they were sitting along with the driver of the vehicle wherefrom a bag lying beneath the rear seat was recovered which contained 10300 grams of heroin—Heroin was neither shown to have been recovered from the personal possession of the accused persons nor on their pointation, rather the same was shown to have been recovered from a bag lying beneath the rear seat of the vehicle being driven and in control of the co-accused (driver)—Prima facie no evidence was available on record to show that the vehicle was in the ownership of any of the accused persons or they had conscious knowledge about the concealment of heroin in the same—Report of Forensic Science Laboratory regarding the samples allegedly sent for chemical examination had not been received till date and in the absence of which it could not be ascertained as to whether the recovered stuff was heroin or otherwise— Case of the accused persons was one of further inquiry—Investigation against accused persons was complete and they were not required for further investigation—Petition for grant of bail was allowed, in circumstances.

2020  YLR  2636   LAHORE-HIGH-COURT-LAHORE

State VS SARDAR MUHAMMAD alias SARDARA GUJJAR

Ss. 9 (c), 14, 15, 19, 37 & 48—Forfeiture of assets, refusal of—Acquittal—Accused was acquitted by Trial Court and the Court declined to forfeit his assets on the ground that his son and brother were involved in drug trafficking—Validity—Accused was tried for charges under Ss.9, 14 & 15 of Control of Narcotic Substances Act, 1997, along with other charges but he was not convicted and sentenced by Trial Court for the charge under S.9(c) of Control of Narcotic Substances Act, 1997, nor for abetment of the offence, as envisaged under S.15 of Control of Narcotic Substances Act, 1997—Accused was acquitted by Trial Court from all charges therefore, provisions of S. 37 of Control of Narcotic Substances Act, 1997, were not attracted against him—Authorities filed appeal malafidely against accused only on the ground that his son and brother were also accused in the case—High Court declined to interfere in the order passed by Trial Court as no illegality or material irregularity was pointed out in the order—Appeal was dismissed in circumstances.

2020  YLR  2524   LAHORE-HIGH-COURT-LAHORE

KHALID RAZZAQ VS State

1. 9(c)— Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Possession of narcotics—Report of test or analysis—Appreciation of evidence—Benefit of doubt—Consolidated sample—Safe custody—Scope—Accused was alleged to have been caught red handed with 3120 grams of charas—292 puries of charas were allegedly recovered from the possession of accused but the complaint prepared only one sealed packet and did not draw sample from each pury—Rule 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 provided that it was incumbent upon the investigator/forwarding agency to give specific number to each sample and the substance from which it was prepared in order to relate to its origin—Likewise it was compulsory for the Forensic Laboratory to prepare the report with respect to each packet by specifically numbering them and giving details of full protocols of the tests applied as mandated by the said rule—Report of Forensic Laboratory revealed that one sealed parcel containing resinous material in seal parcel was received by it—Prosecution had failed to prove the safe custody of the narcotics allegedly recovered from the accused—Appeal against conviction was allowed, in circumstances.

2020  YLR  2524   LAHORE-HIGH-COURT-LAHORE

KHALID RAZZAQ VS State

1. 9—Possession of narcotics—Safe custody—Safe transmission—Chain of custody—Scope—Prosecution was to establish that the chain of custody was unbroken, non-suspicious, indubitable, safe and secure—Break in the chain of custody and lapse in the control of possession of the recovered narcotics, cast doubts on the safe custody and safe transmission of the articles and impaired and vitiated the conclusiveness and reliability of the report of Forensic Laboratory, thus, rendering it incapable of sustaining conviction.

2020  YLR  2010   LAHORE-HIGH-COURT-LAHORE

NISHAT AHMAD VS State

Ss. 9(b) & 36—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Possession of narcotics—Report of result of test or analysis—Failure to mention full protocols in test report—Effect—250 grams of Charas was recovered from the accused when police apprehended him on suspicion—Rule 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001, made it imperative on an analyst to separately mention the result of each sample analyzed with full protocols applied thereon along with other details in the certificate issued for test/analysis by Laboratory—Chemical analyst is to perform confirmatory test not presumptive test to identify the narcotic substance—Record showed that report of Forensic Science Agency was not in line with the principles enunciated by the Supreme Court in the case reported as 2018 SCMR 2039—Appeal against conviction was allowed, in circumstances.

2020  YLR  2010   LAHORE-HIGH-COURT-LAHORE

NISHAT AHMAD VS State

1. 9(b)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—250 grams of Charas was recovered from the accused/appellant when police apprehended him on suspicion—Record showed that prosecution witness did not proceed to police station after the arrest of appellant for getting the FIR recorded rather deputed Pakistan Qaumi Razaqar (PQR) to get FIR registered—Said PQR was neither cited as a witness nor his statement under S. 161, Cr.P.C., was recorded by the investigating officer nor he was examined during trial of the case though he was also an eye-witness of the occurrence—Such aspect of the case showed that prosecution case was a figment of imagination of the complainant and the witnesses of the case—Possibility could not safely be ruled out of consideration regarding accused having been falsely implicated in the case, thus he was extended the benefit of doubt—Appeal against conviction was allowed, in circumstances.

2020  YLR  1970   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SHAHBAZ alias CHAMMA TINDA VS State

1. 426—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Suspension of sentence pending appeal—Bail, grant of—Violation of policy of awarding sentence to accused—Scope—Petitioner sought suspension of his sentence and release on bail during pendency of appeal—Petitioner was behind the bars since the date of his arrest and as such he had already served a period of two years and ten months out of his sentence of six years—No prospect of decision of the main appeal in the near future existed—Possibility could not be ruled out that the petitioner might serve out his entire sentence before the decision of his main appeal on merits and in such eventuality, purpose of filing of appeal would become infructuous—Sentence awarded by the Trial Court was against the policy of awarding sentence, according to which in case of recovery of charas exceeding 1 kg and upto 2 kg, an accused had to be convicted and sentenced to four years and six months rigorous imprisonment—Quantum of sentence awarded by Trial Court required serious re-consideration—Petition was allowed.

2020  YLR  1838   LAHORE-HIGH-COURT-LAHORE

MUKHTIAR HUSSAIN VS State

6. 9(c)—Possession of narcotics—Contradictory statements of witnesses—Safe custody—Scope—Accused was apprehended with 6.100 kilograms of opium—Complainant deposed that when Investigating Officer came to the place of recovery he handed over the case property to him—Investigating Officer deposed that he had returned the case property to the complainant after checking and weighing the same and that complainant handed over the case property to the Moharrar—Moharrar deposed that SHO (Station House Officer) had handed over the case property to him and that afterwards he handed over the same to another Moharrar—Second Moharrar deposed that the ex-Moharrar had handed over the case property to him on the next day—Such contradictions not only had a bearing on the credibility of the witnesses but also showed that the prosecution could not maintain safe custody of the case property from the place of recovery to the Laboratory—Positive report of Forensic Laboratory was of no legal consequence, in circumstances—Appeal against conviction was allowed, in circumstances.

2020  YLR  1838   LAHORE-HIGH-COURT-LAHORE

MUKHTIAR HUSSAIN VS State

1. 9—Qanun-e-Shahadat (10 of 1984), Art. 129(g)—Recovery of narcotics—Withholding eye-witness of recovery—Effect—Prosecution had not produced the constable who was an eye-witness of the recovery and had taken the complaint to the police station for registration of FIR; High Court held that adverse inference could be drawn against the prosecution for withholding such a witness.

2020  YLR  1553   LAHORE-HIGH-COURT-LAHORE

ABDUL GHAFFAR VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt— Inimical witness— Scope— Accused was alleged to have been found in possession of 1540 grams of charas—Case of accused was that his sister-in-law had filed application under S.22-A, Cr.P.C. against the complainant—Complainant (police official) during its pendency had tried to compound the matter with his family but when they refused he raided his house and arrested him in the present case—Sister-in-law of accused had appeared before the Trial Court and had advanced the case of accused through production of documentary evidence—High Court held that the accused through oral and documentary evidence had proved that the complainant (police official) was inimical towards him and had a motive to falsely implicate him—Police officials were as good witnesses as any other witness from the general public but this did not mean that the court should accept their testimony as gospel truth without taking the defence plea into consideration—Prosecution had failed to prove the charge against the accused beyond doubt—Appeal was allowed, in circumstances.

2020  YLR  1334   LAHORE-HIGH-COURT-LAHORE

MUNIR AHMAD VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Safe custody— Non-production of sample-bearer—Effect—Accused was found to have been in possession of 100 kilograms of churas poast—Report of Chemical Examiner revealed that samples were sent through Excise and Taxation Officer (ETO), however, the record was silent as to how the samples reached the office of ETO, for how long it remained there and whether it remained in safe custody—Such aspect had impaired and initiated the conclusiveness and reliability of the said report—Another chemical report which was exhibited by prosecution revealed that one sample parcel was sent through an Assistant Sub-Inspector, however, he was not produced by the prosecution—Safe deposit of said sample parcel was also not proved by the prosecution—Prosecution had failed to prove its case against the accused beyond shadow of doubt—Appeal was allowed.

2020  YLR  1334   LAHORE-HIGH-COURT-LAHORE

MUNIR AHMAD VS State

1. 9—Possession of narcotics—Safe custody—Scope—Unbroken chain of safe custody of recovered case property and parcel of sample is to be proved, otherwise conviction is not possible because recovery of narcotics is not corroboratory piece of evidence rather it constitutes the offence itself and entails punishment.

2020  YLR  961   LAHORE-HIGH-COURT-LAHORE

ABID HUSSAIN VS State

1. 9(c)—Recovery of narcotics—Appreciation of evidence—Recovery proceedings—Benefit of doubt—Un-explained delay in registration of FIR—Charas weighing 343 kilograms from 343 packets was recovered from secret cavities of truck—Trial Court convicted and sentenced accused persons to imprisonment for life—Validity—Neither weight was taken on spot of contraband substance allegedly recovered from accused persons nor any mention was made in recovery memo that in whose custody said packets of Charas remained from time of recovery till preparation of recovery memo—Investigating officer chalked out FIR with delay of 8 hours and 30 minutes—Prosecution failed to prove safe custody of narcotic substances got recovered from accused persons—Parcels of recovered Charas were not kept in safe custody and claim of prosecution that parcels of recovered Charas were not tampered with was doubtful—Patent infirmity was noticed in reports which was found to be fatal to case of prosecution—High Court declined to uphold and sustain judgment of conviction and sentence against accused persons passed by Trial Court—Accused persons deserved to be given benefit of doubt and findings in such regard were required to be set aside—Prosecution was not able to prove its case beyond all reasonable doubts against accused persons for offence under S.9(c) of Control of Narcotic Substances Act, 1997—High Court set aside conviction and sentence awarded to accused persons by Trial Court and acquitted them of charge—Appeal was allowed in circumstances.

2020  YLR  159   LAHORE-HIGH-COURT-LAHORE

NAUBAHAR alias BAHARU VS State

Ss. 9(c) & 48—Qanun-e-Shahadat (10 of 1984), Art. 133—Constitution of Pakistan, Art. 10-A—Recovery of narcotics—Appreciation of evidence—Fair trial—Due process of law—Cross-examination by accused himself—Accused was arrested by authorities and 1415 grams of Charas was allegedly recovered—Trial Court convicted and sentenced accused to imprisonment for four years and six months—Plea raised by accused was that he was not afforded an opportunity to cross-examine witnesses through advocate—Validity—Decision of case was delayed because of non-availability of prosecution witnesses—Trial Court committed material irregularity while conducting proceedings and not affording an opportunity to accused to produce his counsel—High Court set aside judgment passed by Trial Court and remanded matter for decision after affording an opportunity to accused to cross-examine prosecution witnesses—Appeal was allowed accordingly.

2020  YLR  93   LAHORE-HIGH-COURT-LAHORE

SHAHZAD alias SAJJAD VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, grant of—Accused allegedly suffering from blindness from both eyes since last one year—Further inquiry—Scope—On seeing the raiding party, accused allegedly tried to run away but after encircling him, the raiding party managed his arrest and thereby recovered charas weighing 1510 grams wrapped in a shopper bag—Contention of petitioner was that he was suffering from blindness since last one year—Validity—Report submitted by Superintendent Jail transpired that petitioner was diagnosed as a case of bilateral blindness/non-viable eyes—Case of petitioner called for further probe into his guilt within the scope of S. 497(2), Cr.P.C.—Post arrest bail was allowed, in circumstances.

2020  PCrLJ  1410   LAHORE-HIGH-COURT-LAHORE

NASIR IQBAL VS State

Ss. 9(c) & 36—Possession of narcotics—Appreciation of evidence—Failure of prosecution to specify number of packets containing narcotics—Non-production of vehicle used for transporting narcotics the sample-bearer—Consolidated report of more than one samples—Photocopy of report of Chemical Examiner—Effect—Customs Inspector, on prior information, apprehended the accused persons while transporting 234 kilograms of charas and 22 kilograms of opium—Prosecution case was silent about the total number of packets that were recovered, therefore, samples could not be considered as representative samples—Prosecution had neither produced the car in which the accused persons were transporting narcotics nor its registration book before the trial court—Safe transmission of sample parcels to the laboratory was not established—Reports of Chemical Examiner reflected that two sealed parcels of charas and two of opium were received in his office but instead of preparing separate reports for each sample containing details of the protocols applied, the Chemical Examiner drew up consolidated reports from the aforesaid samples which was flagrant violation of R. 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001—Reports of Chemical Examiner were not produced in original and the prosecution did not even lead any secondary evidence to prove them—Case property, sealed in an iron box, when produced before trial court showed signs of tampering—Conviction and sentences handed down by Trial Court were set aside—Appeal was allowed, in circumstances.

2020  PCrLJ  1295   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD YASEEN VS State

Ss. 9(c) & 36—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Transportation of narcotics—Reports of test or analysis by the Government Analysts—Appreciation of evidence—Full protocols of tests applied—Scope—Accused were apprehended with 28 packets of charas weighing 33.600 kilograms—Complainant, out of the recovered charas, drew 10 grams from each packet and prepared 28 sealed samples for chemical analysis and preserved the remaining bulk through three separate plastic bags—Reports of Forensic Laboratory were deficient in material particulars being consolidated of three to five samples and were not in the prescribed form as they did not contain the details of the protocols applied—Rule 6, Control of Narcotic Substances (Government Analysts) Rules, 2001 was mandatory to the extent that full protocols had to be mentioned in the report of the Chemical Examiner and its non-compliance rendered the report inconclusive and unreliable—In the present case, reliable reports of the Government Analyst were not available to support the evidence of recovery furnished by complainant—Convictions of the accused could not be sustained—Appeals against conviction were accepted, in circumstances.

2020  PCrLJ  1070   LAHORE-HIGH-COURT-LAHORE

KHALID KHAN VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Possessing, trafficking of narcotics, aiding, abetting or associating in narcotic offences—Appreciation of evidence—Prosecution case was that 17 packets of charas, 1200 grams each total weighing 20.400 kgs and 1½ kgs opium contained in three packets of 500 grams each, were recovered from two cars belonging to accused—Prosecution witnesses were police officials—Defence had alleged that no private witness was associated at the time of recovery, which was violation of provision of S. 103, Cr.P.C.—Validity—Mere non-association of the witnesses from the public was not sufficient to vitiate the search and recovery proceedings as the applicability of S. 103, Cr.P.C., had been specifically ousted to the proceedings conducted under the Control of Narcotic Substances Act, 1997, in terms of S. 25 of the said Act—Being special law, the Act, was given overriding effect by virtue of its S. 76—Non-association of public witness during the recovery proceedings was of no consequence—Police Officials were equally good witnesses in absence of any proven enmity—Appeal against conviction was dismissed, in circumstances.

2020  PCrLJ  1070   LAHORE-HIGH-COURT-LAHORE

KHALID KHAN VS State

1. 9(c)—Possessing, trafficking of narcotics—Appreciation of evidence—Complainant as Investigating Officer—Effect—Law did not place any embargo on the complainant to assume the role of the Investigating Officer—Under the law police officer was not prohibited to be complainant if he was a witness to the commission of an offence and also to be an Investigating Officer, so long as it did not in any way prejudice the accused person.

2020  PCrLJ  1070   LAHORE-HIGH-COURT-LAHORE

KHALID KHAN VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 342—Possession and trafficking narcotics—Appreciation of evidence—Specific plea taken by accused in his statement—Effect—Accused took specific plea in his defence that only 500 grams opium was recovered from his possession but the Anti Narcotic Force staff in collusion with actual culprits from whom the charas and opium was recovered, let them off and planted two cars and huge quantity of charas and opium upon him—Despite specific defence plea, neither accused opted to record his statement under S. 340(2), Cr.P.C., nor any evidence in defence was produced—Mere bald and general assertions were not sufficient to discard the overwhelming prosecution evidence—Admittedly, accused was driver of the car from which the alleged narcotic was recovered—Concealment of narcotics in the car was well within his knowledge—Appeal against conviction was dismissed, in circumstances.

2020  PCrLJ  1070   LAHORE-HIGH-COURT-LAHORE

KHALID KHAN VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 4 & 5—Possession and trafficking narcotic—Delay in sending samples of contraband for chemical analysis—Effect—In the present case, alleged recovery was effected on 7th November, 2013 whereas sample parcels were sent to the office of Chemical Examiner on 11th November, 2013—Although there was minor delay in sending parcels to the Chemical Examiner but the Rules to that effect were directory and not mandatory—Even otherwise, there was nothing on record to establish that the said parcels were ever tampered with rather the evidence led by the prosecution established that the parcels received by the said agency remained intact—Statements of three official witnesses went un-rebutted to that effect—Prosecution had successfully established the safe custody and transmission of the case property to the office of Chemical Examiner—Even otherwise, dispatching of sample beyond 72 hours was not a sine qua non—Mere delay in sending the sample to the laboratory was not at all fatal to the prosecution case because Rr. 4 & 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, did not place any bar on the Investigating Officer to send the samples beyond 72 hours of seizure or recovery of the contraband—Appeal against conviction was dismissed, in circumstances.

2020  PCrLJ  1070   LAHORE-HIGH-COURT-LAHORE

KHALID KHAN VS State

20. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Possession and trafficking narcotics— Appreciation of evidence—Report of Government Analyst—Mentioning of protocols of test applied—Effect—Prosecution case was that 17 packets of charas, 1200 grams each total weighing 20.400 kgs were recovered from a car driven by accused, out of which ten grams charas from each of 17 packets was separated for chemical analysis, while remaining charas of 17 packets was made into another sealed parcel—On disclosure of accused, 1-1/2 kgs opium contained in three packets of 500 grams each were also recovered from another car belonging to him—Record showed that recovery witness and Investigating Officer remained consistent and firm qua recovery effected from the accused—Said witnesses were tested through a lengthy cross-examination but their evidence could not be shattered—Apparently, sufficient evidence was available to prove the guilt of the accused—Accused being the driver of the car was the incharge of the vehicle and his culpability was established beyond any shadow of doubt—Chemical Report also provided due support to the prosecution case—Mandatory requirement of R. 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001, had been complied with and no legal infirmity in the same was found—Accused had failed to produce any tangible material to rebut the trustworthy and confidence inspiring evidence of the prosecution witnesses—Appeal against conviction was dismissed, in circumstances.

2020  PCrLJ  1025   LAHORE-HIGH-COURT-LAHORE

NAZIR AHMED VS State

1. 9(c)—Recovery of narcotics—Scope—Prosecution had to prove the recovery from the possession of accused and then a claim of conviction could be examined.

2020  PCrLJ  1025   LAHORE-HIGH-COURT-LAHORE

NAZIR AHMED VS State

1. 9(c)—Possession and trafficking of narcotics—Appreciation of evidence—Benefit of doubt—Safe custody of contraband substance by police not established—Safe transmission of samples to the Chemical Examiner not established—Effect—Prosecution case was that 91 packets of charas each weighing one kilogram, total weighing 91 kilograms were recovered from the secret cavities installed in the floor of truck of accused—Out of recovered charas, 20 grams from each packet was separated for chemical analysis—Record showed that complainant in his examination-in-chief claimed that he knew the accused previously, but surprisingly the final report was submitted against the accused in S. 512, Cr.P.C. without describing any effort of arrest of the accused—Such attitude on part of the police was quite strange and even was against the implied duties— In the present case, the identification of the accused was based on hearsay evidence and the same did not come under the definition of “res-gestae” which required direct evidence—Such identification of the accused was not reliable—Investigating Officer deposed that he handed over the case property and samples parcels to the Moharrar at the police station—Moharrar in his examination-in-chief acknowledged only receiving of 91 sample parcels from the Investigating Officer—Deposition of Moharrar was silent with regard to receiving of case property or its safe custody—Meaning thereby, the case property had not been kept in Malkhana in safe custody, as such the safe custody of case property could not be proved—Prosecution had tendered in evidence copy of report of Chemical Examiner instead of original one—No explanation on the record was available as to why the original was not produced—Author of the said report had also not been produced before the Trial Court—Truck had not been produced before the Trial Court—Circumstances established that prosecution case was highly doubtful and based on un-natural and unbelievable story—Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

2020  PCrLJ  662   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD RASHID VS State

1. 9(c)— Possession of narcotics— Appreciation of evidence—Complainant functioning as Investigating Officer— Mitigating circumstances—Scope—Appellant filed appeal against his conviction and sentence challenging the judgment passed by Trial Court whereby he was convicted and sentenced for an offence punishable under S. 9(c), Control of Narcotic Substances Act, 1997—Witnesses produced by prosecution narrated the facts leading to recovery of charas weighing 1025 grams—Recovered charas was duly exhibited in evidence, which was taken into possession through recovery memo—Witnesses had given each and every detail of the recovery proceedings and were cross-examined at length but nothing fruitful cropped up during cross-examination—Tenor of cross-examination revealed that the facts in issue were not challenged seriously—Report of Forensic Science Agency confirmed the nature of recovered substance—No prejudice was caused to the accused by functioning of the complainant as an investigating officer—Prosecution had successfully proved its case beyond shadow of doubt by producing relevant and admissible evidence—High Court, while maintaining the conviction but taking into consideration mitigating circumstances such as appellant was a young man, that this was his first conviction and that he, while being on bail and during the trial, had not repeated the offence, reduced the sentence of imprisonment of four years to that of already undergone—Appeal was dismissed with such modification of sentence.

2020  PCrLJ  662   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD RASHID VS State

1. 9(c)— Possession of narcotics— Indeterminate sentence—Reformative punishment—Scope—Offence under S. 9(c) of the Control of Narcotic Substances Act, 1997 has been made punishable with imprisonment which may extend to fourteen years or imprisonment for life or death—Intention of Legislature for providing indeterminate sentencing, by using the words “may extend to” in S. 9(c) of the Control of Narcotic Substances Act, 1997, is that it provided for rehabilitation of a convict—Such provision of law is indicative that the Courts have to appreciate circumstances indicative of reformation of a convict before deciding about the quantum of sentence.

2020  PCrLJ  644   LAHORE-HIGH-COURT-LAHORE

GHULAM ABBAS VS State

Ss. 9(c) & 15—Possession of narcotics—Aiding, abetment or association in narcotic offences—Receipt in the laboratory and examination of sample with reference to Test Memorandum—Appreciation of evidence—Benefit of doubt— Contradictory statements of witnesses—Collective report of more than one samples—Non-production of case property—Safe custody—Scope—Accused persons were alleged to have been found transporting narcotics—Complainant deposed that all the accused persons pointed out the narcotics lying in the trunks of the cars whereas recovery witness contradicted him by saying that the complainant had opened the trunks—Complainant and recovery witness had not specifically stated about affixture of any impression seal on the articles seized from the spot—Chemical Examiner had given collective report of all the samples—Cars in question were not produced before the trial court—Complainant had not disclosed about the location of narcotics during the time between drafting of complaint and his reaching back in the police station after completion of proceedings—Prosecution was not able prove its case beyond all reasonable doubts—Appeal was accepted, in circumstances.

2020  PCrLJ  524   LAHORE-HIGH-COURT-LAHORE

ALLAH RAKHA VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Contradictions in statements of witnesses—Safe custody of recovered narcotic not proved—Effect—Accused was found to be in possession of 1500 grams of charas—Complainant sealed the narcotic into two separate parcels and took them into possession—Moharrer of Police Station deposed that complainant/Investigator deposited a sealed sample parcel, which he handed over to a constable for onward transmission to the office of Chemical Examiner—Moharrer had not stated that the remaining quantity of contraband (other than sample parcel) was also deposited with him—Constable deposed that the Moharrer handed him over one sealed parcel of charas which he deposited in the office of Chemical Examiner and he never took the parcel of sample to the office of Excise and Taxation Officer—Report of Chemical Examiner depicted that the sample was forwarded through Excise and Taxation Officer—Safe custody of case property and sample thereof from day one was missing and no conclusive proof was available to prove that the recovered charas was deposited in Maalkhana and the same was not tampered with—Foundation on which whole case of prosecution was built had no legs to stand and the evidence thus produced was not free from doubts— Appeal against conviction was allowed, in circumstances.

2020  PCrLJ  524   LAHORE-HIGH-COURT-LAHORE

ALLAH RAKHA VS State

1. 9—Possession of narcotics—Chain of safe custody—Scope—Chain of safe custody begins with the recovery of narcotics; it includes the separation of representative sample and its dispatch to the Narcotics Testing Laboratory—Prosecution must establish that the chain of custody is unbroken, unsuspicious, indubitable, safe and secure—Any break in the chain of custody or lapse in the control of sample would cast doubts, impair and vitiate the conclusiveness of the report prepared by Chemical Examiner.

2020  PCrLJ  477   LAHORE-HIGH-COURT-LAHORE

SAMAR HAYAT VS State

1. 75—Control of Narcotic Substances Act (XXV of 1997), S. 9—Enhanced punishment after previous conviction—Possession of narcotics—Scope—Section 75, P.P.C. did not have any nexus with the question of enhanced sentence to be inflicted under the penal provisions of Control of Narcotic Substances Act, 1997 as the legislature has confined its scope only to the extent of conviction and sentence for offences punishable under Chap. XII or Chap.XVII of Pakistan Penal Code, 1860—Application of S. 75, P.P.C. with regard to awarding enhanced sentence to a previously convicted person of an offence punishable under any law other than Chap. XII or Chap. XVII of Pakistan Penal Code, 1860, would not be justifiable.

2020  PCrLJ  477   LAHORE-HIGH-COURT-LAHORE

SAMAR HAYAT VS State

Ss. 9(c) & 9(a)—Possession of narcotics—Appreciation of evidence—Sentence—Scope—Failure of prosecution to separate sample from each parcel—Effect—Accused was apprehended by the police and during his personal search 2115 grams of charas was recovered—Complainant admitted during cross-examination that charas was packed in several number of pieces and from all such pieces only 10 grams of charas was separated—Sample parcel containing 10 grams of charas allegedly taken from different pieces of the contraband sent to the Forensic Science Laboratory could not be considered as a representative sample of the bulk in view of the which, conviction for the bulk of narcotics weighing 2115 grams of charas was not warranted under the law—Accused could only be convicted and sentenced for the possession of contraband only to the extent of sample parcel—Conviction and sentence awarded to the accused under S. 9(c) of Control of Narcotic Substances Act, 1997 was set aside and he was convicted under S. 9(a) of the Act and sentenced to rigorous imprisonment for six months— Appeal was dismissed.

2020  PCrLJ  462   LAHORE-HIGH-COURT-LAHORE

KHALID MAHMOOD VS State

1. 9—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Possession of narcotics—Report of analyst—Non-mentioning of full protocols of the test—Duquenois Levine test—Tetrahydrocannabinol test—Scope—Accused person was alleged to have been in possession of charas, for which he was convicted—Report of Chemical Examiner revealed that full protocols of the test were not applied; that the same was not in the prescribed form and not fully answered; that it contained only the result of test analysis and that Duquenois Levine test was applied and the examiner had expressed his opinion on its basis that the sample was of charas—Duquenois Levine test only detect presence of ‘drug’ in the sample and it did not determine nature or kind of ‘drug’—For detection of charas, Chemical Examiner’s Report was to show tetrahydrocannabinol as positive—Patent infirmity in the report of Chemical Examiner was found, which was fatal to the prosecution case—Appeal was accepted and the appellant was acquitted of the charge, in circumstances.

2020  PCrLJ  407   LAHORE-HIGH-COURT-LAHORE

SHAH MUHAMMAD alias SHAHU VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotics, aiding, abetting or associating in narcotic offences—Appreciation of evidence—Prosecution case was that 1250 grams of charas and 400 grams of heroin was recovered from the possession of the accused—Prosecution witnesses were police officials—Defence had alleged that prosecution had not produced even a single independent/private witness who could corroborate their testimony—Validity—Section 25 of the Control of Narcotic Substances Act, 1997, had excluded the applicability of S. 103, Cr.P.C., therefore, association of witnesses from the public was not mandatory in such cases.

2020  PCrLJ  407   LAHORE-HIGH-COURT-LAHORE

SHAH MUHAMMAD alias SHAHU VS State

Ss. 9(c) & 29—Possession of narcotics—Appreciation of evidence—Prosecution case was that 1250 grams of charas and 400 grams of heroin were recovered from the possession of the accused—Record showed that case of the prosecution hinged on the evidence of marginal witness of recovery memos and Investigating Officer—Statements of said witnesses were coherent and inspired confidence—Said witnesses had corroborated each other on all material points, including date, time and place of occurrence, the quantity of the recovered narcotics and the manner in which recovery was effected—Said witnesses were consistent on all facts and their version was vouched by the report of the Forensic Science Laboratory—Once the prosecution was able to bring on record evidence to discharge the initial onus of proof then the burden would shift upon the accused to prove otherwise which he failed to do so in the present case—Report of Forensic Science Laboratory showed that the received items were found to contain heroin and charas respectively, which was in line with the relevant provisions of law—Prosecution had proved its case against the accused beyond reasonable doubt, in circumstances— Appeal was dismissed accordingly.

2020  PCrLJ  350   LAHORE-HIGH-COURT-LAHORE

TARIQ MEHMOOD VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Contradictory statements of witnesses—Scope—Accused was convicted by Trial Court for possession of 1110 grams of heroin—Complaint had mentioned that 60 grams were separated as sample and prepared two sealed parcels, one of the sample and other of the remaining quantity—Complainant during his statement before Trial Court deposed that his stance in the complaint regarding preparation of two sealed parcels was incorrect—Moharrar admitted that in his statement recorded under S. 161, Cr.P.C., he had not mentioned that two sealed parcels were delivered to him—Investigating officer admitted that he had not mentioned in any statement that he handed over the parcel of remaining recovered heroin to Moharrar—Facts and circumstances showed that prosecution case and the charge against the accused could not be proved beyond shadow of doubt—Appeal was accepted and impugned judgment was set aside.

2020  PCrLJ  178   LAHORE-HIGH-COURT-LAHORE

ARZI GULL VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Broken chain of safe custody—Effect—Police, on spy information, apprehended accused persons and recovered charas from the possession of both accused persons, which was separately secured and sealed into two parcels—Report of Forensic Science Agency revealed that after sampling for analysis, the remaining portion of case property was sealed and handed over to the person submitting the same—Statement of Moharir reflected that sample-bearer had not handed over parcels of case property back to him after return from Forensic Science Agency—Sample-bearer, in his statement under S. 161, Cr.P.C., had not mentioned the fact that after receiving parcels of case property from Forensic Science Agency he had handed over the same to Moharir—Sample-bearer had not even deposited the parcels of case property in the malkhana—Statement of Investigating Officer revealed that neither sample-bearer nor the Moharir had uttered before him that case property was received back from the Forensic Science Agency through the sample-bearer—Complainant had categorically stated that the recovered charas was in the shape of slabs and was wrapped in white plastic shopping bag, whereas case property produced in court was wrapped in dark brown colour and in shape of countless small pieces—Chain of custody of case property from its recovery to its production in the court was not established, rather it was broken—Prosecution had failed to prove the case against the accused beyond shadow of doubt—Appeal was allowed, conviction and sentence recorded against the accused persons was set aside, in circumstances.

2020  PCrLJ  142   LAHORE-HIGH-COURT-LAHORE

ARSHAD MEHMOOD VS State

2. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 & 6—Seizure of narcotics—Appreciation of evidence— Chemical analysis— Non-mentioning of quantity of consumed narcotics for testing and unconsumed narcotics in report—Effect—Prosecution case was that 02-packets of charas weighing 1200-grams each, total 2.400 kilograms was recovered underneath the driving seat of vehicle driven by accused—Out of the recovered substance, 10-grams charas from each packet was separated for chemical analysis—Record showed that the reports of Analyst were vague since it did not show the extent of protocols—After completing the test, the Analyst would forthwith supply report to the sender in quadruplicate together with full protocols of the tests applied as specified in Form-II; full protocols of the each test/analysis were integral part of para No.1 of Form-II—Since the samples did not conform to test protocols, same was declared not tested on standard quality as defined in the Rules—Such was not a sufficient compliance as the applied test was not mentioned in the reports—Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001contemplated the analysis and test as two different things—Rule and Form-II required that full protocols of the test should be stated after test or analysis—Analyst reports could not be said to be full and complete, disclosing the full protocols of the test applied, except bare opinion that the samples contained charas—Nothing was available on record, on the basis of which, the truthfulness of the reports could be assessed—Patent infirmity had been noticed in the reports and it was not possible to uphold and sustain the judgment of conviction and sentence against the accused, in circumstances—Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

2020  MLD  1879   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AKHTAR VS State

1. 9(c)—Possession of narcotics—Consolidation of bags recovered from accused—Effect—Accused was alleged to have been found in possession of three bags of bhukki weighing a total 30 kilograms—Complainant took 500/500 grams from each bag as sample and prepared one consolidated parcel of remaining contraband—Accused could not have been sentenced to imprisonment for life as prosecution had destroyed the evidence by consolidating three bags of recovered contraband—High Court observed that only 1500 grams of bhukki could be considered against the accused—Accused had served out five years, six months and five days in imprisonment—Sentence already undergone by the accused was considered to be adequate by the High Court—Appeal was dismissed, however, the sentence of accused was reduced.

2020  MLD  1879   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AKHTAR VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Scope—Accused was alleged to have been found in possession of 30 kilograms of bhukki—High Court, in view of recovery of narcotic substance fully substantiated by recovery witness, complainant, investigating officer, positive report of narcotics analysis with regard to parcels of samples and the fact that the complainant and other officials had no previous ill will to falsely involve the accused in the case, held that the accused was rightly convicted and sentenced by the Trial Court—Accused, through his counsel, had admitted his presence at the place of occurrence—Conviction recorded by Trial Court was maintained—Appeal was dismissed.

2020  MLD  1525   LAHORE-HIGH-COURT-LAHORE

NAZIR AHMAD alias GUGGI VS State

1. 9(c)—Possession of narcotics—Contradictory evidence—Withholding best evidence—Safe custody—Scope—Accused was apprehended with 1259 grams of charas along with weighing scale, bots and wattak money—Eye-witness of recovery deposed that the charas was in two pieces while the Investigating Officer said that it was in one piece—Complainant deposed that he made three parcels of the recovered articles but the eye-witness of recovery indicated that they were more than three—Moharrar categorically stated that the parcels were four in number—Complainant had sent the complaint to the police station for registration of FIR through a constable but said constable was not examined—Prosecution had failed to prove safe custody of the case property and safe transmission of the sample parcel from the crime scene to the Forensic Laboratory, which was mandatory—Complainant deposed that he sealed the recovered charas in the shape of ‘pothli’, however, the Trial Court observed that the parcel produced before it was not in that shape—Charas was not the same, which was allegedly recovered from the accused and he was also not confronted with the same—Positive report of Forensic Laboratory was of no avail to the prosecution, in circumstances, as the primary evidence was liable to be discarded—Appeal against conviction was allowed, in circumstances.

2020  MLD  1290   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SAJID VS State

1. 6—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 36— Possession of narcotics—Report of Government Analyst—Full protocols—Term “Protocol” means an explicit, detailed plan of an experiment, procedure or test or a precise step-by-step description of a test, including the listing of all necessary reagents and all criteria and procedures for the evaluation of the test data—“Full protocols” include a description of each and every step employed by the Government Analyst through the course of conducting test—High Court observed that report under R. 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 must specify every test applied for the determination of the seized substances with full protocols adopted to conduct such tests.

2020  MLD  1290   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SAJID VS State

Ss. 9(c) & 36—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Report of Government Analyst—Failure to mention full protocols in test report—Effect—1325 grams Charas was recovered from the accused when, on spy information, a raid was conducted upon him by the police—Record showed that Government Analyst while preparing the report had not complied with the mandatory provisions of R. 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001—Requirements of said Rule were mandatory and if the same had not been complied with, the report of the Government Analysts would lose its reliability and evidentiary value—Non compliance of R. 6 and absence of any of the enumerated mandatory elements/requirements frustrated the purpose and object of the Control of Narcotic Substances Act, 1997—Report prepared by the Government Analyst, did not carry separate result of each test applied except a concluding result—Accused, in case of narcotics, carrying a stringent sentence could not be convicted and sentenced only on the basis of oral assertions unless it was established with certitude that the material allegedly recovered from his possession was a narcotic—Prosecution in the present case had failed to do so—Appeal against conviction was allowed and accused was acquitted from the charge by extending benefit of doubt to him, in circumstances.

2020  MLD  1122   LAHORE-HIGH-COURT-LAHORE

KHYBER ALI VS State

5. 9(c)—Possession of narcotics—Appreciation of evidence—Safe custody—Scope—Accused was alleged to have been found in possession of 5.120 kilograms of charas—Complainant deposed that he had handed over the case property including samples and custody of accused to the investigating officer—Investigating officer acknowledged such fact but he did not say as to what he did with them—Moharrar of the police station deposed that the case property was deposited in the malkhana with some delay—Case property, at some point of time, was transferred to another malkhana but the record was silent as to who took the same there—Report of Forensic Laboratory showed that sample containing approximately 5070 grams of charas was submitted in the laboratory by an Assistant Sub-Inspector of Police but no evidence was available on record showing as to where the sample came from and how it reached to his hand—Weight of residue, after separation of samples, did not match with the parcel that was delivered in the Forensic Laboratory—Prosecution had failed to establish safe custody of the case property as well as safe transmission of the sample parcels to the Forensic Laboratory—Appeal was accepted, in circumstances.

2020  MLD  934   LAHORE-HIGH-COURT-LAHORE

Syed MOON ALI SHAH VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Benefit of doubt—Prosecution case was that from the vehicle driven by the accused on checking 7-1/2 packets of opium were recovered from the secret cavities under the driving seat and eight packets of opium were recovered from the secret cavities of left side of the seat of the car—Each packet was found 1200-grams opium and on weight of ½ packet, it was found 500-grams—Out of the recovered substance 60-grams opium and from 500-grams, 25-grams opium was separated for chemical analysis—Record showed that recovery of 7-1/2 packets of opium from secret cavities under the driving seat and 8 packets of opium from the secret cavities under the left side of the seat of the car, total weighing 18500 grams, driven by the accused had not been proved by the prosecution—Complainant had admitted that in the recovery memo, the key of the alleged car was not taken into possession by him—Admittedly, complainant had straightway mentioned the name of the accused in the complaint without any interrogation—Parcel of the recovered substance had neither been signed by the complainant nor the witnesses—Place of recovery was not pointed out in the site plan—Investigating Officer had not inspected the secret cavities of the vehicle from which alleged contraband substance was recovered—Investigating Officer along with counsel for the parties examined the vehicle during the hearing of the appeal, with the permission of the court—Investigating Officer, thereafter, had stated that secret cavities were present under the driving seat but now no such secret cavity was available in the car underneath the seats—Even court had sought the assistance of denter who pulled out the seat and examined minutely and no sign of any cavity was found underneath the seats—Non-presence of cavities in the vehicle created doubt on the testimony of prosecution witnesses—Prosecution had failed to establish that the alleged contraband substance was recovered from the secret cavities of the alleged vehicle driven by the accused-appellant—Prosecution had failed to prove the charge against the accused beyond any shadow of doubt—Appeal was allowed and accused was acquitted, in circumstances.

2020  MLD  934   LAHORE-HIGH-COURT-LAHORE

Syed MOON ALI SHAH VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Safe custody of recovered substance—Prosecution case was that 18500-grams opium was recovered from the secret cavities of the vehicle driven by the accused—Prosecution had not established safe custody of recovered substance—Many contradictions were found as to preparation of parcels of samples and the remaining case property by the complainant—Complainant did not state exact number of parcels prepared by him—Material contradictions in between the evidence of the prosecution witnesses were really omissions as regards details of the number of parcels prepared by the complainant and handing over to the Moharrar—Evidence of eye-witnesses could not be relied upon because of contradictions and inconsistencies in their evidence—Prosecution was supposed to establish by cogent evidence that the alleged opium weighing 18500 grams seized from the vehicle was kept in safe custody—No explanation for said failure was furnished—Circumstances established that prosecution had not been able to prove safe custody of the recovered substance through material and cogent evidence.

2020  MLD  794   LAHORE-HIGH-COURT-LAHORE

ABDULLAH VS State

1. 9(c)—Possessing narcotic—Appreciation of evidence—Recovery of narcotic from the possession of accused—Reliance—Scope—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

ABDULLAH VS State

Rr. 5 & 6—Control of Narcotic Substances Act (XXV of 1997), S. 9—Possession of narcotic—Non-compliance of R. 6 Control of Narcotic Substances (Government Analyst) Rules, 2001—Effect—In the present case, report of the Chemical Examiner had only one signature of the Government Analyst whereas the Rules stipulated signatures of two officers—Even the said report was completely silent regarding the necessary protocols of the test applied coupled with the fact that no description and specification of sealed parcels qua the recovery effected from the accused had been mentioned therein.

2020  MLD  794   LAHORE-HIGH-COURT-LAHORE

ABDULLAH VS State

1. 9(c)—Qanun-e-Shahadat, (10 of 1984), Art. 129(g)—Possessing narcotic—Appreciation of evidence—Benefit of doubt—Withholding material evidence—Effect—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.

2020  MLD  690   LAHORE-HIGH-COURT-LAHORE

EWIZ KHAN VS State

25. 9(c)—Possession and trafficking of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that eleven kilograms heroin was recovered from two metal decoration pieces belonging to accused—Out of the recovered substance, two sample parcels of 5-grams each were prepared for chemical analysis—Record showed that prosecution had not established safe custody of recovered substance—Seizure of the alleged narcotic substance was shown to have been made on 25.02.2010 at 9.40 p.m.—Two parcels of samples weighing five grams were taken from the seized substance—One parcel of remaining seized substance was prepared at the spot—Complainant stated that at 3.00 a.m. he handed over complaint at Customs House—First Information Report showed that incident was reported to Customs Authorities at 11.50 a.m. on 25.5.2010—Official witness deposed that complaint was received a 9.30 p.m. and FIR was lodged at 9.45 p.m.—Inconsistencies and contradictions with regard to the deposit of the parcels of the samples, remaining recovered contraband and time of reporting incident were apparent—From the time of the seizure till the deposit of parcels of samples and remaining contraband in the State Ware House, it was not established as to where those were laid or handled by how many people and in what ways—Mere oral evidence of the prosecution witnesses did not discharge the heavy burden of responsibility, which lay on the prosecution—Prosecution had not been able to prove safe custody of the recovered substance through material and cogent evidence—No evidence was available to connect the report of Chemical Examiner with the substance seized from the possession of the accused—Said fact alone created a ground to believe that the parcels of sample and case property were not kept in safe custody and the claim of the prosecution that the case property was not tampered with was doubtful—Moharrar/incharge of the Ware House as well as the person who deposited the sealed parcel of the samples with the office of the Chemical Examiner had not been examined by the prosecution—In absence of deposition by the moharrar/incharge of the Ware House to whom sealed parcel of sample and remaining contraband was handed over for keeping in safe custody and the person who carried the sealed parcel of the sample to the Chemical Examiner to  the  effect  that  the  parcel  of  the  sample  remained  intact  and  had  not been tampered with, conviction by the Trial Court was liable to be set aside—Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

2020  YLRN  140   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ASLAM VS State

1. 9(c)—Recovery of narcotics—Appreciation of evidence—Safe custody—Contradictory statements— Scope— Accused, during investigation, led the police party to his residential room and got recovered 40 packets of charas weighing 50 kilograms—Complainant did not state in his deposition about the place where he had kept parcels of samples and the remaining case property—Mere oral statements of police officials as to recovery of charas weighing 50 kilograms did not discharge heavy burden of responsibility, which was laid on the prosecution—Moharrar deposed that he gave 40 parcels of samples to the sample-bearer for transmission to Forensic Laboratory but the sample-bearer deposed that he received 80 parcels—Prosecution could not prove safe custody of the parcels of samples drawn from the allegedly recovered substance through material and cogent evidence—Appeal against conviction was accepted, in circumstances.

2020  YLRN  104   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD NADEEM VS State

1. 426— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Suspension of sentence—Petitioner was convicted and sentenced to imprisonment for four years and six months with fine of Rs.20,000/-, and benefit of S.382-B, Cr.P.C., was also extended to him—Perusal of jail report showed that the un-expired period of sentence of the petitioner was 02 years, 07 months and 22 days—Appeal was filed by the petitioner in the year 2019 but the same could not be decided so far due to heavy backlog—Possibility could not be ruled out that the petitioner might serve out his remaining sentence before the decision of his main appeal on merits, which would amount to awarding punishment to the petitioner in advance—Petition was allowed and sentence of petitioner was suspended and he was admitted to bail, in circumstances.

2020  YLRN  81   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD JAHANGIR VS State

3. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Possession of narcotics—Report of Government Analysts—Failure to mention full protocols in test report—Effect—Three packets of charas weighing 1200 grams each (total 3.600 kilograms) were recovered from the shopping bag being carried by the accused—Conviction could not be recorded against accused on the basis of the testimony of the prosecution witnesses unless they were supported by positive report of the Chemical Examiner drawn in accordance with law—Report of the Chemical Examiner did not contain details of the protocols applied and was, thus, violative of R.6 of the Control of Narcotic (Government Analysts) Rules, 2001—Full protocols ought to be mentioned in the report of the Chemical Examiner and its non-compliance rendered the report inconclusive and unreliable—Reliable chemical examiner report being not available to support the evidence of recovery furnished by the prosecution witnesses, conviction of the accused could not sustain—Appeal against conviction was allowed, in circumstances.

2020  YLRN  20   LAHORE-HIGH-COURT-LAHORE

LIAQAT ALI alias LIAQI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 9(b)—Possession of narcotics—Bail, grant of—Borderline case—Scope—Allegation against the accused was that he was apprehended by the police and 1230 grams of charas was recovered from his possession—Weight of allegedly recovered material was slightly higher than the maximum weight mentioned in S. 9(b) of the Control of Narcotic Substances Act, 1997 and brought the case within the mischief of S. 9(c) of the Control of Narcotic Substances Act, 1997—Charas, as mentioned in the FIR, was wrapped in a bag at the time of recovery—FIR did not clarify as to whether the charas was taken out of the bag or it was weighed along with the bag—Trial Court, after recording of evidence would determine the net weight of the charas and as to whether the case of the petitioner fell under S. 9(b) or S.9(c) of the Control of Narcotic Substances Act, 1997—Petitioner was not involved in any other case of similar nature—Petition for grant of bail was accepted.

2020  PCrLJN  178   LAHORE-HIGH-COURT-LAHORE

AAMIR HUSSAIN alias MOTA VS State

71. 9(c)—Possession of narcotics—Appreciation of evidence—Accused was nabbed with 1430 grams charas and Wattak money of Rs.350—Prosecution witnesses had stated that a sample parcel of 71.5 grams was drawn from the recovered substance for chemical analysis while its report showed that the sample weighed 117.15 grams—Report of Chemical Analyst was of fundamental importance in such cases—Prosecution was obligated to prove safe custody and safe transmission of the sample parcel from the crime scene to the Laboratory, any break in the chain would uproot the prosecution case—Where safe custody or safe transmission of the alleged drug was not established, the report of the Government Analyst became doubtful and unreliable—In the present case, reliable report of Government Analyst was not available to support the evidence of recovery furnished by the complainant and prosecution witnesses therefore, conviction of the accused could not sustain—Appeal against conviction was allowed, in circumstances.

2020  PCrLJN  173   LAHORE-HIGH-COURT-LAHORE

MEHBOOB ALAM VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotics—Mode of making searches and arrest—Search to be made in presence of witnesses—Appreciation of evidence—Scope—Accused was arrested by complainant with 1365 grams of charas—Constable accompanying the complainant had fully corroborated the statement of complainant on all material aspects particularly the date, time, place and the manner in which the recovery was effected—Report of the Chemical Examiner had confirmed that the recovered substance was charas—Variations pointed out by the accused in the statements of witnesses were trivial and did not discredit them—Section 25 of Control of Narcotic Substances Act, 1997 excluded the application of S. 103, Cr.P.C. in narcotic cases—Accused, in his statement under S. 342, Cr.P.C., had stated that he along with two others were apprehended by the police from a playground but he did not examine said two persons, who were vital to prove his innocence—Prosecution had proved the charge against the accused beyond reasonable doubt—Appeal against conviction was dismissed, in circumstances.

2020  PCrLJN  165   LAHORE-HIGH-COURT-LAHORE

KAMRAN VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Possession of narcotics—Report of result of test or analysis—Appreciation of evidence—Benefit of doubt—Contradictory statements of witnesses—Scope—Accused was apprehended with 25 kilograms and 750 grams of charas for which he was convicted—Record keeper of Excise and Taxation Office had stated in his examination-in-chief that a constable along with 21 sealed parcels said to contain charas had come to the office of Excise and Taxation Officer (ETO) for their dispatch to the office of Chemical Examiner but the constable, during his statement, had not uttered a single word in that regard—Complainant/Investigating Officer had not mentioned the detail of the alphabet on the seal required to prepare the parcels—Report prepared by Chemical Examiner did not carry separate results of tests applied regarding each sample parcel—Accused could not be convicted unless it was established that the material allegedly recovered from his possession was narcotics—Appeal was allowed, in circumstances.

2020  PCrLJN  150   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD FAYYAZ VS State

5. 9(c)—Possession of narcotics—Appreciation of evidence—Safe custody—Contradictory statements of witnesses—Delay in depositing case property in malkhana—Effect—Accused was apprehended with 5.400 kilograms of opium—Witnesses of recovery had deposed that the contraband was contained “in many small polythene bags” but none of them could give their precise number—Complainant had deposed that he had handed over the sealed parcels to the Investigating Officer when he came on the spot but the latter did not confirm that he received the parcel from the former—Prosecution case was that the parcels were handed over to Moharrar the very day, they were recovered—Moharrar admitted that he received the case property after 9 days of the occurrence and stated that “we do not make any entry regarding the case property received by us”—No evidence was available to show as to where the sealed parcel remained till its receipt by the Moharrar—Chain of custody of the sample parcel was broken right in the beginning when complainant and Investigating Officer could not establish its immediate safe deposit in the Malkhana—Witnesses alleged that opium was recovered from the accused but the Chemical Analyst found the sample as of charas—Charas and opium were two different things having distinct appearance and it was hard to believe that the police officials could take charas for opium—Appeal against conviction was accepted, in circumstances.

2020  PCrLJN  150   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD FAYYAZ VS State

1. 9—Recovery of narcotics—Representative samples—Scope—Representative sample must be drawn from every packet/slab/piece of narcotic or psychotropic substance and be sent for chemical analysis.

2020  PCrLJN  137   LAHORE-HIGH-COURT-LAHORE

ASHRAF HUSSAIN VS State

Ss. 9(b), 9(a) & 25—Criminal Procedure Code (V of 1898), S.103—Possession of narcotics—Mode of arrest and recovery—Search to be made in presence of witnesses— Appreciation of evidence—Consolidated sample—Scope—Accused was alleged to have been found in possession of 1140 grams of charas—Complainant had deposed that, on secret information, he had nabbed the accused with five pieces of charas; had chipped corner from every piece of the recovered substance and prepared a consolidated sealed parcel of 57 grams for chemical analysis—Marginal witness had testified on the same lines and had fully corroborated the complainant on all material particulars—Analysis Report had confirmed that the recovered substance was charas—Prosecution case could not be disbelieved on the ground that the complainant had not associated any member from the general public with the recovery proceedings—Provisions of S. 103, Cr.P.C. were excluded by S. 25 of Control of Narcotic Substances Act, 1997—Police officials were as good witnesses as any other witness unless it was proved through cogent evidence that they had any malice against the accused—High Court observed that since only one consolidated sample from the recovered substance was drawn, therefore, the quantity of charas received at the Forensic Science Laboratory could only be considered against the accused—Conviction of the accused was converted from Ss.9(b) & 9(a) to Control of Narcotic Substance Act, 1997—Sentence of the accused was reduced and the appeal was dismissed.

2020  PCrLJN  133   LAHORE-HIGH-COURT-LAHORE

RIAZ AHMAD VS State

1. 9(c)— Possession of narcotics— Appreciation of evidence—Benefit of doubt— Safe custody— Contradictory statements—Withholding material witness—Effect—Accused, during interrogation of another case, was alleged to have disclosed about the charas concealed near his house which was recovered accordingly—Complainant had deposed that he had recovered the charas; prepared two sealed parcels and handed them over to the Investigating Officer, who had reached on the spot—Investigating Officer had confirmed receipt of case property from the complainant and its entrustment to the Moharrar for safe custody—Recovery witness had deposed that the complainant had handed over the sample to a constable for its transmission to the police station—Moharrar had deposed that the Investigating Officer had handed him over two sealed parcels of charas—Complainant had recovered the charas from the territorial jurisdiction of another police station but it was not understandable as to why the Moharrar had entrusted the sample to the complainant instead of an official of the police station wherein FIR was registered—Constable through whom complaint was sent to the police station for registration of FIR was not examined by the prosecution but he was a material witness—Prosecution had failed to establish safe custody of the case property and safe transmission of the sample to the Forensic Laboratory—Appeal against conviction was allowed, in circumstances.

2020  PCrLJN  47   LAHORE-HIGH-COURT-LAHORE

MANSABDAR VS State

17. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6— Possession of narcotics—Appreciation of evidence—Benefit of doubt—Safe custody—Contradictory evidence—Failure to mention test protocols—Effect—Accused was apprehended and during his personal search 1020 grams heroin was recovered from a shopper bag being held by him in his right hand—Categorical stance of Moharrar to the effect that the complainant handed him over two sealed parcels, said to contain heroin on 17.2.2015 though discrepant, created serious doubt about the safe custody of the case property till 17.2.2015, allegedly recovered from the possession of accused on 12.2.2015—Sample bearer deposed that he deposited the sample in the office of Forensic Science Agency on 18.2.2015 but the perusal of the report of the Agency disclosed that the parcel was submitted on 19.2.2015—Prosecution failed in proving safe custody of the sample parcel between the police station and office of Forensic Science Agency—Report prepared by the Forensic Science Agency though carried the names of the tests yet it did not provide results of the same except concluding result—Analyst had not even mentioned the test protocols applied in carrying out the required tests which was against the mandate of R. 6, Control of Narcotic Substances (Government Analysts) Rules, 2001—Accused could not be convicted and sentenced only on the basis of oral assertions of the police witnesses unless it was established with certitude that the material allegedly recovered at the instance of the appellant was narcotic—Appeal was allowed, conviction and sentence recorded by the Trial Court was set aside, in circumstances.

2020  PCrLJN  40   LAHORE-HIGH-COURT-LAHORE

NOMAN alias NOMA VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b) & 9(c)—Possession of narcotics—Bail, grant of—Borderline case—Non-availability of report of Government Analyst—Further inquiry—Completion of investigation—Scope—Accused, on the pointation of informer, was apprehended and on his personal search, charas weighing 1265 grams was recovered—Alleged recovery though fell under S. 9(c) of Control of Narcotic Substances Act, 1997 but slightly exceeded the maximum limit as prescribed under S. 9(b) of Control of Narcotic Substances Act, 1997—Recovered contraband was wrapped in a polythene shopper and it was not clear as to whether the weight of the recovered substance was conducted with or without the same—Report of Government Analyst was still awaited, without which, nature of the recovered substance could not be exactly determined—Said discrepancies were sufficient to bring the case of the accused within the ambit of further inquiry as per contemplation of S. 497(2), Cr.P.C.—Accused was the first offender having no criminal antecedents—Investigation of the case was complete and person of the petitioner was not required by the police for the purpose of further investigation—Petition for grant of bail was allowed, in circumstances.

2020  PCrLJN  30   LAHORE-HIGH-COURT-LAHORE

RASHID ALI VS State

1. 9(c)— Possession of narcotics— Appreciation of evidence—Benefit of doubt—Non-sealing of contraband on the spot and not mentioning the number of bags in which contraband was sealed—Contradiction regarding bearer of sample—Effect—Accused, during interrogation, was alleged to have disclosed about his business/possession of poast and opium, which was accordingly recovered from his house, on his pointation—Complainant and witness of recovery did not depose about the sealing of the case property at the spot—Complaint and recovery memo. were silent about the number of bags in which the recovered contraband was sealed, however witness of recovery disclosed in cross-examination that contraband was sealed in nine bags—Moharrir did not state about the numbers of bags in which contraband was sealed however, he disclosed the number of bags to be nine during cross-examination—Complainant stated that he did not collect the sample from each bag as he had separated sample from the bulk of the poast—Police constable stated that moharrir handed over to him one sealed parcel of poast as sample, which he deposited in the office of Chemical Examiner, whereas report of the Chemical Examiner recorded the name of the forwarding Officer of sample as Excise and Taxation Officer—Safe custody of the case property was not proved, in circumstances, from the material available on record—Prosecution had failed to discharge its onus for upholding the conviction—High Court allowed the appeal and set aside the impugned judgment, in circumstances.

2020  YLR  2643   KARACHI-HIGH-COURT-SINDH

NOOR HASSAN VS State

1. 9(c)—Possession of narcotic substance—Appreciation of evidence—Benefit of doubt—Safe custody—Delay in sending samples to the Forensic Laboratory—Non-production of sample-bearer—Effect—Accused was alleged to have been found in possession of 1050 grams of charas—No independent witness to the incident was produced—WHC (Writing Head Constable), who allegedly recorded FIR of the case, was not examined by the prosecution—Charas, on chemical examination, was found to be 1003 grams—Contraband was subjected to chemical examination with a delay of six days—Incharge of the malkhana and a constable, who took the charas to Chemical Examiner, was not examined by the prosecution to prove safe custody and transmission of charas—Case of prosecution was not free from doubt and the accused was entitled to its benefit—Appeal against conviction was allowed, in circumstances.

2020  YLR  2127   KARACHI-HIGH-COURT-SINDH

GHULAM NABI SHAH VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Safe custody—Non-association of private witnesses—Non-production of roznamcha entry of malkhana—Non-production of vehicle—Effect—Accused persons were alleged to have been transporting 90 kilograms of hashish in a car—Names of officials accompanying the complainant as mentioned in the FIR contradicted with the departure entry of daily diary as it indicated two additional names, thus a serious doubt arose in respect of the names of police party which conducted the raid—Raid was conducted on a tip off but no serious effort was made by the police party to associate any independent or private witness—One of the prosecution witnesses had deposed that sample, sent to the Chemical Examiner, had three seals on it but the report of Chemical Examiner indicated only two seals—Statement of complainant did not disclose anything about the safe custody of the recovered narcotic—Neither the roznamcha entry of malkhana was produced nor the Incharge of malkhana was examined before the Trial Court—Safe custody of case property, in the absence of such evidence, remained questionable—Vehicle in which the narcotic was being transported was neither seized as case property nor produced during the trial—Case against accused persons was engulfed under the thick clouds of doubts—Appeals were allowed, in circumstances.

2020  YLR  2053   KARACHI-HIGH-COURT-SINDH

State VS BABAR KHAN

Ss. 9 (c) & 48—Criminal Procedure Code (V of 1898), S. 417—Recovery of narcotics—Appreciation of evidence—Appeal against acquittal—Charas weighing 100 kilograms was allegedly recovered from a vehicle van which was being driven by one accused while the other was sitting on the sacks containing the narcotics—Appeal against acquittal had distinctive features and legal approach to deal with—Appeal against conviction was distinguishable from appeal against acquittal because presumption of double innocence was attached in the latter case—Judgment of acquittal could only be interfered with when it was found to be based on evidence as capricious, perverse, arbitrary or foolish in nature and the same was lacking against accused—High Court declined to interfere in the judgment of acquittal of accused persons as the same did not suffer from any illegality—Trial Court had advanced valid and cogent reasons for passing a finding of acquittal in favour of accused persons and there was no legal justification to disturb the same—Appeal against acquittal was dismissed in circumstances.

2020  YLR  1861   KARACHI-HIGH-COURT-SINDH

The STATE/ANTI-NARCOTICS FORCE  VS SHAH MUHAMMAD alias SHAHAN

Ss. 6, 9(c), 8(b), 12, 13, 19 & 37—Possession of narcotics, trafficking or financing the trafficking of narcotic drugs, acquisition and possession of assets derived from narcotic offences, forfeiture of assets of an offender, freezing of assets—Appreciation of evidence—Appeal against acquittal—Benefit of doubt—Accused persons were seen by raiding party in possession of narcotics when two of them escaped from the spot and one was arrested—Prosecution case was doubtful for the reason that two persons had escaped from the spot in the presence of trained officials of Anti-Narcotics Force, which was not understandable—Prosecution had failed to prove safe custody of the narcotic substance and its safe transmission to the Chemical Examiner—Trial Court had rightly pointed out infirmities in the case of prosecution—Judgment passed by trial court was neither arbitrary nor capricious—Scope of appeal against acquittal was considerably narrow and presumption of innocence was attached to the order of acquittal—Appeal against acquittal was dismissed, in circumstances.

2020  YLR  1453   KARACHI-HIGH-COURT-SINDH

ANTI-NARCOTICS FORCE REGIONAL DIRECTORATE SINDH  VS FARHAD KHAN

Ss. 9(c) & 6—Criminal Procedure Code (V of 1898), S. 417—Appreciation of evidence— Possession of narcotics—Appeal against acquittal—Non-association of private witnesses—Safe custody—Delay in sending case property to Forensic Laboratory—Scope—Accused was alleged to have been found in possession of 11 kilograms of charas—Roznamcha entry depicting departure of police party for patrolling showed over-writing—No person from the bus stand (place of recovery) was made to act as mashir—Driver or the bus conductor was not approached and/or examined—Prosecution witnesses had contradicted each other about the departure of bus—Registration number of the bus from which the accused dropped was not mentioned in the FIR or in mashirnama—Case property was received in the Forensic Laboratory after 10 days of its recovery without any explanation with regard to its safe custody—Trial Court had rightly disbelieved the prosecution evidence—Scope of appeal against acquittal was considerably narrow and presumption of double innocence was attached to the order of acquittal—Appeal against acquittal, being without merit, was dismissed, in circumstances.

2020  YLR  1338   KARACHI-HIGH-COURT-SINDH

Mir SHAHABUDDIN SHAH alias MRI SHAH VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Safe custody—Non-association of private witnesses—Non-production of sample-bearer— Effect— Accused as alleged to be in possession of 2600 grams of charas—Police had recovered the charas at a busy road but had not tried to associate a private person to witness the arrest and recovery—Propriety demanded that arrangements should have been made to associate private witnesses for arrest and recovery—Date of sending the case property was not mentioned in the report of Chemical Examiner while the letter through which the case property was sent to the Chemical Examiner was not produced during trial—High Court observed that sender of the case property should have been examined by the prosecution to clarify whether the property was in safe custody during the said transitory period—Judgment of Trial Court was set aside and the accused was acquitted of the charge, in circumstances.

2020  YLR  1225   KARACHI-HIGH-COURT-SINDH

TALAT PARVAIZ VS State

Ss. 9(c), 25 & 29—Criminal Procedure Code (V of 1898), S. 103—Recovery of narcotics—Appreciation of evidence—“Possession”—Proof—Charas weighing 100 kilograms was recovered from toolbox of the troller driven by accused persons—Trial Court convicted both the accused persons and sentenced them to imprison for life—Validity—Accused persons were drivers of troller who were found responsible for transporting huge quantity of narcotic substance and had prior knowledge and awareness of narcotics in their vehicle—Such huge quantity of narcotics was not kept in toolbox of vehicle without prior knowledge of drivers which remained in possession and control of accused persons from their village to place of recovery—Accused persons being drivers were fully responsible for transporting such huge narcotics in troller—High Court declined to interfere in conviction and sentence awarded by Trial Court to accused persons as prosecution had succeeded to bring guilt of accused persons home and proved its case beyond any shadow of doubt—Accused persons failed to point out any material illegality or serious infirmity committed by Trial Court while passing judgment which was based on proper appreciation of evidence—Appeal was dismissed in circumstances.

2020  YLR  503   KARACHI-HIGH-COURT-SINDH

ALI AKBER VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Possession of narcotics—Report of Chemical Examiner—Appreciation of evidence—Benefit of doubt—Contradictory evidence—Delay in sending samples to Chemical Examiner—Non-production of sample-bearer—No independent witnesses were associated— Effect— Accused person was alleged to have been in possession of 8 kilograms of charas when he was arrested—Alleged contraband was sent for chemical examination with a delay of one day—Sample bearer was not examined nor was there any entry with regard to keeping and sending the contraband item for examination in a safe manner—Report of Chemical Examiner, though positive, but was without required certification—Complainant admitted that while going towards the place of incident, which was 250 kilometers away, complainant party had stopped and got fueled their vehicles from a petrol pump but the mashir police official stated that they did not make any stop—Complainant stated that he tried to pick up the private persons as mashirs of arrest and recovery, however, they apologized on the ground that they were passengers—Complainant stated that he completed the entire proceedings at the place of incident within an hour, whereas mashir stated that they had completed the proceedings within 30 minutes—Registration number of the vehicles, on which the complainant party had boarded at the time of incident, was not mentioned in the FIR nor in the mashirnama or in evidence of the prosecution witnesses—Mashir was a subordinate of the complainant, no independent person from or while going to the place of incident was picked up to act as mashir of arrest and recovery; therefore, it was a case of insufficient evidence—Prosecution had failed to prove its case against the accused, therefore, while extending benefit of doubt in favour of the accused his appeal was allowed.

2020  PCrLJ  1035   KARACHI-HIGH-COURT-SINDH

State VS HAZAR KHAN

1. 9(c)—Criminal Procedure Code (V of 1898), S. 265-E—Constitution of Pakistan, Art. 10-A—Possession of narcotics—Plea of guilty—Fair trial—Scope—No one could be condemned unheard—Applicant assailed order of Trial Court whereby Trial Court, on the application of accused persons, convicted him (applicant) to the sentence already undergone by him—Accused persons had not pleaded guilty to the charge in first instance but had at subsequent stage pleaded guilty to the charge before Additional Sessions Judge—Additional Sessions Judge, without loss of time, convicted and sentenced the accused persons without providing chance of hearing to the prosecution—Impugned order was against the spirit of natural justice and mandate contained in Art. 10-A of the Constitution which prescribed that every person was entitled to fair trial and due process of law for determination of his rights and obligations in civil or criminal charges against him—Accused persons had undergone over 5 years and few months of imprisonment which was too short to meet with the requirements of law in a case where 340 kilograms of charas was recovered— Impugned order having been passed in improper exercise of jurisdiction which was not sustainable—Trial Court was directed by the High Court to proceed with the case afresh in accordance with law—Revision application was disposed of accordingly.

2020  PCrLJ  737   KARACHI-HIGH-COURT-SINDH

AYAZ HUSSAIN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S. 9(b)—Possession and trafficking of narcotics—Bail, grant of—Further inquiry—Recovery of 325 grams of heroin—Area from where the accused was apprehended stated to be thickly populated area but police officials did not call for any independent and respected person of the locality to witness the recovery proceedings—Prior to the lodging of FIR, father of the accused had filed a direct complaint against the police officials as well for protection against the highhandedness of the police, therefore, false implication of the accused could not be ruled out—Every accused would be presumed to be blue-eyed boy of law until and unless he was found guilty of the charge—Meagre quantity of heroin had been shown to have been recovered from the possession of the accused which did not fall within the prohibitory clause of S. 497, Cr.P.C.—Accused was admitted to bail, in circumstances.

2020  PCrLJ  184   KARACHI-HIGH-COURT-SINDH

LUTUF ULLAH VS State

1. 497, third proviso—Control of Narcotic Substances Act (XXV of 1997), S. 9—Possession of three kilograms of Charas—Bail, refusal of—Fresh ground for bail application—Scope—Petitioner moved (third) bail application on the ground that Trial Court had not complied with the directions of the High Court to record evidence of the material witnesses within a period of three months—Validity—Once bail application of the petitioner was dismissed on merits, he could move post-arrest bail before High Court on fresh ground, if any, available to him under the law—Present bail application had been filed by the petitioner on the strength of third proviso to S. 497, Cr.P.C. alone without any fresh ground—Prima facie it was not a case of statutory delay as offence under S. 9(c), Control of Narcotic Substances, 1997 was punishable with life imprisonment or death—Third proviso of S. 497(1), Cr.P.C. provided statutory period of two years, whereas the petitioner had not crossed the period prescribed in the said proviso, therefore, petitioner’s assertion was misconceived—Bail was refused to the petitioner, however, High Court directed the Trial Court to record evidence of the remaining witnesses within a periods of two months, whereafter the petitioner would be at liberty to move fresh bail application before the Trial Court on fresh ground, if any, and the Trial Court would decide the same on merit—Bail was refused to the petitioner, in circumstances

2020  PCrLJ  184   KARACHI-HIGH-COURT-SINDH

LUTUF ULLAH VS State

1. 497, third proviso—Control of Narcotic Substances Act (XXV of 1997), S. 9—Possession of three kilograms of Charas—Bail, refusal of—Fresh ground for bail application—Scope—Petitioner moved (third) bail application on the ground that Trial Court had not complied with the directions of the High Court to record evidence of the material witnesses within a period of three months—Validity—Once bail application of the petitioner was dismissed on merits, he could move post-arrest bail before High Court on fresh ground, if any, available to him under the law—Present bail application had been filed by the petitioner on the strength of third proviso to S. 497, Cr.P.C. alone without any fresh ground—Prima facie it was not a case of statutory delay as offence under S. 9(c), Control of Narcotic Substances, 1997 was punishable with life imprisonment or death—Third proviso of S. 497(1), Cr.P.C. provided statutory period of two years, whereas the petitioner had not crossed the period prescribed in the said proviso, therefore, petitioner’s assertion was misconceived—Bail was refused to the petitioner, however, High Court directed the Trial Court to record evidence of the remaining witnesses within a periods of two months, whereafter the petitioner would be at liberty to move fresh bail application before the Trial Court on fresh ground, if any, and the Trial Court would decide the same on merit—Bail was refused to the petitioner, in circumstances.

2020  MLD  1883   KARACHI-HIGH-COURT-SINDH

TARIQUE alias Kaloo VS State

1. 9(c)—Recovery of narcotics—Delay in sending sample to Laboratory—Effect—Sample parcel of the case property was received by the Chemical Examiner through Head Constable after two days of the incident without any explanation for delay—Admittedly, Head Constable had not been examined to corroborate the version of the prosecution—Record failed to show as to where the case property was lying for intervening period—No entry of Malkhana had been produced to prove the safe custody of the property—Incharge of Malkhana had also not been examined—Question of tampering in the case property in the present case could not be ruled out, in circumstances.

2020  MLD  1883   KARACHI-HIGH-COURT-SINDH

TARIQUE alias Kaloo VS State

1. 9(c)—Recovery of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that on receiving spy information of selling narcotics, police party reached at pointed place and apprehended the one accused and secured seven Kgs. of charas, which was lying on the ground over plastic “KATTA”, remaining accused escaped—Admittedly complainant received spy information that accused were selling narcotics at bye-pass chowk, which was busy place but despite that complainant did not associate any independent person either from the place of receiving information or from the place of incident—Allegedly, accused along with co-accused was selling charas at the pointed place and when the police party reached there, they only arrested the present accused and remaining three accused escaped on seeing the police party—Police party armed with sophisticated weapons did not make efforts to follow those accused for their arrest—Nothing was on record as to whether complainant party made any positive efforts during the event for the arrest of absconding accused—Said aspect of the case created doubt about the prosecution case—Present accused had not been convicted in any criminal case—Record showed that the alleged charas was not recovered from the exclusive possession of accused—On the contrary, record showed that it was lying on the ground over “KATTA” and said fact did not appeal to prudent mind that charas was exclusively owned by the accused-appellant—Prosecution had failed to prove its case against the accused, in circumstances—Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the trial court.

2020  MLD  1883   KARACHI-HIGH-COURT-SINDH

TARIQUE alias Kaloo VS State

15. 9(c)—Recovery of narcotics—Contradictions in statements of witnesses—Scope—Record showed that evidence of the prosecution witnesses was contradictory to each other on material particulars of the case—Complainant stated in his examination-in-chief that the incident took place on 15.01.2017, whereas, the incident had taken place on 25.01.2017—Complainant had stated that the place of occurrence was a common street—Complainant further stated that mashirnama was reduced to writing by WHC of ADRC, whereas witness had stated in his evidence that mashirnama was reduced to writing by him on the dictation of complainant—Complainant further stated in his evidence that he handed over the custody of accused person, case property and police papers to SHO for further investigation—Station House Officer had stated in his cross examination that neither he visited the place of occurrence nor prepared such mashirnama and that the case property was not sent by him to the Chemical Examiner for its verification, whereas, chemical report showed that the property was sent by SHO—Such contradictions were fatal to the presecution—Appeal was allowed.

2020  MLD  1255   KARACHI-HIGH-COURT-SINDH

MUHAMMAD SHAKEEL VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9, 14, 15, 25 & 51—Possession of three and half kilograms of Charas—Bail, refusal of—“Huge quantity”—Scope—Petitioner, possessing narcotic substance, was arrested—Petitioner contended that charas belonged to some one else and there was no material to connect him with the alleged offence—Petitioner was caught red-handed with a huge quantity of Charas unlikely to have been foisted on him especially as there was no allegation of any enmity between him and Anti Narcotic Force officials who arrested him—Chemical Report was positive—Quantity of narcotic had brought the offence within the prohibitory clause of S.497, Cr.P.C—Non-presence of independent mashirs was of no significance at bail stage—Sufficient material was on record to connect the petitioner with the offence—Bail was refused, in circumstance.

2020  MLD  977   KARACHI-HIGH-COURT-SINDH

ABDUL GHAFFAR alias IQBAL VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss. 6/9(c)—Possession and trafficking of narcotics—Bail, grant of—Further inquiry—Recovery of 1010 grams of “Charas”—Record showed that alleged incident took place in a populated area but prosecution had not bothered to cite any independent person from the locality to witness the event—Chemical report was not available in the file to ascertain whether the material allegedly recovered from the accused was in fact “Charas” or otherwise—All prosecution witnesses were police officials, therefore, there was no possibility of tampering the evidence at the hands of accused—Accused was behind the bars since his arrest; trial had not commenced—Accused had made out a case for grant of bail—Bail was allowed, in circumstance.

2020  MLD  945   KARACHI-HIGH-COURT-SINDH

BASHIR AHMED alias NAZEER ALI VS State

Ss. 6 & 9(c)—Criminal Procedure Code (V of 1898), S. 103(5)—Possession of narcotic drugs—Appreciation of evidence—Non-association of private witnesses—Effect—Failure to take action against the person who refused to witness the search—Effect—Accused was charged for possession of 2500 grams of hashish—Raiding party, according to first information report (FIR), had prior spy information about the accused having hashish but no private person was associated to witness the recovery proceedings—When recovery was stated to have taken place near a petrol station, then failure to secure independent witnesses could not be brushed aside—Prosecution witnesses had statedly tried to associate private persons at the place of recovery but private persons excused, however, admittedly no action was taken against those private persons, hence, such assertion did not carry weight—No fake customer was sent for purchase of hashish from the accused before the raid—Complainant was also the Investigating Officer of the case—Complainant could not have investigated the same case, which must have been investigated by an independent officer—Constable who carried the case property to the Chemical Examiner was not examined by the prosecution in order to show safe transmission—Case against accused stood established in spite of discrepancies—Appeal was dismissed and sentence of accused was reduced to the one already undergone.

2020  MLD  723   KARACHI-HIGH-COURT-SINDH

MUHAMMAD SHARIF VS State

1. 497—Control of Narcotic Substances Act ( XXV of 1997), Ss. 6/9(c)—Possession and trafficking narcotics —Bail, grant of—Joint memo of recovery and arrest—Recovery of 2100 grams of charas along with a loaded firearm from the possession of accused—No private witnesses had been associated to witness the event by the prosecution and no explanation had been furnished in that regard—Accused had been granted bail in case registered under Sindh Arms Act, 2013 on the basis of same set of evidence—Prosecution witnesses, if disbelieved , in one criminal case on the basis of joint memo, could not be relied upon with regard to accused in other case, unless they were corroborated by evidence, which came from unimpeachable independent source, which was apparently lacking in the present case—Mere pendency of the criminal case/cases against accused did not ipso facto disentitle him for grant of bail, unless it had been ended into conviction by the Superior Courts—Accused was behind the bar since his arrest and no substantial progress had been made in the trial by the Trial Court—Speedy trial was the right of every person, therefore, even if the provision of S.497, Cr.P.C., in ordinary course was not applicable to an accused person facing charges, broader principle of the same could  be  pressed  into  service  in  hardship  cases  to  provide  relief  to  a  deserving  accused  incarcerated  in  jail  for  a  shocking long period—Further detention of accused for indefinite period in the present case would not advance the prosecution case—Accused having made out a case for grant of bail, bail was granted.

2020  MLD  682   KARACHI-HIGH-COURT-SINDH

SULTAN AHMED VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Contradictory evidence—Failure to disclose the manner of sampling—Non-association of private witnesses—Effect—Accused was alleged to have been in possession of 1500 grams of charas which was recovered in the shape of patties—Mode and manner of sampling was not described by complainant either in the memo of arrest and recovery or during deposition—Prosecution case was that there were more than one patty of charas and in such a situation, sampling was required to be made separately from each patty—Non-following of mandatory procedure meant that at the most only 10 grams charas was said to be established as recovered quantity—Complainant and witnesses were not in agreement about the number of seals put on the sealed parcel—Admittedly, complainant and witnesses had beforehand information but they did not try to associate private witnesses for the purpose of arrest and recovery—Case of prosecution was not free from doubts—Appeal was allowed, in circumstances.

2020  MLD  675   KARACHI-HIGH-COURT-SINDH

KASHIFULLAH VS State

497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)—Recovery of 2 kilograms Charas—Bail, grant of—Further inquiry—Personal possession—Complainant recovered one bag from the side box of a passenger coach—Bag contained two packets of Charas, each packet weighing one kilogram— Accused was arrested being owner of the said bag— Accused contended that the narcotic had been recovered from the side box of the bus; driver of the bus had not been cited as Musheer of recovery and arrest and that a number of passengers were travelling in the bus but the investigating officer did not cite any independent person to witness the recovery—Delay of three and half hours in lodging of FIR and alleged charas had also been sent to Chemical Laboratory with delay which was not plausibly explained—Admittedly, complainant did not cite the Driver and Conductor of the bus to act as witnesses of the recovery, especially when the accused  was pointed out by the driver to be the owner of the contraband—Bus from which the alleged contraband was recovered was not taken into custody—Ticket for travelling the bus was not recovered from physical possession of accused—-Recovery was effected from side box of the bus i.e. outer side and not from the physical possession of the accused—-Case of the accused fell within the domain of further inquiry—Accused was allowed bail, in circumstances.

2020  MLD  486   KARACHI-HIGH-COURT-SINDH

SAMANO KANRANI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Charas weighing 1200 grams was recovered from accused—-Sample was sent for chemical examination after delay of 05 days—Prosecution stated that the recovered charas was kept in Malkhana by a Police Official—Neither the Incharge of Malkhana was examined at trial nor the entry of keeping the property in Malkhana was placed on record—Recovery, in circumstances, was made highly doubtful—-Witnesses contradicted each other on material aspects of the case—No implicit reliance could be placed on the evidence of prosecution witnesses in view of contradictions—Prosecution had failed to prove its case beyond reasonable doubt—Accused was acquitted by giving him benefit of doubt.

2020  MLD  282   KARACHI-HIGH-COURT-SINDH

NASEER AHMED VS State

Rr. 25.1 & 25.8—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Question was as to whether it was proper for a raiding officer/complainant to investigate the case, who did not belong to concerned police station—Central Investigating Agency staff during routine patrolling, on a tip-off, arrested petitioners from abandoned quarters while they were allegedly sitting holding shoppers containing narcotic substances—First Information Report, however, was lodged at Police Station of jurisdiction of place of occurrence—Complainant/ Investigating Officer (head of Central Investigating Agency staff) had admitted in the Court that CIA Centre was not a police station and investigation was not assigned to him by the Senior Superintendent of Police or Deputy Inspector General—Complainant being not the officer in-charge of Police station nor belonged to the concerned police station where F.I.R was lodged; therefore, the investigation could not be assigned to him, as per R. 25.1 of Police Rules, 1934—For assigning investigation to the said investigation officer, it was necessary that the same should be done by the order of Senior Superintendent of Police, as per R. 25.8 on a reference of the officer in-charge of Police station.

2020  MLD  282   KARACHI-HIGH-COURT-SINDH

NASEER AHMED VS State

25. 497—Police Rules 1934, Rr. 25.1 & 25.8 —Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Recovery of Charas weighing 600 grams from each of three accused—Bail, grant of—Non-association of private witness despite raiding party had beforehand information—Effect—False involvement—Scope—Assigning of investigation—Scope—Question as to whether it was proper for a raiding officer/complainant to investigate the case, who even did not belong to the concerned police station—Central Investigating Agency staff during routine patrolling, on a tip-off, arrested petitioners from abandoned houses while they were allegedly sitting holding shoppers containing narcotic substances—First Information Report, however, was lodged at Police Station of jurisdiction of place of occurrence—Petitioners contended that they were involved due to political animosity, as they belonged to rival political parties—Occurrence was mentioned in the FIR in an unbelievable style that raiding party found the petitioners sitting in the said abandoned houses and all of them were holding black shoppers wherein hashish (charas) was available—Raiding party did not try to associate at least one private witness from the locality to become marginal witness of the memo of arrest and recovery—No purchaser of the Hashish (Charas) was , admittedly, found at the place of recovery and no evidence in that respect was collected by the raiding party—High Court observed that considering the mode of arrest and recovery, false involvement, due to political animosity, could not be ruled out—Police officials were as good witnesses as private witnesses for such criminal case, but when the raid was conducted on a tip-off, non-association of private witness in the backdrop of animosity with police, created a ground for further inquiry—Complainant being not the officer in-charge of police station nor he belonged to the concerned police station where FIR was lodged; therefore, the investigation could not be assigned to him, as per R. 25.1 of Police Rules, 1934—For assigning investigation to the present investigation officer, it was necessary that the same should be done by the order of Senior Superintendent of Police, as per provision of R. 25.8 on a reference of the officer in-charge of police station—Petitioners had made out a case for grant of bail—Petitioners were admitted to bail, in circumstances.

2020  MLD  70   KARACHI-HIGH-COURT-SINDH

HUSSAIN ALI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Non-association of natural witnesses—Delay in sending recovered narcotic—Safe custody—Non-production of diary of property room (malkhana)—Effect—Accused was allegedly found to be in the exclusive possession of narcotic, which was recovered from the boot of his car—Narcotic was recovered at police post, where at that time two policemen were posted—Said policemen were the natural witnesses of the incident as compared to patrolling police party, but they were not made witnesses of alleged arrest and recovery—Non-association of the policemen posted at police post as witnesses created doubt in the prosecution in respect of happening of the incident as claimed by the complainant and witness in their depositions—Narcotic was sent to chemical examiner with an unexplained delay of 14 days—Said exercise was required to be completed within seventy-two hours of the recovery—Safe custody of the recovered narcotic was a serious issue and the prosecution was duty bound to establish that the recovered narcotic remained in safe custody during the intervening period—Prosecution had neither produced the diary of property room (malkhana) nor in-charge of the property room was examined before the Trial Court—Prosecution had not examined the constable who had transmitted the recovered property from police station to the chemical examiner—Prosecution could not prove its case against the accused, in circumstances—Appeal was allowed.

2020  YLRN  160   KARACHI-HIGH-COURT-SINDH

Syed MUHAMMAD AYAZ VS State

3. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotics—Bail, refusal of—Prompt FIR—Scope—Accused was alleged to have been found in possession of 3.5 kilograms of Ice Crystal—Such a huge quantity of Ice Crystal could not be easily foisted upon the accused especially when there was no delay in lodging the FIR—Recovery of Ice Crystal from the possession of accused had brought his case within the meaning of subsection (1) of S.497, Cr.P.C.—Petition for grant of bail was dismissed, in circumstances.

2020  YLRN  155   KARACHI-HIGH-COURT-SINDH

AMIL KHAN VS State

1. 9(c)— Possession of narcotics—Appreciation of evidence—Prosecution case was that ten kilograms charas was recovered from the vehicle of the accused—Record showed that the FIR was registered with promptitude giving no time for concoction and S. 161 statements were recorded promptly which were not significantly improved upon by any witness at the time of giving evidence—Arrest and recovery was made on the spot and the accused was caught red handed with the narcotics by the police whose evidence fully corroborated each other in all material respects as well as the prosecution case—No enmity had been suggested against any of the police witnesses, as such the police had no reason to falsely implicate the accused in the case—Police evidence which was corroborative in all material respects was believable—Spy information about the vehicle in question, its driver and its likely route as pointed out by the spy informer fully corroborated the prosecution case—No major contradictions in the evidence of the witnesses was found—Significantly, the narcotics were recovered from the vehicle which was being driven by the accused and he handed over the narcotics to the police when he was stopped and thus, there was no doubt that the accused had actual knowledge of the narcotics which were being transported—Vehicle was recovered along with the narcotics—Under S.29 of the Act, once the recovery had been proved as in the present case, the onus shifted to the accused to show his innocence in that at least he had no knowledge of the narcotics—Accused had not been able to do so in the present case—Facts suggested that it would be extremely difficult to foist such a large amount of charas being in total ten kilograms—No delay in sending the chemical report for analysis, which turned out to be positive—Recovered narcotics were kept in safe custody from the time of their recovery to the time when they were taken for chemical analysis and no suggestion of tampering with the same had even been made—Narcotics were sealed on the spot, remained sealed in the Malkhana before being transported to the Chemical Examiner in a sealed condition as per the chemical report—All relevant police entries were duly exhibited—Defence objected that complainant acted as Investigating Officer, but there was no absolute legal bar on the complainant also being the Investigating Officer—Circumstances established that the prosecution had proved its case beyond a reasonable doubt—Appeal against conviction was dismissed accordingly.

2020  YLRN  155   KARACHI-HIGH-COURT-SINDH

AMIL KHAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence— Police witnesses—Scope—Evidence of a police witness was as reliable as any other witness provided that no enmity existed between them and the accused.

2020  YLRN  155   KARACHI-HIGH-COURT-SINDH

AMIL KHAN VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotics—Appreciation of evidence—Non-association of private witnesses—Effect—Prosecution case was that ten kilograms charas was recovered from the vehicle of the accused—Although no independent mashir was associated with the arrest and recovery of the accused, but it had come in evidence that no private person was willing to become an independent mashir at the time of arrest and recovery—Even otherwise S.103, Cr.P.C had been excluded for offenses falling under the Control of Narcotic Substances Act, 1997 by virtue of S.25 of the Act—Appeal against conviction was dismissed accordingly.

2020  YLRN  126   KARACHI-HIGH-COURT-SINDH

NAWAB KHAN VS State

1. 9(b)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Non-association of independent witnesses—Non-mentioning of number of pieces of contraband—Effect—Accused was alleged to have been found in possession of 1 kilogram of charas—Complainant party had proceeded towards the place of incident on advance information but had not associated any private person in recovery proceedings, although the place of arrest and recovery was a rickshaw stand—Charas was recovered in the shape of small and big pieces but number of those pieces was not disclosed in the recovery memo. and the entire case property was sent to Chemical Examiner—Report of Chemical Examiner revealed that out of total charas 100 grams was consumed in analysis but report was silent as to whether the 100 grams was separated from single piece or from more than one piece for the purpose of test, hence, it could not be said with certainty that the entire case property was charas—Prosecution had failed to prove its case against the accused beyond shadow of doubt—Appeal against conviction was allowed, in circumstances.

2020  YLRN  43   KARACHI-HIGH-COURT-SINDH

MUHAMMAD YOUNUS VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)—Possession and trafficking of narcotics—Bail, grant of—Two kilograms from accused and one kilogram from co-accused of charas was recovered—Accused sought bail on the ground of delay in conclusion of trial despite High Court’s direction to conclude the matter within two months—No private witness had been associated despite the place of incident being a busy place which made the case of accused that of further inquiry—Accused was in custody for the last one year but as per progress report submitted by the Trial Court only charge had been framed against him—Co-accused had been granted bail by the Trial Court—Accused was admitted to bail, in circumstances.

2020  YLRN  27   KARACHI-HIGH-COURT-SINDH

JALAL FAZAL VS State

S.497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7(1), 8(A) & 9— Recovery of 480 grams Amphetamine (Crystal) from accused—Bail, grant of—Further inquiry—Personal possession—Delay in FIR and sending sample—During checking of a bus, a shopping bag kept in the pocket fixed behind the driver seat was recovered—Accused was arrested on the pointation of the driver of the bus for allegedly keeping the bag in the said pocket—Accused, in first instance, denied the ownership of the suspected shopping bag but after sometime he accepted its ownership—Bag was found containing two lumps wrapped with yellow adhesive, which contained Amphetamine (Crystal) weighing 240 grams each—Accused contended that the narcotic had not been recovered on his pointation and that the driver of the bus had not been cited as mushir of recovery and arrest and that a number of passengers were travelling in the bus but the investigating officer did not cite any independent person to witness the recovery—First Information Report was lodged with eighteen hours delay and three days delay in sending the contraband to the chemical examiner which was not plausibly explained—Such delay had made the safe custody and transmission of contraband to the chemical examiner doubtful—Complainant did not cite the Driver and Conductor of the bus to act as witnesses of the recovery, especially when the accused was pointed out by the driver to be the owner of crystalline amphetamine—Bus from which the alleged contraband was recovered was not taken into custody—Case of the accused fell within the domain of further inquiry—Bail was allowed, in circumstances.

2020  YLRN  25   KARACHI-HIGH-COURT-SINDH

ASIF ISLAM VS The STATE through POLICE STATION ANF CLIFTON

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)—Possession of narcotic—Bail, grant of—Prohibition of possession of narcotic drugs—Recovery of 59 KG heroine—Name of the accused did not appear in the FIR nor was he associated as one of the culprits—Accused’s name was shown in the second interim challan after lapse of one year—Accused was involved through some information conveyed by the owner of godown and some other person—No identification parade was held—Accused was identified by his photograph—No other evidence was available for identification—Accused, after arrest was not produced before the Trial Court, even not shown as arrested person—Case of accused was that of further enquiry—Bail was granted, in circumstances.

2020  PCrLJN  172   KARACHI-HIGH-COURT-SINDH

HAROON RASHEED VS State

4. 9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotics— Appreciation of evidence—Benefit of doubt—Search and arrest—Scope—Prosecution case was that on spy information, police stopped the car of accused and found there five kilograms opium—Prosecution case was that the complainant party proceeded towards the place of incident on advance information but no private person had been joined in recovery proceedings, which was a clear violation of S. 103, Cr.P.C.—High Court observed that no doubt application of S. 103, Cr.P.C. had been excluded under S. 25 of the Control of Narcotic Substances Act, 1997, yet necessity of employing private person as mashir could not be overlooked for the reason that the place of incident was a busy place and people were present and it was a day time—Prosecution examined complainant and recovery witness but did not produce the official, who delivered the opium to the Office of Chemical Examiner to prove safe transmission of the case property—Evidence of complainant was not corroborated by recovery witness as he had been declared hostile with regard to seal of case property, his signature on mashirnama and recovery of mobile phone and co-mashir had not been examined before Trial Court—Record showed that the opium was weighed at the spot in electronic scale, it became five Kilograms, it was sealed and sent to laboratory—Chemical report revealed the net weight of opium as 04.920 kilograms—Said fact was a question mark upon safe transmission of opium to the laboratory—Neither the appellant-accused was previous convict nor he was involved in any case of similar nature—Evidence of prosecution witnesses had material contradictions, which could not be ignored while deciding appeal—Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt, benefit of which would resolve in favour of accused—Appeal against conviction was allowed, in circumstances.

2020  PCrLJN  144   KARACHI-HIGH-COURT-SINDH

FAZAL-UR-REHMAN VS State

44. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 51, 6, 9(c) & 25—Possession of narcotics—Bail, refusal of—Mode of arrest and recovery—Search to be made in presence of witnesses—Rule of consistency—Scope—Prosecution case was that the complainant recovered 44.4 kilograms of charas from a compound and arrested the accused being its watchman—Held; no previous acquaintance, ill will or grudge was alleged by the accused against the police for involving him in the case—Recovery was effected from the possession of accused and his name was also mentioned in the FIR with his specific role—Case of the owner of compound was on different footing, therefore, rule of consistency did not apply—Section 25 of the Control of Narcotic Substances Act, 1997 excluded the applicability of S. 103, Cr.P.C. in narcotics cases—Petition for grant of bail was dismissed, in circumstances.

2020  PCrLJN  122   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ALI VS State

1. 9(c)— Recovery of narcotics—Appreciation of evidence—Conscious possession of narcotics—Proof—Presence at spot—Chars weighing 49 kilograms was recovered from the house from where accused was arrested—Venue of occurrence was a dwelling house of brother of accused but no search warrant was obtained from the concerned Magistrate for conducting raid at the house—Role of accused with regard to conscious possession of narcotics was not trustworthy as prosecution failed to bring any evidence to prove his connection with narcotics recovered from the spot—Only evidence against accused was that when raiding party proceeded towards house of his brother and knocked the door of the house, accused in response opened the door of that house—Except that no evidence establishing nexus of accused with narcotics was brought on record—Mere presence of accused on the spot was not sufficient to connect him with alleged narcotic substance—High Court extended benefit of doubt and acquitted the accused of the charge as Trial Court was unjustified in convicting and sentencing the accused for alleged offence—Appeal was allowed in circumstances.

2020  PCrLJN  64   KARACHI-HIGH-COURT-SINDH

MIR JAVED IQBAL KHAN JAMALI VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Import of narcotics drug—Bail, grant of—Ambiguity as to identity of accused—Effect—Accused was alleged to have imported a consignment of Acetic Anhydride in the garb of Acetic Acid Glacial—Contention of accused was that he was not the real culprit and the real culprit who imported the consignment having same name belonged to another Province—Held; Trial Court had yet to scrutinize the documents produced by the accused and determine whether the claim of prosecution was genuine or otherwise—Investigating Officer had created ambiguity which required appreciation of evidence—Only tentative assessment was required to be made at bail stage and deeper appreciation was not permissible—Accused had successfully made out prima facie case for his release on bail—Petition for grant of bail was allowed, in circumstances.

2020  PCrLJN  46   KARACHI-HIGH-COURT-SINDH

ASMAT ALI SHAH VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, refusal of—No allegation of enmity against police—Positive report of Chemical Examiner—Admission of presence of narcotic in the vehicle—Conscious knowledge of accused—Scope—Accused was passenger of the car from the secret cavities of which 45 kgs charas was recovered—Punishment of offence with which the accused was charged carried sentence of death or imprisonment for life—Samples of charas were sent to the Chemical Examiner on the 4th day of alleged recovery for chemical analysis, whose report was positive—No enmity was alleged against the police officials—Accused had not denied his presence in the car, however, he pleaded that he did not have conscious knowledge of the charas, which was not conceivable—Prima facie, sufficient material was available on record to connect the accused with the commission of the alleged offence and no case for grant of bail was made out—Petition for grant of bail was dismissed.

2020  PCrLJN  39   KARACHI-HIGH-COURT-SINDH

BASHARAT HUSSAIN SHAH VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Delay in dispatch of sample—Non-association of private witness—Effect—Police apprehended the accused on tip-off that one person was trying to committing offence under S. 9(c) of Control of Narcotics Substances Act, 1997 by carrying narcotic at taxi stand—Excise Police party proceeded towards the reported place and found the appellant with a cloth bag—Due to non-availability of private witnesses, police officials were appointed as the marginal witnesses of the memo of arrest and recovery—Case of prosecution was that 3,000 grams of hashish (charas) was recovered from the possession of accused in the shape of slabs and according to prosecution case he was selling the narcotic—Excise Police had beforehand spy information at police station but they did not try to associate some private persons to witness the arrest and recovery from the accused—Sufficient time was available with the Excise Police to arrange at least a private witness and by not doing so Excise Police made their case of arrest and recovery doubtful—Alleged recovery had taken place at a taxi stand which was a busy place from where a private and independent witness could be arranged—Report of chemical analyser revealed that the property was received in the office by the hand of ‘N’ with a delay of one day but ‘N’ was not produced to clarify that the case property remained in safe custody during this period of delay—Appeal was allowed, judgment of Trial Court was set aside and the appellant was acquitted of the charge.

2020  YLR  2618   ISLAMABAD

TUFAIL ABBAS KAZMI VS State

20. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4 (2)—Criminal Procedure Code (V of 1898), S. 342—Recovery of narcotic substance—Appreciation of evidence—Unexplained delay in sending samples to the Laboratory—Effect—Failure to put incriminating evidence to accused—Heroin and Charas weighing 1025 and 235 grams respectively were allegedly recovered from accused—Accused was arrested on 15-12-2017 and recovery was effected on the same date—Samples were drawn and sealed at the spot but were sent to laboratory on 20.12.2017 after unexplained delay of five days—Such exercise was to be completed within seventy two hours of the recovery as per R.4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001—Prosecution failed to explain such inordinate delay caused in completion of such exercise by Investigating Officer—Case properties i.e. heroin and Charas were not put to accused at all at the time of recording of statement of accused under S. 342, Cr.P.C., which was fatal to prosecution case—If a piece of evidence or a circumstance was not put to an accused at the time of recording of his statement under S. 342, Cr.P.C. the same could not be considered against him for the purposes of recording his conviction—High Court set aside conviction and sentence awarded to accused by Trial Court and acquitted him of the charge—Appeal was allowed in circumstances.

2020  PCrLJ  147   HIGH-COURT-AZAD-KASHMIR

Syed BASHIR SHAH/MUBASHAR SHAH VS The STATE through Advocate-General, AJ&K Muzaffarabad

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, refusal of—Scope—Accused was arrested with 1000 grams of charas—Contention of accused, inter alia, was that challan of the case had been presented before the Trial Court and he was no more required for further investigation—Trial Court, while declining bail to the accused before submission of challan, had not committed any illegality—High Court observed that accused was at liberty to move fresh bail application before the concerned court below—Appeal was dismissed.

2020  YLR  2060   Gilgit-Baltistan Chief Court

MUSHARAF KHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, grant of—Further inquiry—Charas weighing 2600 grams was recovered from under the driver seat of car—First Information Report was registered/ lodged by Assistant Sub-Inspector of Police and under the provisions of S.21 of the Control of Narcotic Substances Act, 1997, he was not competent to register case against the accused under Ss. 6, 7 & 8 of the Act nor to search the accused—More than two months had elapsed but report of Chemical Examiner had not been received—Delay in receipt of report of Chemical Examiner had made the case of the accused as one of further inquiry—Nothing was available on record that the petitioner had remained involved in same nature of cases previously—All the prosecution witnesses were public officials, therefore, there was no likelihood of tampering with the prosecution witnesses—Accused could not be put behind the bars for an indefinite period—Bail could not be withheld as punishment—Accused was admitted to bail, in circumstances.

2020  PCrLJ  739   Gilgit-Baltistan Chief Court

ATTA ULLAH VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9, 20, 21 & 25—Possession of narcotics—Bail, grant of—Further enquiry—Recovery of 1000 grams of Charas—Raiding party despite having prior information did not obtain search warrant from a competent court and conducted the raid at the house of the accused without showing circumstances to justify such raid—Although, S. 103, Cr.P.C. was not applicable under Control of Narcotic Substances Act, 1997, but said provision did not exempt the requirement of search warrant and prior permission for entry into the residential premises for the purpose of search—Special provisions of S. 25 or Ss. 20 & 21 of Control of Narcotic Substances Act, 1997, did not as such permit violation of constitutional guarantees of privacy and dignity of man—Being a border line case in between clause “b” and clause “c” of S. 9 of the Act, required further inquiry to determine guilt of the accused—Accused was patient of hepatitis “B” as evident from the report of a diagnostic laboratory—Accused was admitted to bail, in circumstances.

2020  MLD  1846   Gilgit-Baltistan Chief Court

KAMRAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Transportation of narcotics—Bail, refusal of—Scope—Accused persons were alleged to have been apprehended while transporting 29 kilograms of charas—Accused persons were directly charged in the promptly lodged FIR—First accused was driving the vehicle while the second accused was conductor of the vehicle—Police had taken contraband into possession in the presence of marginal witnesses from the vehicle in question—Accused persons could not point out any background of ill-will or bitterness between them and the local police—Offence under S.9(c) of Control of Narcotic Substances Act, 1997 entailed a maximum sentence of death, as such the offence fell within the ambit of prohibitory clause of S.497, Cr.P.C.—Reasonable grounds existed to believe that the accused persons were prima facie involved in the alleged offence—Petition for grant of bail was dismissed.

2020  MLD  1258   Gilgit-Baltistan Chief Court

NIAZ BAT KHAN VS State

1. 516-A—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Superdari of vehicle—Scope—Petitioner had assailed order of lower Court whereby his application for superdari of vehicle was dismissed—Validity—Registration Book of the vehicle transpired that the petitioner was a bona fide owner of vehicle in question—No rival claimant had claimed ownership of vehicle in question—Challan against the accused had been submitted in Court and vehicle in question had not been shown as case property in column 4 of challan, therefore, the said vehicle was not required by the prosecution—Vehicle in question could not be detained in Police Station for an indefinite period as it would decay and deteriorate the colour and parts of vehicle—Prosecution was directed to hand over the vehicle in question to the petitioner on Superdari—Petitioner was directed to produce the vehicle in question in the Trial Court as and when required.

2020  YLRN  121   Gilgit-Baltistan Chief Court

MANZOOR AHMED VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25—Possession of narcotics—Mode of making searches and arrests—Bail, refusal of—Police witnesses—Scope—Accused was alleged to have been found in possession of 7 kgs and 100 grams of charas—Accused was directly charged in the FIR—Briefcase from which the huge quantity of charas was recovered was being carried by the accused—Such a huge quantity of charas could not be planted falsely—Contention of accused that no independent witnesses were associated in the recovery proceedings was not tenable, as the association of private witnesses in such like cases was excluded by virtue of S. 25 of Control of Narcotic Substances Act, 1997—Police witnesses were as good witnesses as any other public witness, till some adverse circumstances were brought on record for not believing an official witness—Prima facie case against accused was made out and he was not entitled for concession of bail—Petition for grant of bail was dismissed, in circumstances.

2020  PCrLJN  104   Gilgit-Baltistan Chief Court

NAVEED ALAM VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, grant of—Further inquiry—Police had allegedly recovered 1000 grams of Charas from the possession of accused, which was a border line case in between subsection (b) & (c) of S. 9 of Control of Narcotic Substances Act, 1997—Accused was a taxi driver by profession and at the time of occurrence, passengers were also present in the said vehicle but police had concealed such fact which required further inquiry to determine the guilt of accused—Accused was not previously convict or hardened and dangerous criminal—Bail was allowed, in circumstances.

2020  PCrLJN  11   Gilgit-Baltistan Chief Court

IFTIKHAR AHMED VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(b)—Possession of narcotics—Bail, refusal of—Misuse of concession of bail—Involvement in cases of similar nature—Scope—Accused was alleged to have been found in possession of 280 grams of charas—Accused had remained involved in the cases of similar nature—Accused was on bail when he repeated the offence—Accused had misused the concession of bail—Case of petitioner though did not fall within the prohibitory clause of S. 497, Cr.P.C., yet his case fell within its exceptions, where bail was not granted to those accused persons who repeated the offence during bail—Accused was not entitled for concession of bail, which was declined accordingly.

2019  SCMR  2061   SUPREME-COURT

ABDUL WAHAB VS State

1. 9(c)—Possession of narcotic—Reappraisal of evidence—Accused and co-accused were convicted under S. 9(c) of the Control of Narcotic Substances Act, 1997, and sentenced to 10 years and 11 years’ rigorous imprisonment respectively along with fines—Appeals filed before the High Court against conviction and sentences were dismissed—Held, that prosecution case was, primarily, structured upon statements of witnesses who were police officials—Said statements were in comfortable unison with each other, despite flux of time, on all the salient aspects of the prosecution case, in terms of interception of the accused and co-accused and recovery of contraband—Said statements could not be discarded merely on account of absence of a witness from the public—Members of public seldom came forward to perform their civic responsibilities and official witnesses were no less credible or trustworthy provided their statements rang true, as in the present case—Accused and co-accused were not able to point out any serious flaw or infirmity that may be viewed as material or substantial in nature in the statements of the prosecution witnesses—Petitions were dismissed in circumstances.

2019  SCMR  2033   SUPREME-COURT

MUHAMMAD HANIF VS State

1. 9(c)—Possession of narcotic—Reappraisal of evidence—Sentence, reduction in—Death sentence altered to imprisonment for life—Accused was the owner of a vehicle being shifted in a truck—On basis of tip off the truck was stopped and upon search of the vehicle therein, 3 mounds and 12 kilograms of charas was found—Statements of the witnesses constituted an uninterrupted chain of facts ranging from seizure to forensic analysis of the contraband—Witnesses were in a comfortable unison on all the salient details regarding interception of the huge consignment as well as steps taken subsequent thereto—Since the contraband comprised of various pieces packed in different bundles, separation of samples for chemical analysis, taken from each bundle, was sufficient to constitute forensic proof—Exoneration of driver and cleaner of the truck by the police, in retrospect, lent credence to the case set up by the prosecution—Plea of substitution raised by the accused without entering the witness box did not hold much water—Culpability of accused was not open to any exception, however, given that the toxic lethality of the contraband was on the lower side, called for exercise of caution in awarding penalty of death—Consequently, penalty of death awarded to accused was altered into imprisonment for life with the amount of fine and consequence of default kept intact—Appeal was partly allowed accordingly.

2019  SCMR  2027   SUPREME-COURT

ANTI-NARCOTICS FORCE VS Syed PARIS ALI

1. 497(5)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic—Petition for cancellation of bail granted on medical grounds, dismissal of— Disease of “Hemorrhoids”—Medical report of accused did not suggest any serious health disorder beyond hemorrhoids nor it appeared to require any treatment which was not available in jail hospital—Said report did not suggest any special procedure for the accused—However, since the trial had commenced and was likely to be concluded soon and concession of bail had not been abused, it was not expedient to recall the bail as the provisions of subsection (5) of S. 497, Cr.P.C were not punitive in nature.

2019  SCMR  2004   SUPREME-COURT

ZAHIR SHAH alias SHAT VS The STATE through Advocate-General, Khyber Pakhtunkhwa

Ss. 9(c) & 36—Penal Code (XLV of 1860), S. 489-B—Recovery of narcotic substance and using counterfeit currency notes as genuine—Reappraisal of evidence— Report of Government Analyst—Incriminating articles, safe custody of—Proof—Chars weighing 10 kilograms was recovered from accused who was convicted by Trial Court and was sentenced to imprisonment for ten years, which was maintained by High Court—Prosecution did not produce that constable who delivered sealed parcel of narcotic substance to Forensic Science Laboratory—Validity—Safe custody and safe transmission of drugs from the spot of recovery till its receipt by Narcotics Testing Laboratory must be satisfactorily established—Such chain of custody was fundamental as report of Government Analyst was the main evidence for the purpose of conviction—Prosecution must establish that chain of custody was unbroken, unsuspicious, safe and secure—Any break in the chain of custody i.e. safe custody or safe transmission would impair and vitiate the conclusiveness and reliability of the Report of Government Analyst thus rendering it incapable of sustaining conviction—Supreme Court set aside conviction and sentence awarded to accused by Trial Court and he was acquitted of the charge—Appeal was allowed.

2019  SCMR  1975   SUPREME-COURT

IZZAT ULLAH  VS State

1. 9(c)—Recovery of narcotics—Reappraisal of evidence—Retracted confessional statement—Accused persons were arrested in possession of heroin in 20 packs, each weighing 1050 grams from secret cavity of their vehicle—Trial Court convicted both accused persons and sentenced one for death and other for imprisonment for life—High Court maintained conviction of both accused persons but altered death sentence into imprisonment for life—Validity—Confessional statement before judicial Magistrate, though retracted subsequently, presented formidable piece of evidence, inexorably pointed upon culpability of accused persons—Female accused made her disclosure within a small span of time soon after her arrest during her first appearance before Magistrate and male accused followed suit—Both accused after having been administered warnings and cautions, though disapprovingly on a printed format, nonetheless made statements found otherwise as voluntary, natural and truthful with relevant details compatible with salient features of case and brief interregnum had ruled out hypothesis of manipulation—Other pieces of evidence as independently sufficient to deliver home charge; forensic report confirmed lethal nature of substance recovered in a quantity that could not be possibly foisted in routine whereas, seizure of vehicle clinched the case—Supreme Court declined to interfere in exhaustive analysis of case of prosecution undertaken by two courts below which concurred in their conclusions regarding guilt of accused persons—Petition was dismissed in circumstances.

2019  SCMR  1928   SUPREME-COURT

ANTI-NARCOTICS FORCE through its Regional Director/Force Commander, A.N.F. Rawalpindi VS QASIM ALI

Ss. 9(c), 15 & 51—Leave to appeal was granted by Supreme Court to consider grant of post-arrest bail to accused by Division Bench of High Court in respect of offences under Ss. 9(c) & 15 of Control of Narcotic Substances Act, 1997.

2019  SCMR  1928   SUPREME-COURT

ANTI-NARCOTICS FORCE through its Regional Director/Force Commander, A.N.F. Rawalpindi VS QASIM ALI

Ss. 9(c), 15 & 51—Criminal Procedure Code (V of 1898), S. 497— Recovery of narcotics—Bail, grant of—Accused was arrested with possession of multiple narcotic substances but was admitted to bail by High Court with reference to S. 497, Cr.P.C.—Validity—Provisions of S. 51 of Control of Narcotic Substances Act, 1997 ousted application of provisions of S. 497, Cr.P.C. to cases under Control of Narcotic Substances Act, 1997—Any reference to S. 497(2), Cr.P.C. by High Court while admitting accused to bail was uncalled for—Supreme Court set aside order in question as merits of the case against accused were not attended by High Court at the time of passage of the same—Supreme Court, instead of cancelling bail of accused remanded matter to High Court to attend merits of the case with observations that during the interregnum the accused shall be deemed to be on ad interim post-arrest bail which the High Court may confirm or not—Appeal was allowed accordingly.

2019  SCMR  1651   SUPREME-COURT

JHUSSAIN ULLAH VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession and trafficking of narcotics—Bail, grant of—Further inquiry—Conscious possession of narcotic—When the accused was arrested by the police, he was not driving the car nor any narcotic was recovered from his exclusive possession rather he was sitting on the rear seat of the car—Prosecution under instructions of the police officer present in court confirmed that there was nothing on the record to connect the accused with the car—In such circumstances, the case of the accused became one of further inquiry falling within the ambit of S. 497, Cr.P.C.—Furthermore accused was behind the bars since more than six  months  and  nothing  new  was  to  be  recovered from him—No useful purpose would be served by keeping the accused incarcerated for an indefinite period—Accused was granted bail accordingly.

2019  SCMR  1649   SUPREME-COURT

FAIZAN ALI VS State

1. 9(c)—Possession of narcotics—Reappraisal of evidence—Benefit of doubt—Safe custody of contraband substance by police not established—Safe transmission of samples to the Chemical Examiner not established—According to the FIR and the memorandum of recovery, ten packets of charas weighing one kilogram each had allegedly been recovered from the custody of the accused and it had been maintained by the prosecution that from each of the said packets one sample weighing five grams had been separated for chemical analysis—One of the police witnesses had categorically stated before the Trial Court that each of the recovered packets had only one slab in it but when the recovered substance had been produced before the Trial Court and was opened it was revealed that ten packets allegedly recovered in the case contained 96 slabs in all—Prosecution alleged that each of the parcels separated from the recovered substance was affixed with three seals reading the initials S.K. but the record showed that the monogram carrying the alphabets S.K. was not found available in the case-property at all—Record of the case also showed that nobody had appeared before the Trial Court to confirm safe custody of the recovered substance at the police station and the moharrir had also not appeared before the Trial Court—No witness had been produced before the Trial Court to state that the recovered substance or the parcels had not been tampered with while in transmission to the Forensic Science Laboratory or the office of the Chemical Examiner—Shape in which the recovered property was produced before the Trial Court indicated that the property so produced before the Trial Court was different from the property allegedly recovered at the time of the raid and recovery—Case against the accused was full of doubts the benefit of which had to be extended to him—Appeal was allowed, the conviction and sentence of the accused were set aside and he was acquitted of the charge by extending the benefit of doubt to him.

2019  SCMR  1314   SUPREME-COURT

MUHAMMAD KAMRAN VS State

1. 9(c)—Qanun-e-Shahadat (10 of 1984), Art. 140—Possession of narcotic— Reappraisal of evidence— Description of narcotic, discrepancy in—Alleged discrepancy in the description of the contraband recovered, between the complaint and statements of the witnesses went unchallenged during the trial and as such the accused could not claim any benefit thereof in the absence of confrontation within the contemplation of Art. 140 of the Qanun-e-Shahadat, 1984—Jail petition was dismissed accordingly.

2019  SCMR  1300   SUPREME-COURT

Mst. RAZIA SULTANA VS State

Rr. 5 & 6—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Report of Government analyst—Safe custody and transmission of samples of the alleged drug from the police to the Chemical Examiner—In cases where the chain of custody was broken, the report of the Chemical Examiner lost its reliability making it unsafe to support conviction—In the present case the sample of narcotic was dispatched to the Government Analyst for Chemical Examination through an officer of the Anti-Narcotics Force, but the said officer was not produced to prove safe transmission of the sample from the police to the Chemical Examiner—Chain of custody thus stood compromised—Resultantly, it would be unsafe to rely on the report of the Chemical Examiner—Conviction and sentence of accused was set aside in circumstances—Appeal was allowed accordingly.

2019  SCMR  1295   SUPREME-COURT

STATE  VS MUHAMMAD RAMZAN

1. 9(c)—Possession of narcotic—Reappraisal of evidence—Sentence, enhancement of—Mandatory life sentence—Whether a sentence lesser than imprisonment for life could be awarded to a convict found in possession of contraband exceeding ten kilograms in weight—Each accused person was found in possession of narcotic in excess of 10 kilograms—Trial Court convicted them under S. 9(c) of Control of Narcotic Substances Act, 1997 and sentenced them to life imprisonment—High Court reduced their sentences to ten years imprisonment—Plea of prosecution that the proviso to S. 9(c) of the Control of Narcotic Substances Act, 1997 mandatorily provided punishment of imprisonment for life in cases where quantity of contraband exceeded ten kilograms—Held, that the command of law escaped notice of the High Court, thus, there was no occasion for the reduction of sentences of accused persons—Impugned judgments of High Court were set-aside and life sentences imposed on accused persons by the Trial Court were restored—Appeals were allowed accordingly.

2019  SCMR  1288   SUPREME-COURT

STATE  VS SOHAIL KHAN

11. 9(c)— Possession of narcotic— Reappraisal of evidence—Sentence, enhancement of—Mandatory life sentence—Whether a sentence lesser than imprisonment for life could be awarded to a convict found in possession of contraband exceeding ten kilograms in weight—Accused was found in possession of 11.4 grams of charas garda—Trial Court convicted the accused under S. 9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to five years imprisonment—High Court maintained sentence awarded by Trial Court and declined to enhance accused’s sentence to imprisonment for life as mandated by law—Plea of prosecution that the proviso to S. 9(c) of the Control of Narcotic Substances Act, 1997 mandatorily provided punishment of imprisonment for life and this left the High Court with no option but to enhance accused’s sentence to imprisonment for life—Held, that the accused had been found guilty of possessing contraband, in excess of ten kilograms—Evidence of recovery and forensic report inexorably pointed towards culpability of the accused—In such circumstances accused was liable to be sentenced to imprisonment for life—Magnanimity shown by the Courts below was outside the remit of law—Impugned judgments of courts below to the extent of quantum of sentence were set aside, and accused was sentenced to imprisonment for life—Appeal was disposed off.

2019  SCMR  1284   SUPREME-COURT

STATE  VS OLUFEMI

1. 9(c)— Criminal Procedure Code (V of 1898), S. 516-A—Reappraisal of evidence—Destruction of recovered narcotic—Accused, a foreign national, was found with 25 kilograms of heroin—Trial Court convicted accused under S. 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to imprisonment for life—High Court proceeded to acquit the accused on the ground that contraband allegedly recovered was destroyed in violation of procedure provided under S. 516-A, Cr.P.C.—Plea of prosecution that destruction of the contraband under magisterial supervision ruled out possibility of any foul play and thus strict non-compliance with the suggested procedure under S. 516-A, Cr.P.C. would not vitiate culpability of accused—Held, that the accused had already left Pakistan (after his acquittal) and examining the vires of the arguments of the prosecution in absence of the accused would be merely an academic discussion without consequential impact—In the event of reversal of the impugned view of the High Court, a cumbersome procedure of accused’s extradition would be far from convenient—Much water had flown under the bridge, and the contraband had since been destroyed—Appeal against acquittal of accused was dismissed in circumstances.

2019  SCMR  1227   SUPREME-COURT

State VS IMRAN NAZIR

1. 9(c)—Possession of narcotic—Reappraisal of evidence—Appeal against acquittal—Accused and co-accused were alleged to be carrying 2800 kilograms of charas in a vehicle—Trial Court convicted them under S. 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced them to imprisonment for life, whereas the vehicle was confiscated in favour of the State—High Court acquitted the accused and co-accused on the ground that the prosecution witnesses failed to point out as to who was driving the vehicle when Anti-Narcotics Force contingent intercepted them—Held, that in the presence of two individuals (accused and co-accused) in the cabin it was incumbent upon the witnesses to unambiguously point out the person on the steering wheel in order to establish conscious possession of the seized narcotic—In the face of wavering positions taken by the prosecution itself, accused and co-accused could not be denied the benefit of the doubt—Appeals against acquittal of accused and co-accused were dismissed, however the order for forfeiture of vehicle impounded was kept intact.

2019  SCMR  1217   SUPREME-COURT

KAMRAN SHAH  VS State

1. 9(c)—Possession of narcotic—Reappraisal of evidence—Benefit of doubt—Safe custody of contraband substance by police—Scope—Case record showed that safe custody of the recovered substance at the local Police Station had not been established by the prosecution during the trial—Moharrir had been produced by the prosecution before the Trial Court but he had said nothing about receipt of the case-property or its safe custody by him—Where safe custody of the recovered substance was not established by the prosecution it could not be held that the prosecution had succeeded in establishing its case against an accused person—Convictions and sentences of the accused persons recorded and upheld by the courts below were set aside and they were acquitted of the charge by extending the benefit of doubt to them—Appeal was allowed.

2019  SCMR  1217   SUPREME-COURT

KAMRAN SHAH  VS State

1. 9(c)—Possession of narcotic—Reappraisal of evidence—Narcotic recovered from secret cavities of a vehicle—Requirement to establish conscious possession of contraband substance—Scope—Narcotic substance recovered in the present case had been recovered from some secret cavities of a vehicle in which the present accused persons were traveling at the relevant time as passengers and the said vehicle was being driven by the co-convict—In such circumstances, it was incumbent upon the prosecution to establish conscious possession of the contraband substance on the part of the accused persons but no evidence worth its name had been brought on the record in such respect—Convictions and sentences of the accused persons recorded and upheld by the courts below were set aside and they were acquitted of the charge—Appeal was allowed.

2019  SCMR  1217   SUPREME-COURT

KAMRAN SHAH  VS State

1. 9(c)—Possession of narcotic—Reappraisal of evidence—Benefit of doubt—Safe transmission of samples from the police to the Chemical Examiner—Scope—Record showed that safe transmission of the samples of the recovered substance from the local Police Station to the office of the Chemical Examiner had not been proved by the prosecution—Samples of the recovered substance had been delivered at the office of the Chemical Examiner by a Constable, who was not produced by the prosecution before the Trial Court—Where safe transmission of the samples of the recovered substance was not established by the prosecution it could not be held that the prosecution had succeeded in establishing its case against an accused person—Convictions and sentences of the accused persons recorded and upheld by the courts below were set aside and they were acquitted of the charge by extending the benefit of doubt to them.

2019  SCMR  1122   SUPREME-COURT

State VS FAKHAR ZAMAN

82. 9(c)—Possession of narcotic—Reappraisal of evidence—Sentence, enhancement of—Mandatory life sentence—Whether a sentence lesser than imprisonment for life could be awarded to a convict found in possession of contraband exceeding ten kilograms in weight—Accused was found in possession of 82.6 kilograms of charas garda as well as 07 kilograms of charas pukhta—Trial Court convicted the accused under S. 9(c) of the Control of Narcotics Substances Act, 1997 and sentenced him to imprisonment for life—High Court upheld the conviction, however reduced the sentence to ten years imprisonment—Plea of prosecution that that there was no occasion for the High Court to reduce the sentence from imprisonment for life to ten years as according to the proviso to S. 9(c) of the Act, lowest mandated sentence for possessing contraband in excess of ten kilograms was imprisonment for life and as the High Court maintained accused’s conviction, it had no option but to maintain the quantum of sentence as well—Held, that the law unambiguously provided a sentence not less than imprisonment for life as well as fine in case an offender was held guilty of possessing contraband in excess of ten kilograms, therefore impugned view taken by the High Court was open to exception—Consequently appeal was allowed, impugned judgment of High Court was set aside and the sentence of life imprisonment awarded by the Trial Court was restored.

2019  SCMR  1102   SUPREME-COURT

State VS ABDUL ALI

1. 9(c)—Possession of narcotic—Reappraisal of evidence—Appeal against acquittal— Benefit of doubt— Accused was allegedly apprehended at a police check post and found in possession of 17 kilograms of opium—High Court acquitted the accused—Held, that there was no explanation provided for the discrepancy between the date of accused’s arrest and his remission into police custody for registration of criminal case—Furthermore the contradictions in the statements of two of the prosecution witnesses were not trivial—Charge against the accused was not free from doubt—Appeal against acquittal of accused was dismissed accordingly.

2019  SCMR  608   SUPREME-COURT

ABDUL GHANI VS State

Ss. 9(c), 14 & 15—Possession of narcotics, aiding, abetment or association in narcotic offences—Safe transmission of samples to the Chemical Examiner not established—Effect—In a case where safe custody of the recovered substance or safe transmission of samples of the recovered substance was not proved by the prosecution through independent evidence, it could not be concluded that the prosecution had succeeded in establishing its case against the accused beyond reasonable doubt—Record of the present case showed that safe custody of the recovered substance as well as safe transmission of samples of the recovered substance to the office of the Chemical Examiner had not been established by the prosecution—Station House Officer (SHO)/complainant had stated before the Trial Court that he had deposited the recovered substance at the malkhana of the local police station but admittedly the moharrir of the said police station had not been produced before the Trial Court to depose about safe custody of the recovered substance—Head Constable who had delivered the samples of the recovered substance at the office of the Chemical Examiner had also not been produced during the trial so as to confirm safe transmission of the samples of the recovered substance—Convictions and sentences of the accused persons recorded and upheld by the courts below were set aside in such circumstances and they were acquitted of the charge by extending the benefit of doubt to them—Appeal was allowed accordingly.

2019  SCMR  326   SUPREME-COURT

MINHAJ KHAN VS State

1. 9(c)—Possession of narcotics—Re-appraisal of evidence—Conviction of accused primarily rested on the testimonies of two police officials/eye-witnesses and one of them was also the complainant—Glaring discrepancies were found in the testimonies of the said two eye-witnesses—Said witnesses in their statements showed purported lack of knowledge about certain aspects of the case which they ought to have remembered whilst having a photographic recollection of other insignificant things—Another police official who took down the written complaint and was also an eye-witness of the occurrence and of the recovery memorandums was not produced before the court—Complainant did not proceed to the police station himself to register the FIR but instead sent another police official with the written complaint, which conduct was inexplicable—Conclusion to be drawn from the circumstances of the case was that the prosecution had failed to establish its case against the accused beyond reasonable doubt, or, at worst, that the accused was involved in a false case for ulterior reasons, therefore it was not safe to maintain the accused’s conviction on the basis of such evidence—Accused was acquitted of the charge under S. 9(c) of Control of Narcotic Substances Act, 1997—Petition for leave to appeal was converted into an appeal and allowed accordingly.

2019  PLD  669   SUPREME-COURT

MUHAMMAD NAEEM VS State

Ss. 2, 3 & 9(c)—Possession of narcotic—Liquid mixture—Percentage of narcotic, determination of—Requirement of calculating the percentage of narcotic drug in a liquid preparation or mixture was mandatory as per S. 3 of the Control of Narcotic Substances Act, 1997 read with the definitional test under S. 2 of the Act.

2019  PLD  669   SUPREME-COURT

MUHAMMAD NAEEM VS State

Ss. 3 & 9(c)—Constitution of Pakistan, Arts. 4 & 10-A—Criminal Procedure Code (V of 1898), S. 423(1)(a)—Possession of narcotic—Intoxicating liquid—Report of Chemical Examiner failed to mention the percentage of “morphine” found in the intoxicating substance—Trial Court acquitted the accused on the basis of such inconclusive Report—On appeal High Court gave directions for obtaining fresh samples of the alleged intoxicating substance and preparing a fresh report of the Chemical Examiner—Legality—Such direction of the High Court amounted to granting the prosecution a premium on its failure to put up a proper case in the first instance—Such judicial intervention was opposed to the adversary principle and offensive to the fundamental right of fair trial and due process guaranteed under the Constitution—High Court has travelled beyond its lawful powers under S.423(1)(a), Cr.P.C. and had in fact directed to conduct re-investigation or further investigation of the case, which was not permissible under the law—Even otherwise, calling for fresh examination of the intoxicating substance at the appellate stage after many years may frustrate the settled laws as to safe custody and safe transmission of the recovered substance making the report of the Chemical Examiner suspect and unreliable—Impugned judgment of High Court whereby the case was remanded to the Trial Court for retrial was set-aside and acquittal recorded by the Trial Court was restored—Appeals were allowed accordingly.

2019  PLD  669   SUPREME-COURT

MUHAMMAD NAEEM VS State

Ss. 3 & 9(c)—Possession of narcotic—Intoxicating liquid—Report of Chemical Examiner failing to mention the percentage of “morphine” found in the intoxicating substance—Effect—Such fatal omission made the report of the Chemical Examiner inconclusive, leaving it uncertain whether the substance passed for a narcotic drug, and the same was unreliable to support conviction under the Act.

2019  PLD  34   QUETTA-HIGH-COURT-BALOCHISTAN

SHAH NAZAR VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Prosecution case was that 80 Kilograms of charas was recovered from the secret cavities of the vehicle—Samples were separated for analysis and sealed into parcels—Record showed that accused-appellant was driving the vehicle at the time of his arrest—Co-accused-appellant was sitting with him in the vehicle—Police party recovered total 80-kilogram charas from secret cavities of the vehicle on their disclosure and pointation—Samples were prepared and on the next day, were sent to the narcotics testing laboratory for analysis—Government Analyst examined the material and found that the same were”hashish pukhta”—Knowledge and awareness of narcotic would be attributed to the accused-appellant as he was driver of the vehicle—Co-accused-appellant could not be absolved from his responsibility as he was sitting with the driver and he could not explain as to why he was sitting with the driver in a private vehicle—Both the appellants were, therefore, responsible for transportation of huge quantity of charas kept in the secret cavities of the vehicle, which undeniably remained in possession and control of both the appellants—Inspite of lengthy cross-examination of the witnesses, nothing beneficial could be elicited of any help to the case of the accused-appellants—Person on driving seat of the vehicle would be held responsible for transportation of narcotic—Positive chemical report produced in evidence proved that substance recovered from the secret cavities of the vehicle of the accused was charas—Prosecution had discharged its initial onus while proving that substance recovered from secret cavities of the vehicle was charas whereas appellants had failed to discharge its burden in terms of S. 29(d) of the Act—No proof of enmity with the complainant and the prosecution witnesses had been brought on record, thus, in absence thereof, the competence of prosecution witnesses being officials was rightly believed—Witnesses were not at all questioned about any previous ill-will or animus with the accused-appellants whereby they could have been falsely nabbed and charged for the possession of 80-kilogram charas—Prosecution had succeeded in proving the charge against the accused-appellants beyond reasonable doubt, in circumstances—Appeal was dismissed accordingly.

2019  YLR  2907   QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL QUDOOS VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Recovery of narcotics—Appreciation of evidence—Delay in sending sample for chemical examination—Ownership of house—Proof—Charas contained in 38 packets was recovered from a house allegedly owned by accused—Nothing was available on record showing that house from which recovery was effected was owned or in possession of accused—No query was either made from neighbour or from revenue authority—Prosecution failed to produce any document showing that accused was owner or in possession of house in question—Prosecution could not prove ownership or occupation of accused in respect of house from which contraband was allegedly recovered—Recovery of contraband from the house could not ipso facto be proof of guilt of accused unless conscious possession and ownership of accused was proved through confidence inspiring evidence which lacked—Prosecution failed to prove that accused was in possession and control of the house—Contraband material was sent for chemical examination after 35 days and such inordinate delay caused serious doubts in case of prosecution and raised question about safe custody of sample as well as safe transmission to Forensic Science Laboratory—Report of Forensic Science Laboratory did not contain full protocols of test applied for and was voidable of mandatory R. 6 of Control of Narcotics Substance (Government Analysis) Rules, 2001—High Court set aside conviction and sentence awarded to accused by Trial Court and accused was acquitted of charge—Appeal was allowed in circumstances.

2019  YLR  2717   QUETTA-HIGH-COURT-BALOCHISTAN

KAAZIM HUSSAIN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 25 & 51—Recovery of narcotics—Bail, refusal of—Police witnesses—Effect—Charas weighing 1600 grams and ice (Sheesha) weighing 200 grams was recovered from accused—Plea raised by accused was that no public witnesses were associated to recovery proceedings—Validity—Any person accused of spreading a deadly poison, i.e., narcotics, in any society was not type of person who could qualify for grant of discretionary relief unless such person had demonstrated that he was entitled to grant of bail in view of principles contained in S. 497(2), Cr.P.C.—Members of public were reluctant to offer themselves as witnesses in criminal cases and in such circumstances no adverse inference could be drawn against prosecution for not associating such like persons as witnesses—Members of police force were competent witnesses in eyes of law and could be credited with veracity unless it was demonstrated that they were false witnesses who had maliciously accused an innocent person of commission of offence for ulterior motives—Bail was dismissed in circumstances.

2019  PCrLJ  1355   QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL AHAD VS STATE

1. 9(c)—Recovery of narcotic—Appreciation of evidence—Benefit of doubt—Prosecution case was that 200 slabs hashish from boot of the car, driven by accused, was recovered, each slab was weighing 500-grams, total weighing 100-Kgs—100-grams from each slab was separated for analysis, total weighing 20-Kgs and the same was sealed in a parcel, while the remaining narcotic was sealed in other parcels—Record showed that the prosecution had neither cited the name of the person in the list of witnesses who had taken the narcotic to Forensic Science Laboratory nor he was produced in the Trial Court for recording his statement, which created doubt with regard to the safe custody and safe transmission of the contraband—Entire recovery of the contraband was effected from the vehicle/car—Complainant deposed that at the time of interception, the accused-appellant owned the vehicle and stated that the said vehicle had still not been transferred in his name; however, while recording statement, the accused-appellant disowned the said vehicle—Prosecution ought to have conducted investigation with regard to ownership of the vehicle, but that had not been done and the entire case was silent with regard to the same—Registration documents of the vehicle were also not taken into possession—In absence of any such evidence, accused-appellant could not be held responsible for the recovery of alleged contraband from the vehicle, ownership whereof was disputed—Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

2019  PCrLJ  957   QUETTA-HIGH-COURT-BALOCHISTAN

GUL HASSAN VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)—Seizure of narcotic—Appreciation of evidence—Benefit of doubt—Chemical analysis—Delay in sending samples of contraband for analysis—Effect—Record showed that the alleged recovery was effected on 1.1.2016 at about 5.30 p.m., but Forensic Science Laboratory Report showed that the sample were received by the Expert on 26.1.2016 with delay of about twenty five days and such delay had not been explained—Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, provided that such exercise was required to be completed within 72 hours of the recovery—No plausible explanation was brought on record by the prosecution in that regard—Said delay was fatal to the prosecution case—Prosecution had failed to examine the Police Officer, who had taken the sample to the Chemical Examiner, so that he could have been cross-examined on the point as to in whose custody the sealed parcels of the samples of charas were lying about twenty five days, which had made the case of prosecution doubtful—Safe custody and safe transmission of the seized narcotic had not been established—Report of the Forensic Science Laboratory did not contain the full protocols of the test applied for, therefore, the same was not reliable—Said report being inconclusive and unreliable could not be made basis to sustain conviction and sentence of the accused—Appeal was allowed and accused was acquitted, in circumstances.

2019  MLD  1929   QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL RAHEEM VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Recovery of narcotics—Proof—Case of further inquiry—Accused was arrested by authorities who recovered 2 kilograms baked Charas from his possession while 3400 grams opium was recovered from rickshaw in which he was travelling—Recovery of two kilograms baked Charas from possession of accused and recovery of 3400 grams opium from rickshaw lacked independent corroboration—Prosecution was yet to prove conscious knowledge of accused about allegedly recovered opium—Case against accused fell within ambit of further inquiry and court while hearing an application of bail was not to keep in view maximum sentence provided by Statute but one which was likely to be entitled in facts and circumstances of case—Accused after facing investigation was already shifted to jail custody thus his further detention did not serve any useful purpose—Bail was allowed in circumstances.

2019  MLD  1377   QUETTA-HIGH-COURT-BALOCHISTAN

SAMIULLAH VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4—Recovery of narcotic substance—Appreciation of evidence—Benefit of doubt—Delay in sending samples for analysis—Effect—Accused persons were charged for possession of charas concealed in secret  cavities  of  the  vehicle—Samples  were  drawn  on  the  same  date  and  sealed  in  parcels—Samples  ought  to  have  been  sent  for  analysis  to  the  Chemical  Examiner  within 72  hours  of  the seizure as required by R. 4(2) of Control of Narcotic  Substances (Government Analysts) Rules, 2001—Samples were sent for analysis after a delay of 20 days—Investigating officer failed to tender any plausible explanation for the delay in sending the samples for analysis—Safe custody of contraband for a period of 20 days was not established  on record—Delay in sending the samples to Forensic Science Laboratory rendered the analysis report as doubtful—Naib Tehsildar who had sent the samples for analysis to Forensic Science Laboratory was not produced before the trial court to ascertain as to when the samples were delivered to him for its onward transmission and during the intervening period whether the same was in the safe custody, as such the safe custody and safe transmission of the contraband was not proved—Prosecution failed to establish that appellants were owner or possessor of vehicle from which contraband was recovered—Judgment passed by trial court was set aside and appellants were acquitted of the charge, in circumstances.

2019  PLD  96   QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL WAJID VS State

Rr. 5 & 6—Control of Narcotic Substances Act (XXV of 1997), Ss.36 & 9—Possessing and trafficking narcotic—Report of government analyst—Report of result of test or analysis—Scope—Accused was charged for possession and transporting of charas weighing 45 kgs—Forensic Science Laboratory’s (FSL) report was in violation of S. 36, Control of Narcotic Substances Act, 1997 and Rr. 5 & 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 as the same bore only one signature of the Federal Government Analyst, while S.36 of the Act and Rr. 5 & 6 prescribed Form II, which stipulated the signatures of two authorized officers of the Laboratory—Report was silent about the necessary protocols, the test applied and the result—Neither any protocol was mentioned in the report nor any test was referred to on the basis whereof the Chemical Expert had concluded that the samples sent for examination contained charas and crystal—Appeal was allowed and judgment passed by Trial Court was set aside.

2019  PLD  96   QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL WAJID VS State

1. 9—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4—Possessing and trafficking narcotic—Delay in despatch of sample for test or analysis—Safe custody of narcotic, not proved—Effect—Accused was charged for possession and transportation of charas weighing 45 kgs—Sample of recovered contraband were drawn and sealed in parcels on the same day—Samples ought to have been received in Forensic Science Laboratory (FSL) within 72 hours of the seizure as required by R. 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, but perusal of examination reports revealed that the samples were received by FSL on eighth day of its recovery—Nothing was available on record to establish that during the intervening period contraband remained in safe custody or that it was altered, manipulated, changed or replaced, thus the delay so occasioned in sending the samples to FSL had rendered the analysis report to be doubtful—Appeal was allowed and judgment passed by Trial Court was set aside.

2019  PLD  96   QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL WAJID VS State

1. 9—Possessing and trafficking narcotic—Safe custody—Scope—Where safe custody of the recovered substance or safe transmission of samples of the recovered substance is not proved by the prosecution through any independent evidence, it cannot be presumed with any degree of confidence that the prosecution has succeeded in proving its case against the accused beyond the shadow of reasonable doubt.

2019  YLR  2798   PESHAWAR-HIGH-COURT

ZAHID SULTAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15—Possession of narcotics and unlicensed arms—Bail, grant of—Further inquiry—Non-association of private witnesses— Effect— Accused applied for his release on bail in a case registered under S. 9(c), Control of Narcotic Substances Act, 1997 and section 15, Khyber Pakhtunkhwa Arms Act, 2013 wherein he was charged for possessing 3437 grams charas along with .30 bore pistol—Charas and pistol were shown to have been recovered but admittedly the recovery was not effected from personal possession of the accused rather it was shown to have been recovered from the alleged residential room of the house of accused—Police had obtained a search warrant from the Magistrate regarding the search of the house of accused, whereby the Magistrate had directed the local police to search the house in the presence of elders of locality but no private and independent person was associated with the alleged recovery—Search warrant, as per order of Magistrate, was effective only for twenty four hours—Raid was conducted after lapse of said period—Magistrate was not competent to issue search warrant in the case to be registered under the provisions of Control of Narcotic Substances Act, 1997, rather the Special Judge could issue search warrant under the provisions of Control of Narcotic Substances Act, 1997—Accused was never involved in such like case before—Investigation of the case was complete and the accused was not required to the local police for further investigation—Report of Forensic Science Laboratory was not available on record—Accused had made out a case for grant of bail as his case fell within the ambit of further inquiry qua his guilt—Bail application was allowed, in circumstances.

2019  YLR  226   PESHAWAR-HIGH-COURT

MUHAMMAD KHAN VS State

1. 497—Control of Narcotic Substances Act ( XXV of 1997 ), Ss. 9 ( c )  & 51—Possession of  narcotic substance weighing  4 Kgs, two Kgs each of heroin and  charas—Bail, refusal of—Consideration of  probable  sentence  at  bail  stage—Scope—Liability of driver of vehicle from where contraband was recovered—Scope—Contrabands were allegedly recovered from  inside (secret cavities) of the door of vehicle driven by the petitioner with co-accused at the front seat—Petitioner contended  that he being just a driver had no conscious knowledge of contraband —Further contention was that it was not the maximum punishment  but ultimate sentence, which was likely  to be imposed, was to be taken into consideration  for the purpose  of bail  and that question of sentence must commensurate with the quantum of guilt —Validity—Driver could not be absolved from the liability, if contrabands  were being transported  in  the  secret cavities of the vehicle  driven by him–Neither  categorization  of sentencing  nor any guess work/speculative exercise  could be undertaken  by the Court at bail stage  to enlarge an accused  on bail in such a case—Investigation was complete, challan had been  submitted  and  trial was likely to commence  so granting bail  to the petitioner  could cause prejudice  to either party—Prima facie case existed against the petitioner , which fell  within the prohibition  contained in S.497, Cr.P.C as well as S.51 of Control of Narcotic Substances Act, 1997—Bail was refused to the petitioner in circumstances.

2019  PCrLJ  1119   PESHAWAR-HIGH-COURT

SALAMATULLAH VS STATE

Ss. 2, proviso & 5—Good Conduct Prisoners’ Probational Release Rules, 1927, R. 9—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Release on parole—Good conduct—Jurisdiction—Effect—Petitioner was convicted and sentenced to imprisonment for life and sought release on parole on grounds of blood donation and good conduct—Validity—Remission on account of good conduct was already granted to petitioner and powers with regard to conditional release of prisoner on account of good conduct solely vested with the Provincial Government—Petitioner had an appropriate and efficacious remedy to approach Provincial Government for redressal of his grievance, therefore,  he  could  not  invoke  Constitutional  jurisdiction  of  High Court  under  Art.  199  of  the  Constitution—Constitutional jurisdiction could only be invoked by an aggrieved person who had no alternate and efficacious remedy for redressal of his grievance under law.

2019  PCrLJ  886   PESHAWAR-HIGH-COURT

NAIK MUHAMMAD VS AHMAD YAR KHAN

1. 426—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possessing and trafficking of narcotics—Suspension of sentence—Scope—Four persons who were convicted under S. 9(c), Control of Narcotic Substances Act, 1997 sought suspension of their sentences—Validity—Admittedly, one of the lady accused at the time of her arrest was accompanied by one minor daughter; she was pregnant of 28 weeks and during captivity gave birth to a male child; second lady accused was accompanied by two daughters at the time of her arrest; third lady accused, as per her counsel, was old and infirm—Accused ladies were only sentenced for five years, which was a short sentence and there was no likelihood of appeal being taken up in near future—So far as male accused was concerned, perusal of facts and judgment led to the conclusion that judgment on the face of it, did not suffer from any legal error—Petition for suspension of sentence was partially allowed to the extent of all three lady accused, their conviction and sentence was suspended till final adjudication of appeal—Prayer of male accused for suspension of sentence was declined.

2019  MLD  951   PESHAWAR-HIGH-COURT

SHAKEEL KHAN VS State

Ss. 497 & 561-A—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Inherent powers of High Court—Accused was charged for driving a vehicle wherefrom heroin was recovered—Trial Court granted bail to accused which was later on recalled on the ground that after the bail granting order report of Forensic Science Laboratory was received showing the chasis number of the vehicle tampered—Held, bail granted to accused could not have been cancelled/recalled/reviewed on the ground of tampering of chassis number of vehicle—Accused was not arrested or granted bail for tampering of chassis number by Trial Court so as to justify cancellation of bail thereunder—High Court set aside the order for cancellation of bail.

2019  MLD  361   PESHAWAR-HIGH-COURT

TAHIR KHAN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic substance weighing four Kilogram—Bail, grant of—Further inquiry—Petitioners ( two brothers ) were arrested while one was sitting on driving seat and the other on the front seat of the vehicle—Two kilograms of Charas each was allegedly recovered from beneath both the seats—Petitioners were alleged to be smuggling the contraband but neither their destination nor their alleged place of communication, from where the Charas was dispatched, had been brought on record—Nature of contraband, either Garda or Pukhta, had not been mentioned in the FIR—Nothing was brought on record in respect of seized vehicle; whether the same was in the name of accused or otherwise—Previous history of the petitioners regarding involvement in such like activities had not been brought on record —Petitioners had been investigated/ interrogated but neither any further recovery had been made nor they had confessed their guilt—Investigation was complete and petitioners were no more required to the prosecution hence, keeping them behind the bars for indefinite period would serve no useful purpose when their case fell within the ambit of S.497(2), Cr.P.C, entitling them to the concession of bail—Bail was granted to the petitioners, in circumstances.

2019  MLD  176   PESHAWAR-HIGH-COURT

Mst. HASEENA VS State

1. 497—Control of Narcotic Substances (XXV of 1997), S.9(c)—Possession of heroin weighing more than three kilograms—Bail, grant of—Lady accused confined along with her infant baby—Welfare of child—Scope—Lady accused having minor girl in her lap, deboarded from passenger van and on search by lady constable five packets of heroin were allegedly recovered from her which she had tied  with her body—Effect—Considerable quantity of heroin  though had been recovered from the possession of petitioner but she was also having suckling baby  girl, eight months of age—Baby was kept in jail with her mother  for no sin of her own—Concept of welfare of minor was incompatible with jail life, so instead of detaining the innocent baby in jail for the crime allegedly committed by her mother, it would be in the interest of justice as well as welfare of minor if her mother/petitioner was to be released on bail—Petitioner was admitted to bail, in circumstances.

2019  PCrLJN  73   PESHAWAR-HIGH-COURT

ASAD VS State

1. 9(c)—Possession of narcotic substance— Search to be made in presence of witnesses—Delay in dispatch of recovered narcotic to Forensic Science Laboratory—Appreciation of evidence—Benefit of doubt— Appellant was charged for possession of 1100 grams of charas—Appellant was shown to have been apprehended from a college at 1840 hours, which was admittedly a busy place having markets and main road—No independent person was associated with the said recovery—Alleged recovery was effected on 3-7-2013, whereas, narcotic drug was received by Forensic Science Laboratory on 26-7-2013—Nothing was available on record to show as to where the alleged samples were lying for twenty four long days after its recovery, which raised doubt regarding safe custody—Appeal against conviction was accepted and sentence awarded to appellant was set aside, in circumstances.

2019  YLR  1961   LAHORE-HIGH-COURT-LAHORE

SHAUKAT ALI VS State

1. 9(c)—Possession of narcotic—Safe custody and transmission of samples—Scope—Safe custody of parcel of sample from point/date of recovery to its receipt in Forensic Science Agency and then production of case property in the court is mandatory—Recovery in narcotic cases is not mere corroborating piece of evidence rather it constitutes the charge and entails punishment.

2019  YLR  1961   LAHORE-HIGH-COURT-LAHORE

SHAUKAT ALI VS State

1. 9(c)—Possession of narcotic—Safe custody and transmission of samples—Appreciation of evidence—Benefit of doubt—Prosecution case against accused was that police, on receiving spy information, apprehended the accused and on his search recovered 1130 grams of heroin—Moharir deposed that complainant handed him over two sealed parcels said to contain heroin on 20/5/2016 and on 30/5/2016 he handed over one sealed parcel of sample to another police official for transmission to Forensic Science Agency—Said police official deposed that Moharir handed him over one sealed parcel on 30/5/2016 and he delivered it in the office of Forensic Science Agency on 3/6/2016—Report of Forensic Science Agency revealed that two parcels were received by its office; one was approximately of one gram and the other was of 1129 grams and that after analysis, the remaining portion was sealed and handed over to the submitting person—Statements of prosecution witnesses revealed that parcel of sample was not delivered to the Forensic Science Agency on the same day or next day—Said police official did not depose that after depositing the sample in Forensic Science Agency he brought back any remaining portion of said parcel or after bringing the same back handed it over to the Moharir or anybody else—Fact remained shrouded in mystery as to how the case property reached the court and whether it was the same case property—Moharir had stated that complainant handed him over two sealed parcels, however, complainant deposed that he had handed over the parcels of case property and samples to yet another police official—Prosecution failed to prove its case against the appellant beyond any shadow of doubt—Appeal was allowed, in circumstances.

2019  YLR  1916   LAHORE-HIGH-COURT-LAHORE

ZAFAR IQBAL VS State

86. 9(c)— Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6—Possession of narcotic— Appreciation of evidence—Benefit of doubt—Each sample was to be marked separate number—Report of test or analysis–Each sample to be analyzed separately—Prosecution case against accused was that police, on receiving spy information, apprehended the accused and got recovered 72 packets of charas weighing 86.400 kg from secret cavity of his car—Charas contained in 72 packets was recovered from possession of accused and the Investigating Officer on opening the same prepared seventy two samples but did not give any mark/identification as to from which packet which sample had been prepared so as to relate to its origin (from which packet it had been derived)—Rule 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 and contents of Form-II of the said Rules demonstrated that it was incumbent upon the investigator/forwarding agency to give specific number to each sample and the substance from which it had been prepared in order to relate to its origin—Likewise, it was compulsory for the Chemical Examiner to prepare a report with respect to each sample by specifically numbering them and giving details of full protocols of the test applied as mandated by R. 6, but said obligation was not fulfilled—Report of Chemical Examiner revealed that he had not analyzed each sample separately or issued separate report to determine that the alleged packets of narcotic, recovered from accused, were narcotic substance or not—Prosecution failed to prove the charge against the accused, in circumstances—Appeal was allowed.

2019  YLR  1872   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD YAHYA VS State

1. 9(c)—Possession of narcotic substance—Appreciation of evidence—Benefit of doubt—Prosecution case was that 2300 grams of charas and wattak money in the sum of Rs. 480/- were recovered from the possession of accused—Investigating Officer had deposed that accused was produced before the Magistrate on the next day, whereas record revealed that the accused was produced before the Magistrate on the day of his arrest, who remanded him to judicial custody—Said contradiction was examined in that context, which made the prosecution case extremely doubtful—Accused had alleged specific mala fides against the police and had adduced documentary evidence to show that the police were inimical to him—Circumstances established that the prosecution had failed to prove its case against the accused—Appeal was allowed, in circumstances and accused was acquitted by setting aside the sentence and conviction recorded by the Trial Court.

2019  YLR  1254   LAHORE-HIGH-COURT-LAHORE

UMAR SHAHZAD VS State

1. 9(c)—- Possessing narcotic substance—Appreciation of evidence—Benefit of doubt—Prosecution case was that 83 packets of charas weighing 100-kilograms and 17 packets of opium weighing 18-kilograms were recovered from the vehicle of accused persons, mostly concealed in the secret cavities of the car—Complainant separated 10-grams narcotic out of every packet for chemical analysis and secured the remaining bulk of both the items through distinct sealed parcels—Prosecution produced three witnesses including complainant to prove the charge against accused persons—Depositions of the said witnesses showed that they were inconsistent in respect of the manner in which the raid was conducted and accused were apprehended—Witnesses also differed on the sizes of the recovered packets—Despite the fact that the car being the most vital evidence, was not produced at trial—Samples and the remaining bulk were sealed with the stamp having the monogram M.A. but there was no explanation as to what it stood for—If they denoted initials of some name, but complainant had not given any reason why he did not put his own monogram on the seals—Witnesses deposed that after drawing samples, complainant put the remaining bulk in four plastic bags and sealed them—None of the witnesses could explain as to where those bags came from although they were specifically asked about them—Said circumstances made the prosecution case extremely doubtful—Documents placed on record by accused depicted that official witness was inimical towards his family—With that background, possibility of false implication could not be ruled out—Complainant had deposed that 83 packets of charas and 17 packets of opium recovered from the accused persons and he separated 10-grams from every one of them and prepared 100 representative sealed samples and secured the remaining bulk in four bags—Official witness had testified that he deposited the case property with the Moharrar—However, said witness neither mentioned the name of the Moharrar nor the total number of parcels which he handed over to him—Head Constable/official witness had deposed that he handed over 100 sealed parcels to constable for onward transmission to the office of the Chemical Examiner—Said witness neither acknowledged receipt of charas and opium from Investigating Officer nor confirmed their safe custody—In the present case, prosecution had produced consolidated reports of 83 samples of charas and 17 samples of opium which did not meet the legal requirements and the same could not be treated as a conclusive proof of the recovery of narcotic substances from the accused persons—Circumstances established that prosecution had failed to prove its case against the accused—Appeal was allowed and accused were acquitted, in circumstances, by setting aside conviction and sentences recorded by the Trial Court.

2019  YLR  1175   LAHORE-HIGH-COURT-LAHORE

AHMED KHAN alias AHMED QAIS VS State

Ss.9(c) & 15—Recovery of narcotics—Benefit of doubt—Secondary evidence—Principle—Accused persons were arrested for carrying 5 kilograms of heroin—Trial Court convicted accused persons and sentenced them to imprisonment for 7 years along with fine—To substantiate proceedings of raid, recovery of narcotics and arrest of accused persons, complainant/ investigating officer did not appear before Trial Court and such fact was fatal for prosecution and sufficient to demolish entire structure of prosecution case—Secondary evidence could be led through another witness who must remain associated with actual witness and was acquainted with his handwriting and signatures—Neither circumstances requiring to lead secondary evidence were brought on record nor witness who was produced as secondary evidence remained associated with complainant/ investigating officer and was not acquainted with his handwriting and signatures— Prosecution witness appearing as secondary evidence never worked with complainant/investigating officer and witness had not seen any document prepared by him—Prosecution failed to substantiate proceedings allegedly carried out by complainant/ investigating officer—Prosecution had alleged that complainant/investigating officer was responsible for concocting false FIRs against innocent persons who was removed from service—Such allegation of prosecution also discredited complaint against accused persons—High Court set aside conviction and sentence awarded by Trial Court to accused persons and they were acquitted of the charge—Appeal was allowed in circumstances.

2019  YLR  925   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ARSHAD MUGHAL VS State

Ss. 9(c) & 36—Control of Narcotic Substances (Government Analyst) Rules, 2001, R. 6—Possession of narcotic drug—Delay in registration of FIR—Safe custody and transmission—Proof—Report of Government Analyst—Non-mentioning of protocols of test applied—Effect—Prosecution case against accused was that he tried to smuggle heroin from international airport—Police, on secret information, apprehended accused and recovered huge quantity of heroin—Held; recovery was made at 12:45 a.m. (night) whereas complaint was prepared at 9:30 a.m. (next morning); such delay raised questions qua veracity of the case and signaled towards consultation, concoction, inducement and procurement on the part of prosecution—Forty five cartons were checked and only footballs were found therein, on further checking of two cartons, heroin was found therein—Prosecution witnesses could not separately point out before the court about the cartons from which heroin was allegedly recovered and could not prove safe custody and transmission of heroin to the Government Analyst—Prosecution witness deposed before court that he handed over recovered parcel to other prosecution witness who deposed on the same lines—Complainant deposed that he transmitted the recovered parcel to the Government Analyst—Report of Government Analyst revealed that he received parcels/samples from Incharge Anti-Narcotic Force by hand—Government Analyst had not mentioned the protocols of tests conducted by him which made the report inconclusive and rendered the same invalid and not reliable for the purpose of conviction—Appeal was allowed in circumstances and conviction and sentence recorded against accused was set aside.

2019  YLR  768   LAHORE-HIGH-COURT-LAHORE

State VS AASHIR NADEEM

1. 540—Qanun-e-Shahadat (10 of 1984), Arts. 129(e), 132 & 133(3)—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b)—Recovery of narcotics—Re-examination of witness—Principle—Authorities, after lapse of 2 years of his examination-in-chief sought re-examination of Investigating Officer who was yet to be cross-examined—Validity—Only examination-in-chief of the said witness had been recorded and his cross-examination was not yet not undertaken, so there was no reason for re-examination of the witness—Re-examination could only be directed for explanation of matter referred to in the cross-examination and not regarding any matter deposed in the examination-in-chief—Provisions of S. 540, Cr.P.C. could not be allowed to be exercised in such a case—Appeal was dismissed in circumstances.

2019  YLR  743   LAHORE-HIGH-COURT-LAHORE

NOSHER alias NOSHA VS State

Ss. 9(a) & 9(c)—Narcotic substances, recovery of—Appreciation of evidence—Quantity of narcotics—Proof—Charas weighing 1050 grams was allegedly recovered from the accused out of which 52.5 grams was sent for chemical analysis—Trial Court convicted accused and sentenced him to imprisonment for 4 years six months along with fine—Plea raised by accused was that safe custody of alleged recovered charas was not proved during trial—Validity—Only one parcel of sample was handed over to Moharir, which was transmitted and got deposited in office of Forensic Science Laboratory—Second parcel comprising remaining allegedly recovered charas/ case property was not handed over to Moharir who had tried to introduce dishonest improvement in such regard—Fact introduced by witness through dishonest improvement during his evidence before court did not carry any legal value rather such conduct had raised doubt regarding evidentiary value of statement of such witness—Case of prosecution against accused to the extent of narcotics received through sealed parcel by Forensic Science Laboratory was proved for purpose of conviction and sentence—High Court converted conviction and sentence recorded under Ss. 9(c) to 9(a) of Control of Narcotic Substances Act, 1997, resultantly, sentence of imprisonment was reduced to 9 months and fine was also reduced—Appeal was dismissed accordingly.

2019  PCrLJ  1491   LAHORE-HIGH-COURT-LAHORE

ZAHIDA PARVEEN alias GOOMA VS State

1. 9(c)—Possession of narcotics—Safe custody and transmission of samples—Scope—Safe custody of case property and its sample is necessary for conviction—Recovery in such cases is not mere corroborating piece of evidence rather it constitutes the charge and entails punishment—Not proving safe custody in such cases is fatal for the prosecution.

2019  PCrLJ  1491   LAHORE-HIGH-COURT-LAHORE

ZAHIDA PARVEEN alias GOOMA VS State

1. 9(c)— Criminal Procedure Code (V of 1898), S. 516-A—Possession of narcotics—Appreciation of evidence—De-sealing of samples by complainant and safe transmission of samples to the Chemical Examiner not established—Benefit of doubt—Prosecution case was that police, on receiving spy information, apprehended the accused persons and recovered five packets of charas weighing five kilograms from one accused and two packets of charas weighing two kilograms from the other one—Representative sample from each packet of recovered charas was not separated and secured at the time of recovery rather it was prepared subsequently when the complainant handed over the case property and accused persons to the Investigating Officer—Investigating Officer handed over the case property to the Moharir but he did not hand over the parcels of sample—Recovery witnesses did not depose about separating and preparing parcels of sample out of case property by the complainant on the asking of Investigating Officer in their presence—No recovery memo. with regard to securing parcels of sample was prepared—Neither complainant nor the Investigating Officer was competent to de-seal the sample—Once case property was sealed, only court could prepare sample out of case property, while exercising powers under S. 516-A, Cr.P.C.—Moharir had deposed that he handed over the parcels to Investigating Officer for onward transmission to Forensic Science Agency, however, Investigating Officer never stated that Moharir handed him over the parcels to him or that he deposited the same in Forensic Science Agency—Safe custody of case property from recovery to its production in the court was not proved—Appeal was allowed, in circumstances.

2019  PCrLJ  1207   LAHORE-HIGH-COURT-LAHORE

FARZAND ALI VS State

10. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that Rangers Force, on patrolling duty, had seen three suspects and asked them to stop, but they started firing upon Rangers party with T.T. pistols—Patrolling party encircled and  arrested  the  present  accused  and  recovered 13-kilograms and 910-grams heroin and 150-grams opium along with packing and one T.T. pistol with two live bullets—Incident report was prepared  and  thereafter FIR was registered on the basis of said report—Recovery memo showed that contrabands were recovered from present accused, whereas incident report showed that said contrabands along with T.T. pistol were recovered from the accused persons—Allegedly, recovered case property was not sealed at the spot—No samples were taken out from the allegedly recovered heroin and opium at the spot—Parcel of such samples was not prepared—Incident report did not show that allegedly recovered heroin and opium were weighed at the spot—Complainant had deposed that he handed over incident report and recovery memo to Police Inspector at 10.00 a.m. at the place of occurrence but said Police Inspector had refused to have received the same in his statement before the court—Allegedly, three suspects including accused made firing upon the Rangers party, but no crime empty shell of any firearm weapon could be found from the place of occurrence by the Rangers or Investigating Officer—Fact remained that alleged place of occurrence was in total supervision and control of Rangers Force—Prosecution witness had introduced dishonest improvement in his statement by mentioning that complainant separated ten grams for sample from each packet of allegedly recovered narcotics and then he sealed the narcotics, whereas, no such fact was mentioned in the recovery memo and even complainant did not depose so—Official witness had stated that his statement was recorded by complainant at 7.30 a.m. and prior to that recovery memo and incident report had already been prepared—Such circumstances suggested that no occurrence had taken place at 7.30 a.m.—Complainant did not admit writing of statement of said witness—Police Officer had deposed that he visited the place of occurrence on the next day and prepared site plan  but in said site plan Police Inspector had been shown as its scribe—Police Officer had stated that on the third day of alleged occurrence accused was brought to the police station and handed over to him and then he was arrested—Record was silent as to where accused remained for three days—Circumstances established that prosecution had failed to prove its case against the accused beyond shadow of doubt—Appeal was allowed, in circumstances  and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

2019  PCrLJ  1207   LAHORE-HIGH-COURT-LAHORE

FARZAND ALI VS State

25. 9(c)—Possession of narcotics—Appreciation of evidence—Safe custody of recovered substance—Prosecution case was that case property was recovered on 25.8.2009 but statedly deposited in warehouse on 29.8.2009—Fourteen samples of heroin weighing ten grams each and one sample of opium weighing ten grams were sent to the office of Chemical Examiner through Inspector Rangers on 28.8.2009—Said facts showed that neither case property nor any sample was received in the police station—Similarly, the alleged samples were never sent by the Investigating Officer of the case to the Office of Chemical Examiner—Record was silent as to who kept samples in the safe custody and then handed over the same to Police Inspector for depositing the same in the Office of Chemical Examiner—Incharge of the warehouse had stated that case property was deposited by Police Inspector in the warehouse on 28.8.2009—Said Police Inspector had deposed that he did so on 29.8.2009—Circumstances  established  that  safe  custody  of  the case  property and samples and then onward transmission of said samples to the Office of Chemical Examiner could not be proved by the prosecution.

2019  PCrLJ  1207   LAHORE-HIGH-COURT-LAHORE

FARZAND ALI VS State

7. 9(c)—Possession of narcotics—Appreciation of evidence—Delay of about more than nine hours in lodging the FIR—Effect—Prosecution alleged that  13-kilograms and 910-grams heroin and 150-grams opium along with packing and one T.T. pistol with two live bullets were recovered from the accused by the Rangers Force—Incident report was prepared and thereafter FIR was registered on the basis of said report—Record showed that occurrence had allegedly taken place 7.30 a.m. but FIR was lodged at 5.10 p.m., for which, no explanation was available—Incident report was silent about the time when it was sent to police station—No police proceedings were available on the incident report about its receipt at the police station and recording of FIR on the basis of the same—Witness had deposed that incident report was prepared at the post at 7.30/8.00 a.m. which was 2-kilometers away from the alleged place of recovery—Said deposition had smashed the case of prosecution and established that neither any occurrence took place at 7.30 a.m. nor any incident report was prepared at the stated time and place—Other witness had also stated that incident report was prepared at the post and not at the place of occurrence—Said witness also deposed that his statement was recorded at 7.30 a.m. after fifteen minutes of preparing the incident report, meaning thereby that the alleged occurrence had not taken place at 7.30 a.m. as claimed by the prosecution—No legal sanctity could be attached to such incident report.

2019  PCrLJ  544   LAHORE-HIGH-COURT-LAHORE

ZARAB KHAN VS State

Ss. 9(b) & 9(c)—Recovery of narcotic substances—Appreciation of evidence—Accused was arrested for possessing pieces of charas weighing six kilograms and slabs of opium weighing one kilogram—One hundred grams of charas and Twenty grams from opium were sent to Chemical Examiner—Trial Court convicted accused and sentenced him to imprisonment for nine years with fine—Validity—Neither weight of each slab of opium was given nor total number of slabs had been mentioned—Fact that as to from how many slabs how much opium was separated for purpose of preparing sample was not clarified—Held, that only that quantity of charas and opium could be taken into consideration for purpose of conviction and sentence which had been received through sealed parcel of Forensic Science Laboratory which, in the present case, was 104.72 grams charas and 19.11 grams opium—High Court altered the conviction of accused under S. 9(b) of Control of Narcotic Substances Act, 1997 for quantity of charas as sent to the Chemical Examiner and convicted the accused under S. 9(a) of the Act for the opium and reduced the sentence to one year and three months—Appeal was dismissed accordingly.

2019  PCrLJ  412   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AMEEN VS State

Ss. 9(c) & 48—Qanun-e-Shahadat (10 of 1984), Art. 114—Criminal Procedure Code (V of 1898), S. 510— Recovery of narcotics—Appreciation of evidence— Estoppel against law— Principle—Applicability—Forensic Science Agency, report of—Scope—Accused was apprehended for possessing heroin and Charas, whereafter report was obtained from Forensic Science Agency—Copy of such report was produced in court after objection was withdrawn by accused and petitioner was convicted and sentenced by Trial Court—Validity—Withdrawal of objection by accused did not amount to waiving of right of questioning admissibility of report during evidence—No concept of waiver or estoppel existed against question of law and especially in criminal law—Such objection could be agitated as and when occasion arose—Court was to decide the case strictly in accordance with law as question of life and liberty of accused was to be decided—Prosecution had failed to bring on record original report of Forensic Science Agency through which prosecution had to confirm that alleged recovered material from appellant was contraband for seeking conviction and sentence of accused—Such report of Forensic Science Agency was neither a legal document nor it carried any sanction of law and same could not be read against accused as a piece of evidence—Trial Court was not justified in recording conviction against accused on basis of such inadmissible document—High Court set aside conviction and sentence awarded to accused awarded by Trial Court and acquitted accused—Appeal was allowed in circumstances.

2019  MLD  1931   LAHORE-HIGH-COURT-LAHORE

ZIAULLAH VS State

1. 9—Possession of narcotics—Safe custody—Scope— Unbroken chain of safe custody of parcel of sample has to be proved, otherwise conviction is not possible because in such cases recovery is not mere corroboratory piece of evidence rather it constitutes the offence itself and entails punishment.

2019  MLD  1931   LAHORE-HIGH-COURT-LAHORE

ZIAULLAH VS State

14. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Safe custody—Scope—Accused was apprehended by the police party while cutting flowers of poppy plants—“Doda” was separated from cultivated “poast”, which was 2½ kilograms, out of which, 10 “Dodas” weighing 120 grams were separated for chemical analysis and secured into a sealed parcel of sample while the remaining case property was also sealed into a parcel—Report of Chemical Examiner revealed that sample parcel was dispatched by Excise and Taxation Officer of the district through a constable on 14.4.2011 and it was received in the Laboratory on 19.4.2011—Statements of prosecution witnesses revealed that sample parcel was handed over by the Constable to the witness on 19.4.2011 for its onward transmission to the office of Chemical Examiner and the witness delivered the same on 19.4.2011—Constable who had delivered the sample parcel was not produced by the prosecution and he was not even cited as a witness in the case—Safe custody of sample parcel from the point of its preparation till its receipt in the office of Chemical Examiner was not proved—Prosecution failed to prove its case against the accused beyond shadow of doubt—Appeal against conviction was accepted, in circumstances.

2019  MLD  1574   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD NAWAZ VS State

1. 9(c)—Possession of narcotic—Safe custody and transmission of samples for Forensic Report etc.—Failure of Investigating Officer to seize parcels of sample—Effect—Charas comprising of two pieces weighing 1000 grams and 570 grams in a shopping bag was recovered from accused—Complainant while appearing as witness stated that he handed over the accused and case property to the Investigating Officer and had not handed over the parcels of sample to the Investigation Officer rather but to the Moharir—Cross-examination of complainant proved that such portion of his statement was improvement—Complainant was required to hand over the parcels of sample to the Investigating Officer—Case property produced in the court was only 750 grams comprising of four pieces in the parcel, meaning thereby that the recovered case property was not produced in the court—Moharir had stated that he handed over one parcel of sample to Investigating Officer for transmission to Forensic Science Agency on 25/1/2018 while Investigating Officer stated that sample was handed over to him on 29/1/2018—Said fact demolished the safe custody of parcel of sample—Appeal was allowed, in circumstances.

2019  MLD  1574   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD NAWAZ VS State

1. 9(c)—Possession of narcotic—Safe custody and transmission of samples for Forensic report etc.—Scope—Proving unbroken chain of Safe custody of parcel of sample from point/date of recovery to its receipt in the office of Government Analyst is mandatory because in such cases recovery is not mere corroboratory piece of evidence rather it constitutes the charge and entails punishment.

2019  MLD  1518   LAHORE-HIGH-COURT-LAHORE

SAFDAR IQBAL VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Case property /recovered substance, safe custody of —Principles—Complainant had stated that the seized case property had been handed over to the Investigating Officer at the spot—Neither complainant nor Investigating Officer had a case that the samples drawn from the case property had been kept in the safe custody of either of them—Said witnesses had not even stated that the samples drawn from the case property had been handed over to any other officer or Moharrar for keeping it in safe custody—Moharrar had deposed during court statement that Investigating Officer handed over to him 90 sealed parcels containing Bhang—Moharrar did not depose that the complainant or the Investigating Officer had handed over to him 90 parcels of the samples drawn from the case property—Neither the complainant nor the Investigating Officer had explained those aspects during their examination before the court—Even the complainant did not depose that he handed over parcels of samples to the Investigating Officer—No explanation was available to establish safe custody of the parcels of samples drawn from 90 bags of Bhang weighing 18,00-kilograms from the time of seizure till its submission in the office of Forensic Science Agency—Mere oral evidence as to preparing of parcels of samples drawn from the substance recovered from the possession of the accused-appellant would not discharge the heavy burden which laid on the prosecution.

2019  MLD  1518   LAHORE-HIGH-COURT-LAHORE

SAFDAR IQBAL VS State

S.9(c)—Control of Narcotic Substances (Government Analysts) Rules , 2001, R.4(2)—Possession of Narcotics—Appreciation of evidence—Benefit of doubt—Chemical analysis—Report of the Forensic Science Agency revealed that it was a collective report of all samples, which was total non-compliance of the Control of Narcotic Substances (Government Analysts) Rules, 2001—Narcotics analysis report of the Forensic Science Laboratory was not as per requirement of law, in circumstances.

2019  MLD  1518   LAHORE-HIGH-COURT-LAHORE

SAFDAR IQBAL VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that 90 bags of Bhang weighing 45 maunds was recovered from the dera of accused, which was taken into possession by the complainant—Out of the recovered substance, a sample of 200 grams from each sack was separated for analysis—Prosecution had failed to connect the accused-appellant with the alleged recovered Bhang and also could not establish that the dera wherefrom 90 bags containing Bhang were recovered, was owned and possessed by the accused-appellant—Nothing was available on the record to show that the contraband substance was recovered from the dera—Investigating Officer, who had placed on record the site plan in relation to the place of recovery, which depicted totally different place of recovery—Said circumstances showed that the prosecution had failed to prove that the accused-appellant was in conscious possession of the alleged contraband—Ninety numbers of samples, each having 200 grams Bhang were described in the recovery memo.—Narration regarding the samples showed that samples taken from the spot were not shown as specifically marked with alphabets or numbered, but nowhere it was stated that items were marked with alphabets or numbered—Said fact created a suspicion about the identity of the properties seized from the spot and those produced before the court—Seizure memo. showed that, samples and each sack/bag seized from the spot had not been described as marked with alphabets or numbered to link specific sample with specific sack/bag—Prosecution could not convince the court that specimen seal impression was put on the case property in question—Explanation of any nature not coming from the complainant, would be fatal to the prosecution and the accused was entitled to the benefit of doubt—No scope for the prosecution, even to maintain a stand that seal was affixed by the complainant on the parcels of samples and case property—When reference of the seal impression was not deposed by the complainant, there was absolutely no basis to connect the case property with the substance recovered from the place of recovery—Court, in circumstances, could doubt the identity of the case property seized and the samples forwarded for the purpose of analysis—Appeal was allowed, in circumstances and accused was acquitted of the charge by setting aside conviction and sentence recorded by the Trial Court.

2019  PCrLJN  87   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD NADEEM VS State

1. 9(c)—Possession of narcotic substances—Appreciation of evidence—Benefit of doubt—Complainant arrested accused in connection with investigation of an FIR and during investigation of the case accused disclosed that he had charas in his house, he led the police party to it and got recovered a shopping bag from an iron box in his residential room which contained 1140 grams contraband—Validity—Complainant stated in his cross-examination that he had separated two samples of 10 grams each from recovered contraband—Statement of complainant was in conflict with recovery memo which stated that only 10 grams were drawn from recovered substance and one sample parcel was prepared—Police officials had raided accused’s house two days earlier and had recovered 5920 grams charas—Recovery of another 1140 grams charas from accused’s house two days later seemed dubious—Appeal against conviction was accepted, in circumstances and accused was acquitted of the charge.

2019  YLR  2544   KARACHI-HIGH-COURT-SINDH

Mst. FOUZIA VS State

1. 497(1)—Control of Narcotic Substances Act (XXV of 1997), Ss. 9 & 51—Possession of two kilograms of Charas—Bail, grant of—Accused, a lady with two minors—Effect—Crime against society—Scope—Such charge/allegation alone was not sufficient to keep one behind the bars for an indefinite period—Existence of reasonable grounds must be shown to believe prima facie linkage of accused with the charged offence—Bar provided by S. 51 of Control of Narcotic Substances Act, 1997 could not operate as decisive for petition for bail—Bail pleas were to be granted or rejected in tentative examination of available material and not on the basis of charged offence—First Information Report had not mentioned the shape of alleged recovered Charas nor the thing in which the same was wrapped—Such aspects prima facie would require explanations from prosecution—Law had provided some privileges to female accused under S. 497(1), Cr.P.C., which alone was not sufficient for releasing the lady on bail but could well be taken as a favouring circumstances—Court was guardian of minors, and their welfare was to be kept in view in all circumstances—Two minors with the petitioner were not shown to have any other refuge, except the petitioner—Prosecution had not claimed any apprehension of absconsion of petitioner during trial, if released on bail—Petitioner was admitted to bail, in circumstances.

2019  YLR  2287   KARACHI-HIGH-COURT-SINDH

SARTAJ KHAN VS State

Ss. 9(c) & 29—Possession of narcotic substance—Presumption from possession of illicit articles—Scope—Record showed that recovery of charas from the secret cavity of truck trailer stood to established, hence it was the turn of the accused to prove contrary—Without such proof, the accused would be held guilty by virtue of S. 29 of the Control of Narcotic Substances Act, 1997.

2019  YLR  2287   KARACHI-HIGH-COURT-SINDH

SARTAJ KHAN VS State

1. 9(c)—Possession of narcotic substance— Appreciation of evidence—Acquittal on technicalities—Technicali-ties of procedural nature or otherwise were to be overlooked in case of transportation or possession of narcotics—If such case stand otherwise proved, the approach of the court should be dynamic and pragmatic, in approaching true facts of the case and drawing correct and rational inferences and conclusions.

2019  YLR  2287   KARACHI-HIGH-COURT-SINDH

SARTAJ KHAN VS State

Ss. 9(c) & 25—Possession of narcotic substance—Appreciation of evidence—Excise Officials as recovery witnesses—Competence—Principles—Prosecution case was that 35-kilograms of charas was recovered from the truck trailer of accused—Ocular account was furnished by complainant and mashir—Record showed that 35-kilograms of charas contained in 35-packets and arms and ammunition were recovered from the secret cavity of truck trailer driven by the accused—Two hundred grams of charas was separated as samples from each packet for chemical examination—Circumstances suggested that the accused was found responsible for transportation of narcotics—Nothing was available on record to suggest that the said truck trailer was either hired by someone else or he had no knowledge about the availability of narcotic substance therein—In the present case, Excise Officials were witnesses, who were competent witnesses and their evidence could not be discarded only for the reason that they were Excise Officials—Said witnesses had furnished straight forward and confidence inspiring evidence—Nothing was on record to show that said witnesses had deposed against the accused maliciously or out of any animus—Circumstances suggested that it could not be believed that the Excise Officials would plant such a huge quantity of narcotic along with arms and ammunitions against the accused at their own sources—Objection of defence that the complainant had acted as Investigating Officer in the case and that all the witnesses were Excise Officials was of no help to the accused as there was no bar in the law for a complainant to act as Investigating Officer of the case—Witnesses had deposed in the same line to support the prosecution case and despite cross-examination at length, the defence had failed to point out any dent or to extract any material contradiction fatal to the prosecution case—Circumstances established that prosecution had succeeded to bring the guilt of accused to home and had proved its case against the accused beyond any shadow of doubt—Appeal was dismissed accordingly.

2019  YLR  2287   KARACHI-HIGH-COURT-SINDH

SARTAJ KHAN VS State

Ss. 9(c) & 25—Possession of narcotic substance—Appreciation of evidence—Prosecution case was that 35-kilograms charas was recovered from the truck trailer of accused—Defence had objected that no private witness was associated at the time of recovery, which was violation of provision of S. 103, Cr.P.C.—Validity—In view of S. 25 of Control of Narcotic Substances Act, 1997, application of S. 103, Cr.P.C. had been excluded and non-inclusion of any private person was not a serious defect to vitiate the conviction of accused—Appeal against conviction was dismissed, in circumstances.

2019  YLR  2052   KARACHI-HIGH-COURT-SINDH

AMIR VS State

Ss. 497 & 103—Control of Narcotic Substances (XXV of 1997), Ss. 9(c), 25 & 51—Possession of Charas weighing 3700 grams—Bail, refusal of—Huge quantity of narcotic substance—Scope—Further inquiry—Scope—Petitioner contended that provisions of S.103, Cr.P.C. had not been followed and real culprit, in the offence, had been benefitted—Validity—Application of S. 103, Cr.P.C had specifically been excluded by virtue of S.25 of the Control of Narcotic Substances Act, 1997 , therefore, Trial Court had rightly attended the plea of the petitioner—Accused while seeking bail in a case, falling within prohibitory clause of S.497, Cr.P.C., was required to bring his case within the meaning of further inquiry not by raising defence but from collected material , which too, by tentative referral thereof—Section 51, Control of Narcotic Substances Act, 1997, prima facie, had created bar in granting bail in such like cases, therefore, the bail, normally, need not be granted on mere claim of further inquiry —Contention of the petitioner, regarding his substitution by releasing real culprit, had no substance—In absence of any serious animosity there appeared no reason for the police to implant such huge quantity of charas, which, admittedly, the petitioner had not attempted to establish by placing any documentary material—Aspects like arrangement of measurement tool etc. could not be touched/examined at bail stage as such like questions would always require a response from the concerned—Petitioner had failed to make out a case for the concession of bail—Bail was refused to the petitioner, in circumstances.

2019  YLR  1897   KARACHI-HIGH-COURT-SINDH

BAHAUDDIN VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 4 & 5—Seizure of narcotics—Appreciation of evidence—Chemical analysis—Delay in sending sample to Chemical Analyser—Effect—Rules 4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 were not mandatory and controlled the substantive provisions of the Act and to apply in such a manner that its operation would not frustrate the purpose of the Act—Failure to follow the Rules would not render the search, seizure and arrest under the Act, absolute nullity and non-est—Objection having been raised to the effect that the contraband was unsealed or tampered with or manipulated delay would not affect the result of analysis.

2019  YLR  1897   KARACHI-HIGH-COURT-SINDH

BAHAUDDIN VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic substance—Appreciation of evidence—Police officials as sole recovery witnesses—Competence—Principles—Prosecution case was that 269 slabs of charas, each slab weighing 1-kilogram, total 269-kilograms were recovered from the secret cavities of a vehicle, driven by accused, out of which, 15-kilograms were sealed for samples while remaining charas was sealed separately—Report in that regard had been received in positive—Accused, in circumstances, was liable to be held responsible for having only 15-kilograms of charas in his possession which offence attracted provision of S.9(c) of the Control of Narcotic Substances Act, 1997—Accused had been convicted by the trial court for life imprisonment accordingly—Circumstances established that the prosecution had succeeded in establishing its case beyond any shadow of doubt—Appeal was dismissed accordingly.

2019  YLR  1795   KARACHI-HIGH-COURT-SINDH

SABIR HUSSAIN VS State

1. 9(c)—Possession of narcotic substance—Appreciation of evidence—Police officials as sole recovery witnesses— Competence— Principles—Prosecution case was that 144-kilograms of charas was recovered from the vehicle of accused persons—Record showed that accused were arrested while they were transporting huge quantity of charas in a vehicle—Prosecution examined complainant and mashir, who fully supported the prosecution case on material points and categorically deposed that during patrolling, they arrested the accused and recovered two bags in between front and rear seats of the car and four bags and scale from the dicky containing charas, each bag became 24-kilograms—Charas was sealed at the spot and memo was prepared in presence of mashirs—Witnesses were cross-examined at length but nothing could be brought on record in favour of accused—In order to strengthen the departure from police station, the complainant produced departure and arrival entries—Entire case property was sent to Chemical Examiner for examination and report within two days—Report of Chemical Examiner showed that the parcel was received at laboratory in sealed condition and seals were perfect as per copy of letter sent by the complainant—Result of the test showed that the parcel was found containing charas—Accused, in circumstances, were rightly held responsible for committing the offence charged against them because the knowledge and the conscious possession of the accused persons could not be ruled out—No proof regarding previous enmity with the police or mala fide had been produced by accused for their false implication in the case—Neither the accused persons examined themselves on oath in disproof of the charge nor examined any defence witness in support of their pleas—Police could not possibly foist such a huge quantity of charas along with vehicle against the accused—Prosecution had proved its case against the accused beyond any shadow of doubt, in circumstances—Appeal being devoid of merits was dismissed.

2019  YLR  1795   KARACHI-HIGH-COURT-SINDH

SABIR HUSSAIN VS State

1. 9(c)—Possession of narcotic substance—Appreciation of evidence—Complainant acted as Investigating Officer—Plea that complainant having acted as Investigating Officer, was an interested witness—Validity—No bar existed that a complainant could not be an Investigating Officer of the case.

2019  YLR  1795   KARACHI-HIGH-COURT-SINDH

SABIR HUSSAIN VS State

Ss. 9(c) & 25—Possession of narcotic substance—Appreciation of evidence—Police officials as sole recovery witnesses—Competence—Principles—Prosecution case was that 144-kilograms of charas was recovered from the vehicle of accused persons—Prosecution witnesses were Police Officials—Defence had alleged that no private witness was associated at the time of recovery, which was violation of provision of S.103, Cr.P.C.—Validity—Application of S.103, Cr.P.C. had been excluded by S.25 of Control of Narcotic Substances Act, 1997, in such cases—Appeal against conviction was dismissed, in circumstances.

2019  YLR  1585   KARACHI-HIGH-COURT-SINDH

BAHAR BEGUM VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that on spy information, accused was arrested at railway phattak and 2-kilograms heroin powder was recovered from her purse—Record showed that in-spite of spy information, no private person was associated as mashir of recovery—Evidence reflected that personal search of lady accused was conducted by Excise Constable, but the prosecution had failed to examine the said Official—Presumption would be that had she been examined, she might have not supported the case of prosecution—Non-examination of such material witness would be fatal to the case of prosecution—Excise Constable, had taken heroin parcel to the Chemical Examiner for analysis but he had not been examined before the court to prove the safe transit—Incharge of Malkhana of Excise Police Station had not been examined to establish the safe custody of the heroin powder at Excise Office Malkhana—Application was submitted on behalf of the accused to the police that heroin had been foisted upon her—Investigating Officer did not interrogate/ investigate regarding the said application from concerned officer/agency in order to ascertain the truth—Accused was aged about 55-years and had no criminal record or previous conviction in such type of offences—Investigating Officer had deposed that private persons were not available at the time of arrest and recovery but in the cross-examination stated that private persons were present around the place of recovery—Witness had admitted that place of arrest and recovery was thickly populated area and it was day time incident and it was the case of spy information—Mashir had admitted that personal search of lady accused was not conducted at the time of her arrest—Circumstances suggested that it was not believable that the private persons were not present except Excise Officials and it was not believable that lady accused was waiting on road for customer to sell the heroin powder while carrying heroin in her purse—Excise Officials could not search the said customer—No doubt, report of the Chemical Examiner was positive, but reflected that said report had not been prepared by the Chemical Examiner according to the protocol as provided in the rules, as such, positive report of the Chemical Examiner was deficient—Such positive report would not improve the case of prosecution—Circumstances established that prosecution had failed to establish its case against the accused beyond shadow of doubt, benefit of which would be extended to the accused—Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court.

2019  YLR  1000   KARACHI-HIGH-COURT-SINDH

MUHAMMAD BASHEER VS State

6. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that 2200-grams opium in a shopper was recovered from the possession of accused—Accused disclosed that co-accused had delivered the same to him—Both the accused and co-accused were arrested—Out of 2200-grams opium, 50-grams were sent to the chemical analyzer—Accused after completion of his sentence had been released from the prison and his appeal had been dismissed as not pressed—Record showed that the complainant who was also Investigating Officer of the case arrested the present accused from Railway Station but he did not associate any independent person from the place of incident though private persons were available at the place of occurrence—Evidence showed that the place of incident was also surrounded by the shops and hotels and it was day time incident but despite that fact, the complainant did not make any effort to collect any private person from the locality to witness the recovery proceedings—Evidence of Police Officials though was as good as that of any other witness but when the whole prosecution case rested upon the Police Officials and hinged upon their evidence and non-association of private witness in the recovery proceedings created doubt in the prosecution case—Investigating Officer of the police or such other force, under S.25 of Control of Narcotic Substance Act, 1997, was not authorised to exclude independent witnesses and do away with principle of producing the best available evidence—No specific bar existed under the law against the complainant who was also Investigating Officer of the case, but being the complainant, it could not be expected that as an Investigating Officer he would collect any material which go against the prosecution and give benefit to the accused—Evidence of such officer, therefore, was a weak piece of evidence and for sustaining a conviction it would require independent corroboration which was lacking in the present case—Due to non-association of independent witness as mashir in the present case, false implication of the accused persons could not be ruled out—Opium was recovered from the possession of accused on 6.9.2004 but the Report of Chemical Examiner showed that it was sent to the office of Chemical Examiner on 16.7.2004 about two months prior to the incident—Record did not show that as to through whom the case property was sent to the Chemical Examiner—Prosecution had failed to establish the safe custody of opium at Malkhana during the intervening period—Safe transit to the Chemical Examiner had also not been proved—Chemical Examiner had not been examined who was the best witness to corroborate the evidence of prosecution in respect of the examination of case property, therefore, adverse presumption would be taken—Circumstances established that prosecution had failed to prove its case against the accused—Appeal was allowed and accused persons were acquitted, in circumstances.

2019  YLR  954   KARACHI-HIGH-COURT-SINDH

MIANDAD VS State

1. 9(c)—Possessing and trafficking narcotic—Appreciation of evidence—Benefit of doubt—If complainant and his witness had proceeded to the place of incident together with the rest of Police personnel, on spy information, then they were, under lawful obligation to have associated with them independent person to witness the possible arrest and recovery, but it was not done for no reason; which had rendered the proceeding as doubtful one—One shopper was found containing seven pieces of charas, weighing six K.Gs.—Samples were drawn from each and every piece of charas so secured—Samples so drawn were not weighed, marked and sealed individually which rendered the proceedings doubtful—Evidence of the complainant and witness, were not inspiring confidence so as to rely to maintain conviction and sentence of accused—Evidence of Mashir, was silent with regard to preparation of mashirnama of place of incident at the dictation of Inspector—No reliance could be placed upon mashirnama of place of incident—Samples of charas sent to Chemical Examiner, were delivered to him with delay of one day, without any explanation for such delay—Samples separated from six pieces were found ten in number by Chemical Examiner on desealing—No explanation was offered by prosecution for such discrepancy—Prosecution, having not been able to prove its case against accused beyond shadow of doubt, accused was entitled to its benefit—Conviction and sentence awarded to accused by the Trial Court by way of impugned judgment could not sustain—Accused was acquitted from the charge in circumstances.

2019  YLR  51   KARACHI-HIGH-COURT-SINDH

MUNIR HUSSIAN alias MUNAWAR alias MUNO VS State

3. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that two slabs of charas weighing two kilograms and Rs. 200 were recovered from the possession of the accused, out of each slab 100 grams were separated for chemical examination—Place of recovery was a shrine but the complainant and mashirs had stated that during the process of proceedings of arrest and preparation of mashirnama, none attracted at the place of recovery—Investigating officer went to the place of incident at about 3.15 p.m., but did not associate any private person to act as mashir and cited police officials as mashirs—Said facts showed that Investigating Officer either deliberately had not cited any private person as mashir or had completed all the formalities at police station, which created serious doubt—Complainant had deposed that some words were written over the packet of charas but mashirnama was silent on description—Complainant had admitted that he had not mentioned that fact in the mashirnama—First Information Report or the mashirnama had not mentioned the denomination of currency notes, which made the case of the prosecution as doubtful—Mashir was declared hostile by the Prosecutor and with the permission of the court, witness was cross-examined and during cross-examination by the Prosecutor, he had deviated from his first version and admitted all the suggestions made by the prosecutor—Many contradictions existed in the evidence of the prosecution witnesses—Complainant had deposed that they consumed 35/40 minutes in respect of arrest of accused and recovery and preparation of mashirnama on the spot, whereas the witness deposed that they consumed about 15/20 minutes in the whole proceedings—Prosecution, in circumstances, had failed to prove its case on the point of safe custody—Neither any entry of Malkhana register had been produced by the witnesses in their evidence nor prosecution had examined incharge of the Malkhana—Prosecution had not examined Head Constable through whom case property was sent to the Chemical Examiner—Circumstances established that prosecution had failed to discharge its liability of proving the guilt of the accused beyond shadow of doubt, benefit of which would be extended to the accused—Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court.

2019  PCrLJ  1610   KARACHI-HIGH-COURT-SINDH

JUMA KHAN VS State

1. 9(c)—Criminal Procedure Code (V of 1898), Ss. 225 & 537—Possession of narcotics—Case remanded on the basis of defective charge framed against the accused—Validity—Prosecution case was that one kilogram heroin powder and two Bachkas, containing 30 packets of charas, each packet weighed to be one kilogram, total 60-kilograms were recovered from the possession of the accused—Record showed that the charge so framed by Trial Court included S. 8 of Control of Narcotic Substances Act, 1997 but no particulars in that respect were mentioned therein which included the vehicle whereby or through which such attempt of trafficking narcotics was allegedly being made by the accused—Proving a charge of recovery from physical possession was different from that of proving a charge of conscious possession in matter relating to trafficking of narcotic; in later case, the prosecution was to prove conscious knowledge of accused which, however, was to be presumed in former case—Failure of Trial Court in mentioning the weight of the charas lying in the Bachkas and particulars of trafficking of narcotics could not be regarded as mere error or omission as same were not found sufficient to let the accused know the exact nature of accusation against him—Such error or omission apparently had caused serious failure of justice, as such it was not curable under S. 537, Cr.P.C.—Trial Court did not ask any question with regard to vehicle in question and recovery thereof yet had convicted the accused on the case of prosecution that such recovery was effected from vehicle which was in possession of accused—Impugned judgment of the Trial Court being not sustainable, was set aside, in circumstances—Case was remanded to Trial Court for fresh trial after framing fresh charge.

2019  PCrLJ  1302   KARACHI-HIGH-COURT-SINDH

TAHIR-UZ-ZAMAN VS State

Ss. 9(c) & 29—Possessing and trafficking narcotics—Appreciation of evidence—Sentence, reduction in—Burden of proof—Scope—Prosecution case was that 10-kilograms of charas was recovered from the possession of accused—Record showed that accused was caught red-handed, narcotics were recovered from his possession and entire recovered charas was sent to the chemical analysis—Report of the Chemical Examiner was positive—Circumstances established that prosecution had discharged its burden successfully which would shift to the accused within meaning of S. 29 of the Act—Such burden would require the accused to firstly cause dent in prosecution case and secondly to establish least justify possibility of false implication or foisting  of  huge quantity of charas, but defence had failed in doing so—In the present case, the accused was in jail for the last five years and the family of the accused was in miserable condition—Jail report showed that the conduct of the accused during confinement was satisfactory—Accused also undertook that he would not deal with the narcotics in future—Accused was first offender and had no previous criminal record/history—Accused had claimed himself to be the only male member of the family and had served about five years of imprisonment—Accused, in circumstances was to be given the opportunity to improve himself as a law abiding citizen—In the present case, non-examination of Police Official who allegedly delivered the narcotics substance in question to the office of Chemical Examiner and made no efforts to associate any independent person from the locality as witness in the recovery proceedings, constituted mitigating circumstances—Present case was a fit one for departure from the normal practice of determining quantum of sentence, so it would serve both the purposes of deterrence and reformation, if the sentence awarded to the accused was reduced to “already undergone by him”—Sentence of the accused was altered and reduced to the period which he had already undergone—Appeal was dismissed by maintaining the conviction awarded to the accused, however, the sentence awarded to the accused was altered and reduced to the period he had already undergone.

2019  PCrLJ  1302   KARACHI-HIGH-COURT-SINDH

TAHIR-UZ-ZAMAN VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic substance—Appreciation of evidence—Police officials as sole recovery witnesses—Competence—Principles—Prosecution case was that 10-kilograms of charas was recovered from the possession of the accused—Prosecution witnesses were police officials— Defence had alleged that no private witness was associated at the time of recovery, which was violation of S. 103, Cr.P.C.—Validity—In view of S. 25 of Control of Narcotic Substances Act, 1997, applicability  of  S.  103,  Cr.P.C. had been excluded and non-inclusion of any private witness was not a serious defect to vitiate the conviction—Evidence of Police Officials would be competent and could not be discarded, only for the reason that they were Police Officials—Police Officials had furnished straight-forward and confidence inspiring evidence and there was nothing on record to show that they deposed against the accused maliciously or out of any animus—Appeal was dismissed in circumstances.

2019  PCrLJ  1133   KARACHI-HIGH-COURT-SINDH

Mst. MARVI VS State

2. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that 20-kilograms charas in shape of slabs was recovered from the vehicle of the accused persons—Record showed that the alleged incident took place on the relevant date and time at highway, which as busy road for traffic and traffic were available at the time of incident, shops were over there and it was evening time—Despite the said fact, complainant, who was also Investigating Officer of the case did not associate any independent person from the locality to witness the arrest and recovery proceedings—Provisions of S. 103, Cr.P.C. though were not attracted to the cases of personal search of the accused, however, where alleged recovery was made on road side, which was meant for heavy traffic and shops were available there as in the present case, omission to secure independent mashirs, particularly, in case of a snap checking could not be brushed aside lightly by the court—Investigating Officer of the police or such other force, under S. 25 of Control of Narcotic Substance Act, 1997, was not authorised to exclude independent witnesses and could not do away with principle of producing the best available evidence—No specific bar existed under the law against the complainant who was also Investigating Officer of the case, but being the complainant, it could not be expected that as an Investigating Officer he would collect any material which go against the prosecution and give benefit to the accused—Evidence of such officer, therefore, was a weak piece of evidence and for sustaining a conviction it would require independent corroboration which lacked in the present case—False implication of the accused persons could not be ruled out due to non-association of independent witness as mashir in the present case—Record showed that the evidence of the prosecution witnesses was contradictory to each other on material particulars of the case—Description of case property had not been mentioned in the memo of arrest and recovery, therefore tampering in the case property under the circumstances of the case could not be ruled out—Memo of arrest and recovery was prepared on 2.6.2015 whereas case property was received by Chemical Examiner on 4.6.2015 for examination after the delay of two days—Case property was retained by whom during the intervening period had not been explained by the prosecution—No official from the Forensic Science Laboratory had been examined to corroborate the case of prosecution, therefore no reliance could safely be placed on chemical report for conviction of accused on the basis of contradictory evidence—Accused had claimed that she had lodged FIR under Ss. 392, 452 & 506(b), P.P.C. against complainant and mashir of the present case—Co-accused had claimed enmity against complainant party  on  quarrel  of  children,  therefore,  according  to  them  enmity had  been  established  between  them  as  such  complainant  had falsely involved the accused persons in the case—Plea raised by the accused  persons appeared to be more plausible and convincing whereas the stand of the prosecution appeared to be doubtful, in circumstances—Several infirmities were available in the prosecution case, which had created reasonable doubts about the guilt of the accused persons, benefit of which would resolve in their favour—Appeal was allowed and accused persons were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

2019  PCrLJ  622   KARACHI-HIGH-COURT-SINDH

Sheikh RIAZUDDIN VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)—Seizure of narcotics—Appreciation of evidence—Chemical analysis—Delay in sending samples of contraband for analysis—Effect—Record showed that recovered charas was sent to the Chemical Examiner after the delay of three days, while it was to be sent to the Chemical Examiner within seventy two hours of recovery—Defence objected that due to delay, positive report could not be relied upon—If safe reach of narcotics to the Chemical Examiner had been established, the delay would not of any legal consequence—Such rules were directory in nature and same nowhere placed a bar on the Investigating Officer for not sending the sample beyond seventy two hours of the seizure or that such delay would be sufficient to doubt the report on that count alone.

2019  PCrLJ  622   KARACHI-HIGH-COURT-SINDH

Sheikh RIAZUDDIN VS State

Ss. 9(c), 13, 15 & 25—Criminal Procedure Code (V of 1898), S. 103—Possessing, trafficking of narcotics, possessing assets derived from narcotics, aiding, abetting or associating in narcotic offences—Appreciation of evidence—Prosecution case was that 1745-kilograms of charas was recovered on the pointation of accused—Prosecution witnesses were police officials—Defence had alleged that no private witness was associated at the time of recovery, which was violation of provision of S. 103, Cr.P.C.—Validity—Section 25 of Control of Narcotic Substances Act, 1997, had excluded the applicability of S. 103, Cr.P.C. in narcotics cases—Non-inclusion of any private witness was not a serious defect to vitiate the conviction of accused—Appeal against conviction was dismissed in circumstances.

2019  PCrLJ  622   KARACHI-HIGH-COURT-SINDH

Sheikh RIAZUDDIN VS State

Ss. 9(c), 13 & 15—Possessing, trafficking of narcotics, possessing assets derived from narcotics, aiding, abetting or associating in narcotic offences—Appreciation of evidence—Prosecution case was that accused made preparation to smuggle huge quantity of charas to foreign country—Accused was arrested and on his pointation, 58 cartons containing 1745 packets of charas were recovered from the container and on weighing, one packet came to one kilogram, total 1745 kilograms charas, was recovered—Each slab of charas was separated from each carton total 58-slabs and sealed for the purpose of chemical analysis, while remaining were sealed at the spot—One foreigner, who was his partner in the offence and gave him 200,000/- UAE Darham was also arrested on his disclosure—Record showed that accused was arrested in consequence of spy information, who then pointed out the specific container, led the police party to such sealed container—Seal was broken in presence of mashirs and cartons covered with plastic bags were found therein—Said huge quantity of charas was ready for smuggling by the accused to foreign country—Said circumstances were sufficient to conclude that the accused was in active knowledge least to have dealt with such attempt to export such huge quantity of narcotic; in such view of the matter, contention of defence that accused had no knowledge of the availability of charas in the consignment was untenable—Record revealed that prosecution witnesses remained consistent in respect of time, place and mode of recovery, despite lengthy cross-examination—Accused retracted from confessional statement, recorded under S. 164, Cr.P.C.; despite its retraction, such confession was a corroborative piece of evidence—Chemical analysis report regarding charas was sufficient to prove that the substance recovered from the accused could be used to cause intoxication—Recovery at pointation of the accused prima facie had established the offence, hence, accused was to prove the contrary—In the present case, though, the Investigating Officer and other prosecution witnesses were employees of Anti-Narcotics Force but they had no animosity or rancour against the accused to plant such a huge quantity of narcotic material upon him—Absence of the enmity or any valid reason for false involvement would be a circumstance tilting the case against the accused—Circumstances established that prosecution had succeeded to bring the guilt of accused beyond any doubt—Appeal was dismissed in circumstances.

2019  PCrLJ  622   KARACHI-HIGH-COURT-SINDH

Sheikh RIAZUDDIN VS State

Ss. 9(c), 13 & 15—Possessing, trafficking of narcotics, possessing assets derived from narcotics, aiding, abetting or associating in narcotic offences—Appreciation of evidence—Acquittal of accused on technicalities—Scope—Transportation or possession of narcotics—Technicalities of procedural nature or otherwise were to be overlooked in the larger interest of the country—Approach of the court should be dynamic and pragmatic, in approaching true facts of the case and drawing correct and rational inference and conclusions, while deciding such cases.

2019  PCrLJ  622   KARACHI-HIGH-COURT-SINDH

Sheikh RIAZUDDIN VS State

Ss. 9(c), 13 & 15—Possessing, trafficking of narcotics, possessing assets derived from narcotics, aiding, abetting or associating in narcotic offences—Appreciation of evidence—Guilt, proof of—Record showed that huge quantity of narcotic was recovered on information, provided by the accused while in custody—Control of Narcotic Substances Act, 1997 was comprehensive in nature and covered all the acts and omissions whereby one physically possessing or had been in control of narcotics for any purpose, including import or export—Question of guilt would not be dependent upon establishing physical possession— If the circumstances established active control or knowledge or that accused otherwise dealt with such recovered  narcotics, would be sufficient proof so as to recognize discharge of burden thereby burdening the accused to prove the contrary.

2019  PCrLJ  622   KARACHI-HIGH-COURT-SINDH

Sheikh RIAZUDDIN VS State

Ss. 9(c) & 29—Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120—Possession of narcotics—Presumption—Onus to prove—If prosecution had prima facie proved recovery from or at pointation of accused, presumption would be that the accused was guilty unless the accused proved that he was not in possession of such drugs—Burden of proof, in such circumstances, would be upon the accused to establish his innocence and absolve himself from the allegations of recovery of substances, while the prosecution had only to show by evidence that the accused was in physical custody or directly concerned with recovered narcotic substance.

2019  MLD  1743   KARACHI-HIGH-COURT-SINDH

MUHAMMAD JABIR alias VIKI VS State

1. 9(c)—Possession of narcotic drugs—Safe custody— Prosecution is duty bound to establish the safe custody of narcotics through credible evidence.

2019  MLD  1743   KARACHI-HIGH-COURT-SINDH

MUHAMMAD JABIR alias VIKI VS State

2016. 9(c)—Possession of narcotic drugs—Appreciation of evidence—Non-association of private witness—Non-sealing of case property on the spot—Effect—Safe custody and transmission—Scope—Prosecution case was that Police on receiving spy information apprehended the accused with hashish (charas)—Validity—Incident took place at a populous surroundings but no effort was made by the police to arrange private witness—Case property was not sealed on the spot which fortified the assumption that ‘Memo of Arrest and Recovery’ was not prepared on the spot—Offence took place on 30/07/2016 but the case property was received in the office of Chemical Analyzer on 03/08/2016—Date of letter through which case property was handed over to the bearer was blank in the report of chemical analyzer—No date was mentioned in the letter through which the property was sent to the chemical analyzer—Bearer was not examined to clarify as to in whose custody the case property was from 30/07/2016 to 03/08/2016. WHC (Writing Head Constable) of the police station was not examined to verify that the property remained in the police station—Prosecution failed to establish the case against accused, as such he was acquitted of the charge, in circumstances.

2019  MLD  1713   KARACHI-HIGH-COURT-SINDH

RAJAB ALI VS State

1. 9(c)—Constitution of Pakistan, Art. 10-A—Possessing and trafficking of narcotics—Right of accused to be defended by a counsel—Fair trial—Counsel of accused was absent at the time of examination-in-chief of a prosecution witness—Article 10-A, of the Constitution had provided the right of a fair trial and due process to accused which included his right to be represented by a counsel of his own choice or at least a counsel in order to protect his rights especially when the offence was of a capital nature—Most accused persons were laymen who had little, if any, knowledge of the law and in the absence of defense counsel they were unable to adequately defend themselves—For example, during the examination-in-chief of a prosecution witness the accused would not know which questions he could object to and which documents he could oppose being exhibited—Such inability on accused’s part would lead to an unfair trial—Onus was on the Trial Court to ensure that an accused, in a trial of an offence carrying capital sentence, was represented by defence counsel throughout even if it was pauper counsel appointed by the court at State expense in order to protect his rights and ensure that he received a fair trial—Case was remanded to the Trial Court for recording the evidence afresh—Appeal was disposed of, accordingly.

2019  MLD  1075   KARACHI-HIGH-COURT-SINDH

ABDUL GHANI VS State

1. 9(c)—Possessing of narcotics—Appreciation of evidence—Prosecution case was that on spy information that accused persons were indulged in running a narcotic den, the complainant along with informer reached at the pointed place and apprehended the accused persons—On their personal search, 5400-grams charas, 420-grams opium and three bottle liquor were recovered—On their pointation, 71-kilogram charas in two fiber drums were recovered from the kachizameen, 52-kilograms charas from a car belonging to accused and 170 bottles of desi liquor from the cart owned by accused persons were recovered—Samples from each and every packet were taken for chemical analysis—All the material witnesses had fully corroborated the version of each other more particularly the eye-witnesses—No contradictions existed regarding receiving spy information, conducting raid and recovery of the narcotics from the personal possession as well as on the pointation of the accused persons—Witnesses were subjected to lengthy cross-examination but their evidence remained un-shattered—Report of the Chemical Analyst was in positive and the defence had not disputed the nature of substance nor challenged the authenticity of the report of the Chemical Analyst—Neither the accused persons had brought on record any substantive material to show that the report of the Chemical Analyst was the result of tampering or manipulation nor any illegality or irregularity had been found in the test performance report of the Chemical Analyst—Defence had objected that the Investigating Officer acted as complainant, but Police Officer was not legally prohibited to be a complainant, if he was a witness to the commission of offence and also to be the Investigating Officer so long as it did not in any manner cause prejudice to the accused—Circumstances established that prosecution had succeeded to prove the guilt of accused—Appeal was dismissed being devoid of any merit.

2019  MLD  1075   KARACHI-HIGH-COURT-SINDH

ABDUL GHANI VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 & 6—Seizure of narcotics—Appreciation of evidence—Chemical analysis—Non-mentioning of quantity of consumed narcotics for testing and unconsumed narcotics in report—Effect—Defence had objected that the quantity of narcotic substance consumed for testing and the quantity left un-consumed had not been mentioned in the Chemical Examiner Report after testing the same—Record showed that the un-consumed case property was de-sealed at the time of recording evidence of prosecution witnesses and re-sealed in the presence of accused persons—None of them had raised objection on its production in evidence nor put any question from the witnesses in respect of Chemical Examiner’s report—Reason had been given in the Chemical Examiner’s report, but due to oversight, the quantity consumed while testing the narcotic substance and quantity of un-consumed narcotic substance had not been mentioned by the Chemical Examiner—Record transpired that it had been given full protocol and the examiner had applied complete mechanism as per Rules 5 & 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001—Said Rules were directory and not mandatory, which could not control the substantive provisions of the Control of Narcotic Substances Act, 1997 and to be applied in such a manner that its operation should not frustrate the purpose of the Act under which said Rules were framed—Failure to follow the Rules would not render the search, seizure and arrest under the Act an absolute nullity and non-set and made the entire prosecution case doubtful, except for the consequence provided in the Rules.

2019  MLD  1075   KARACHI-HIGH-COURT-SINDH

ABDUL GHANI VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Possessing of narcotics—Appreciation of evidence—Non-association of private witness—Effect—Prosecution case was that on personal search of accused persons, 5400-grams charas, 420-grams opium and three bottle liquor were recovered—On their pointation, 71-kilogram charas in two fiber drums were recovered from the kachizameen, 52-kilograms charas from a car belonging to accused and 170 bottles of desi liquor from the cart owned by accused persons were recovered—Prosecution witnesses were police officials—Defence had alleged that no private witness was associated at the time of recovery, which was violation of provision of S. 103, Cr.P.C.—Validity—Section 25 of Control of Narcotic Substances Act, 1997, excluded the applicability of S.103, Cr.P.C.—Appeal against conviction was dismissed in circumstances.

2019  MLD  1021   KARACHI-HIGH-COURT-SINDH

NASIR RAJPOOT VS State

12. 9(b)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that on spy information, accused was arrested at road and 250-grams charas was recovered from his possession—Record showed that no effort was made by the complainant to call independent persons of the locality to witness the recovery proceedings—Record transpired that there were material contradictions in the evidence of prosecution witnesses with regard to the route adopted by the Police Officials for the purpose of patrolling so also affixation of the seals upon the parcel—No reliance, in circumstances, could be placed upon the evidence of the Police Officials without independent corroboration—Allegedly, charas was kept in the Malkhana from 12.8.2016 to 17.8.2016—Safe custody of the charas during said period had not been established—Charas was allegedly dispatched to the Chemical Examiner through Police Constable but safe transit had not been established through said Police Constable as he had not been examined—Positive report of Chemical Examiner, in circumstances, would not improve the case of prosecution—Circumstances established that prosecution had failed to establish its case against the accused beyond shadow of doubt, benefit of which would be extended to the accused—Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court.

2019  MLD  962   KARACHI-HIGH-COURT-SINDH

GADA ALI ABRO VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic substance—Appreciation of evidence—Police officials as sole recovery witnesses—Competence—Principles—Prosecution case was that 383 kilograms and 900 grams charas in different packets were recovered from the possession and pointation of accused—Record transpired that case of prosecution rested upon the evidence of complainant and mashir, supported with the positive report of Chemical Analyzer—Both the witnesses had given full account of arrest of accused from the pointed place and recovery of charas and had supported fully the contents of FIR and memo of arrest and recovery as well as corroborated the evidence of each other—Report of Chemical Analyzer showed that total 350 khaki paper envelops, each bearing one seal, were received for analysis—All the seals were intact, which after the analysis declared as charas—Said witnesses had identified the accused and case property to be the same present/available before the Trial Court at the time of recording their evidence and, during their lengthy cross-examination, defence had failed to shatter the truthfulness of their evidence thus their testimony remained unshaken—Defence had alleged that no witness from the locality was associated to witness the recovery, but S. 25 of Control of Narcotic Substances Act, 1997, had excluded the provisions of S. 103, Cr.P.C.—Neither the alleged recovery of the charas could be held as doubtful due to non-association of any person of the locality to witness the search or recovery nor the deposition of witnesses lost its evidentiary value merely on the grounds that the witnesses were officials of Anti Narcotics Force—Accused had failed to point out any animosity or ulterior motive on the part of complainant for his false implication and foisting upon him the huge quantity of charas—Mere assertion of accused that he was involved falsely in the case due to political enmity was of no consequence being an afterthought—Such defence plea had neither been suggested to the prosecution witnesses during their cross-examination nor did even the accused stated so in his statement recorded under S. 342, Cr.P.C.—Defence witnesses had not uttered even a single word regarding any such political rivalry—Defence witness had stated that the accused was apprehended by the officials of Anti Narcotics Force, while the other defence witness had stated that some Army Officials arrested the accused—Defence witnesses had contradicted each other on the point of arrest of accused, which led to the inference that in fact none of the defence witnesses was present at the relevant place—Circumstances established that prosecution had succeeded to bring the guilt of accused at home and accused had failed to point out any non-reading of the evidence or any material illegality or serious infirmity committed by the Trial Court while passing impugned judgment—Appeal was dismissed accordingly.

2019  MLD  962   KARACHI-HIGH-COURT-SINDH

GADA ALI ABRO VS State

Ss. 9(c) & 29—Seizure of narcotic—Burden of proof—Section 29 of Control of Narcotic Substances Act, 1997 cast burden upon the accused to establish his innocence absolving him from the allegations of recovered substance—Prosecution had only to show by evidence that accused was in physical custody or directly concerned with recovered narcotic substance.

2019  MLD  954   KARACHI-HIGH-COURT-SINDH

MUHAMMAD IQBAL NAWAZ VS State

Ss. 9(c) & 26—Possessing and trafficking narcotics—Acquittal of accused—Direction to register case against Police Official for making vexatious entry, search, seizure and arrest of accused—Trial court acquitted accused, but directed SHO concerned to register a criminal case against Police Official concerned under S.26 of Control of Narcotic Substances Act, 1997, who was complainant in the case and allegedly recovered narcotic (charas) weighing 250-grams from accused—Validity—Section 26 of Control of Narcotic Substances Act, 1997, could only be invoked where it appeared that seizure and arrest was vexatious and unnecessary and direction for registration of FIR only be exercised when it was established on the record through cogent evidence that the narcotics had been foisted upon the accused and he was falsely implicated in the case, otherwise, in each and every case of acquittal, it would be pressed by the accused to direct the Police Officer for registration of FIR against the complainant (Police official) or to proceed in terms of S. 26 of the Control of Narcotic Substances Act, 1997 against the complainant (police official), which would certainly damage the scheme of law and the Police Officers would disincline to be the complainant in the case—Contradictions in the evidence of prosecution witnesses, which might have occurred due to lapse of time, could not cause punishment of the complainant (police official)—Criminal revision was allowed by setting aside the impugned judgment to the extent of directions issued for registration of FIR against the accused/appellant as well as initiation of departmental proceedings.

2019  MLD  601   KARACHI-HIGH-COURT-SINDH

AREEB AHMED VS State

1. 9(b)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that three persons in suspicious condition going on motorcycle, were stopped by police and on their personal search, 300-grams of charas in a plastic shopper was found in the right hand of one accused; 310-grams of charas in a plastic shopper in the right hand of other accused and 340-grams of charas held by the co-accused—Record failed to evidence as to how the charas was weighed to show accuracy, as neither weighing scale was being carried by the police nor record suggested that the same was borrowed at the spot—Such factor gave serious jolt to the prosecution case as to the recovery of definite measure of charas being carried by three individuals at the same time—Being a daytime incident at a public place failure of prosecution to include private witnesses tarnished its narration—Record transpired that charas was recovered on 3-8-2016 but the same was sent to the Chemical Examiner on 5-8-2016—No evidence was on record to show that charas was kept in safe custody during that period, coupled with the fact that Police Officer who was mandated to take samples for examination was neither included as a witness nor presented before the court—Accused persons had claimed innocence and stated that they were picked up from their houses four days prior to the incident and their custody were handed over to police, which got foisted charas upon them and managed the false case—No findings had been recorded by the Trial Court on said version of the accused persons, which showed lack of application of mind of the trial court—Said facts and circumstances of the case reflected that prosecution case was full of infirmities and lacunas creating serious doubts in a prudent mind—Circumstances established that prosecution had failed to prove its case against the accused persons beyond shadow of doubt, benefit of which would be extended to them—Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court.

2019  MLD  30   KARACHI-HIGH-COURT-SINDH

AYUB MASIH VS State

Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c), 14, 15, 25  & 51—Possession of narcotic drugs, aiding, abetment or association in narcotic offences— Post-arrest bail, refusal of—Complainant raided the house of one petitioner and recovered more than  14 kilograms of charras; on his disclosure;  charas weighing  8 kilograms was recovered from the house of  his neighbour, the other petitioner—Petitioners contended that alleged recovery had been conducted in violation of provision contained under S.103, Cr.P.C—For recovery of contraband more than 1 Kilogram S.9 of Control of Narcotic Substances Act, 1997  provided penalty  of death or imprisonment for life or imprisonment for a term which could extend to 14 years and also fine up to one million rupees—Case of the petitioners, therefore, was hit by the prohibition contained in S.51, Control of Narcotic Substances Act, 1997 —Section 25 of Control of Narcotic Substances Act ,1997 excluded the applicability of S.103, Cr.P.C—Petitioners were  not entitled for the concession of bail  in circumstances.

2019  YLRN  68   KARACHI-HIGH-COURT-SINDH

AMAR AMAN VS State

3. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 14 & 15—Bail, grant of—Case of further inquiry—Delay in conclusion of trial—Knowledge of accused—Proof—Accused was arrested for having ‘Bilty’ (Bill of Lading) seeking release of consignment of leather goods which allegedly contained 3.200 kilograms of heroin—Validity—Accused had only come with ‘Bilty’ (Bill of Lading) and consignment was not handed over to him—Accused was arrested only because he had ‘Bilty’ (Bill of Lading), in which consignment was mentioned as leather jackets—Prima facie it was a case of further inquiry as to whether accused himself was involved in change of consignment from leather jackets into contraband items recovered in said consignment by prosecution before even disclosing to accused—Accused was already behind the bars since 2014 and was not required for investigation—Bail was allowed in circumstances.

2019  YLRN  45   KARACHI-HIGH-COURT-SINDH

SAJJAD VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9—Possession of narcotic substances—Bail, grant of—Further inquiry—Delay in conclusion of trial —Scope—High Court had disposed off the first bail application of the petitioner while passing directions to the Trial Court to conclude the trial in two months but the trial was not concluded in the stipulated period—Validity—Record revealed that the present case was based upon spy information but police did not bother to associate any private person to witness the arrest and recovery proceedings—Case was challaned and the petitioner was no more required for investigation—Whole case of the prosecution was based upon the evidence of the police officials—Evidence of the Police was required to be minutely scrutinized at the time of trial—Case of the petitioner required further probe—Despite directions by the High Court no substantial progress had been made in the trial of the case—Petitioner was behind the bars for the last ten months—If the Trial Court would proceed in the same speed, the trial would not be concluded in near future—Prosecution was unable to give any explanation for non-compliance of the High Court order—Petitioner was, admittedly, previously non-convict and never been involved in similar activities—Allegedly 2200 grams of Charas was recovered from the petitioner and the sentence that could be awarded, in the present case, if established by the prosecution, would be rigorous imprisonment of five years and six months which sentence did not fall within the prohibitory clause of S.497, Cr.P.C—Petitioner was admitted to bail, in circumstances.

2019  YLRN  36   KARACHI-HIGH-COURT-SINDH

ASGHAR ALI VS State

Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25—Recovery of twenty Kilogram Charas—Bail, refusal of—Discretion of Court—Scope—Huge quantity of narcotic was recovered from the accused—Petitioner contended that recovery was not witnessed by persons from public—Validity—No enmity, ill-will or grudge had been alleged against the prosecution witnesses, rather sufficient material had been brought by the prosecution on record including positive report of Chemical Examiner of narcotic substance—Section 25 of Control of Narcotic Substances Act, 1997 excluded the application of S.103, Cr.P.C.—Activities in which the petitioner was involved gave the country bad name in the international community of nations—Record showed that the evidence of the complainant/ Investigating Officer had been adduced and trial would be concluded in near future—Larger interest of the public and State demanded that in case of huge recovery of narcotics, the discretion under S.497, Cr.P.C. was not to be exercised liberally—Generalizations in matters which rested in discretion and an attempt to discover formula of universal application when facts were bound to differ from case to case frustrate the very purpose of conferring discretion—No two cases were alike in facts , therefore, Court was to be allowed a little free play in the joints if the conferment of discretion was to be meaningful—Such discretion, however, must be permitted to remain in the domain of discretion, to be exercised objectively and open to correction by the Higher Courts—Offence, in the present case, was heinous in nature—Court had to observe tentative assessment and deeper appreciation of evidence was not required at bail stage—Bail was refused to the petitioner, in circumstances.

2019  YLRN  35   KARACHI-HIGH-COURT-SINDH

ALI JAN VS State

15. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that 7000-grams charas was recovered from possession of the accused—Person who lodged the FIR had stated that he handed over the charas to police constable on 15.7.2016 but the charas was received in the Office of Chemical Examiner on 18.7.2016—Record was silent as to where the said police constable kept the charas for three days—Accused had raised plea since beginning that he had been involved in the case falsely at the instance of his cousin due to dispute over plot of land—Investigating Officer had failed to examine said cousin of accused in order to ascertain about the said dispute—Accused had alleged that he was arrested from his village on 5.7.2016 and was brought to the police station where he was illegally detained—Petition under S.491, Cr.P.C. was filed for the recovery of accused but of no avail due to shifting of accused to different places—Investigating Officer made no effort to discover the actual facts/truth with regard to application filed under S.491, Cr.P.C.—No evidence was available to show that after the recovery of charas the same was safely kept in Malkhana of police station, its safe transit to the Chemical Examiner had also not been established—Tampering with case property at police station could not be ruled out in the background of application filed under S.491, Cr.P.C.—Chemical Examiner had failed to prepare the report as per protocol as provided in the Rules—Report of the Chemical Examiner though positive was deficient in the eyes of law—Circumstances established that prosecution had failed to establish its case against the accused beyond shadow of doubt—Appeal was allowed and accused was acquitted, in circumstances, by setting aside conviction and sentences recorded by the Trial Court.

2019  YLRN  30   KARACHI-HIGH-COURT-SINDH

SUHAIL alias SHOAIB SHAR VS State

1. 9(c)— Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that on tip of information, accused was apprehended and 5000-grams of hashish (charas) in shape of pieces was recovered from his possession—Record showed that police had beforehand spy information but they did not try to associate a private person to witness the arrest and recovery from the accused; in such situation, proprietary demanded that certain arrangements should have been made to associate some private witnesses before reaching at the reported place—Record transpired that case property was received in the office of the Chemical Analyser by the hand of Police Constable with a delay of one day—Said Police Constable was not examined to clarify as to the case property remained in safe custody during the period of delay—Circumstances established that prosecution had failed to prove its case against the accused beyond shadow of doubt, benefit of which would be extended to the accused person—Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

2019  PCrLJN  153   KARACHI-HIGH-COURT-SINDH

SAJID YAMEEN VS State

Ss. 497 & 164—Qanun-e-Shahadat (10 of 1984), Arts. 38 & 39—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9, 14, 15, 25 & 51—Possession of narcotic substance—Bail, grant of—Further inquiry—Confessional statement of main accused against co-accused—Scope—Expeditious and fair trial, right of—Petitioner contended that said evidence (confession) had no evidentiary value against him as the alleged recovery was effected from the main accused—Record revealed that though amended charge had been framed yet not a single witness had been examined— Progress report submitted by Trial Court with regard to non-examination of prosecution witness was not satisfactory—Petitioner was behind the bars for last more than eleven months but not a single witness had been examined—Trial was not expected to be concluded in near future—Record had not shown that the petitioner was responsible for delay in concluding the trial—Four accused persons, including the petitioner, had been arrested and Trial Court had granted bail to two accused, although, one of said accused was apprehended with the main accused, whereas, petitioner was arrested much after the arrest of main accused and nothing was recovered from his possession, as such, the case of petitioner was on better footing than the case of co-accused, who had been granted bail by the Trial Court—Contention of the petitioner regarding confessional statement of main accused having no evidentiary value could be decided only after recording of evidence of prosecution witness which still had not been recorded—Record showed that the alleged recovery of contraband had not been recovered directly from the petitioner but he was arrested on the basis of statement of the main accused, which tentatively had no basis—No material existed on record, which could show that the petitioner had any concern with the alleged recovery—Question whether the petitioner was liable for the recovery of narcotic from the possession of main accused would be determined by the Trial Court after recording evidence of the parties—Case of the petitioner called for further inquiry as envisaged under S. 497(2), Cr.P.C.—Petitioner was admitted to bail, in circumstances. [Paras. 7, 8, 9 & 10 of the judgment]

2019  PCrLJN  146   KARACHI-HIGH-COURT-SINDH

MUHAMMAD SALEH VS State

Ss. 9(c) & 25—Possession of narcotic substance—Appreciation of evidence—Police officials as sole recovery witnesses—Competence—Principles—Prosecution case was that on spy information, police party signalled to stop the vehicle of accused and on search, fifty packets of charas, each packet weighing 1-kilogram total 50-kilograms, were recovered from the secret cavities of the vehicle driven by accused—Ten grams were separated from each packet for chemical analysis—Record showed that fifty samples separately sealed were received in the office of Forensic Science Laboratory on the following day of the incident and report of all the fifty samples was positive—Complainant had deposed that on receipt of information regarding transportation of charas by the accused persons, accused was driving the car—Co-accused was also seated on the front seat of the car—Ocular testimony of the complainant was subjected to lengthy cross-examination by the defence, but he stuck to his stance regarding arrest of accused persons and recovery of charas from the secret cavities of the car—Mashir/witness had testified to the effect that recovery of charas was made in his presence—Case property including the car were produced before the court—Presence of the accused persons in vehicle wherein the subject contraband charas was being transported by keeping it in the secret cavities was fully established—In the present, case all the witnesses were police witnesses, who were as good as private persons—Statements of the prosecution witnesses, who were Police Officials, were sufficient to prove the recovery of the contraband charas—No enmity, ill will or personal grudge to falsely involve the accused persons in the commission of the offence was proved—Association of private persons as witnesses of recovery was not necessary in the case as the application of S. 103, Cr.P.C. had been specifically excluded in the narcotics cases by virtue of S. 25 of the Act—Circumstances established that the testimony of prosecution witnesses examined by the prosecution was inspiring confidence—No material discrepancies or contradictions in the statements of witnesses were found rather they were consistent to each other on all the material aspects of the case—Appeal was dismissed accordingly. [Paras. 12, 15 & 16 of the judgment]

2019  PCrLJN  146   KARACHI-HIGH-COURT-SINDH

MUHAMMAD SALEH VS State

Ss. 9(c) & 29—Possession of narcotic substance—Presumption of possessing illicit articles—Scope—Under S. 29 of the Control of Narcotic Substances Act, 1997, presumption of recovery of contraband items was always deemed to be from the accused, who was to prove the contrary. [Para. 13 of the judgment]

2019  PCrLJN  140   KARACHI-HIGH-COURT-SINDH

SAJJAD VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9—Possession of one thousand and twenty grams of Charas—Bail, grant of—Prosecution contended that the petitioner was involved in number of other criminal cases—Scope—Record revealed that petitioner was behinds the bars for almost seven months but no witness had been examined in the present case—Case of the prosecution was based upon the evidence of police officials, therefore, their evidence was required to be thoroughly scrutinized at the time of trial—Whole case of the prosecution being based upon evidence of police officials, therefore, there was no apprehension of tampering with prosecution evidence at the hands of the petitioner—Case of the petitioner, did not fall within the prohibitory clause of S. 497, Cr.P.C.—Nothing was on record that the petitioner was a previous convict in such like cases—Case of the petitioner called for further inquiry as envisaged under S. 497(2), Cr.P.C.—Bail was granted to the petitioner , in circumstances. [Paras. 6, 7, 8, 9 & 11 of the judgment]

2019  PCrLJN  134   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ASHRAF VS State

1. 497—Constitution of Pakistan, Art. 9—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of more than two kilograms of Charas—Bail, grant of—-Complainant also acting as Investigating Officer—Non-association of private witness—Mala fide of the police—Effect—Raiding police party in spite of beforehand information, did not try to associate a private witness—Recovery was made from a populated area but no effort was made by the police to associate any person from the locality to become witness of the ‘memo of arrest and recovery’—Report of Chemical Examiner was not on record—Without examining the Chemical Examiner’s Report, the petitioner could not be kept behind the bars for an indefinite period—Record showed that prior to lodging of FIR, petitioner had moved application under S. 491, Cr.P.C. before Sessions Court against the complainant and other police officials for the abduction of petitioner’s son, as such, seemingly due to filing of said case, the complainant could have involved the petitioner in the present case—First Information Report did not show that as to from where the police brought the digital scale and what type of digital scale, the police used for weighing the alleged recovered contraband item—All the prosecution witnesses were police officials, so there was no chance of the petitioner tampering with the evidence—Petitioner had already spent more than one and half month behind bars—Charge had not been framed against the petitioner—Case had been challaned, the petitioner was no more required for investigation and, admittedly the case of prosecution based upon the evidence of police officials, therefore, no question would arise for tampering with the evidence at the hands of petitioner—Petitioner was not previously convicted or had been arrested in a case of similar nature in past—Investigation of the case could have been entrusted to some other police officer, so that nobody could raise any finger on such evidence—Trial Court was to determine as to whether investigation carried out by the complainant, who himself had acted as investigating Officer of the case, could safely be relied upon or otherwise—Bail was granted to the petitioner, in circumstances. [Paras. 5, 6, 7 & 8 of the judgment]

2019  PCrLJN  131   KARACHI-HIGH-COURT-SINDH

HAZOOR BUX VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9—Possession of five kilograms of Charas—Bail, grant of—Narcotic substance was sent to Laboratory and positive report was obtained within twenty four hours—Effect—No private witness was associated—Complainant had also acted as Investigating Officer—Role attributed to the petitioner was somewhat of a middle man—Petitioner, a farmer by profession, contended that he had no prior crime history and had been falsely implicated on the behest of his landlord—Record revealed that, on information, a team was constituted, which left the police station vide relevant departure entry, however, neither any vehicle number was mentioned nor that said team had left with the investigation and weighing kit—Notwithstanding that the raiding party knew that the petitioner would hand over the consignment to some third person, the team did not wait for the petitioner to hand over the contraband to that buyer and arrested him—If the raiding party would have waited for the transaction to be completed, so that no room for imagination would have been left—Consignment of narcotic substance was received by the petitioner from some one else—Said person did not even appear in Column No.2 of the challan, which created further doubts in a prudent mind—Entire transaction took place in a thickly populated area, but not a single private person was associated as mashir—First Information Report showed that Rs. 1000/ and CNIC were recovered from the possession of the petitioner, however, said recoveries were not mentioned anywhere in the challan—Speed with which charas was sent to Laboratory and positive report was obtained within twenty four hours, was clearly unbelievable as it usually took weeks to get said procedure completed—Case of prosecution having been based upon the evidence of police officials, no question arose for tampering with their evidence at the hands of petitioner—Complainant had also acted, as Investigating Officer for the safe administration of justice, he should have entrusted the investigation to some other police officers—Court would rather need to be satisfied beyond reasonable doubts that the story invented by the prosecution appealed to logic and whether prosecution had provided enough push for the story to have lift off the gravitational pull—Scales could be tilted in favour of the accused anytime, if prosecution’s story failed to appear plausible—Prosecution had tentatively failed to connect the petitioner with the present offence—Petitioner was admitted to bail, in circumstances. [Paras. 5, 6, 7 & 8 of the judgment]

2019  PCrLJN  112   KARACHI-HIGH-COURT-SINDH

JAVED VS State

5. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that five packets containing charas were recovered from each of accused and twenty five packets of charas wrapped in plastic paper were recovered from the vehicle of accused—Charas recovered from each accused was weighed and found to be five kilograms, whereas the charas recovered from the vehicle was also weighed and found to be twenty five kilograms—Out of the contraband item, recovered from each accused, 100-grams were separated, whereas from the contraband item secured from the vehicle, one kilogram charas was separated, for sending the same to the Chemical Examiner for analysis and report—Record showed that police party arrested the accused persons from a thickly populated area but the police did not associate any independent person of the locality to witness the recovery proceedings—Nothing on record that the complainant had attempted to call any private person to act as mashir—In the present case, said aspect was important because one of the accused persons had raised the defence that he had been falsely implicated in the case due to enmity—Defence had relied on a constitution petition which was filed four months before the incident against the police for harassment and as such independent corroboration of the police version of the event was important to ensure that it could be safely relied upon—Complainant was also the Investigating Officer in the case, which though not unlawful, created a further measure of suspicion when the accused persons had claimed false implication on account of enmity—Charas was recovered on 5.12.2016 and samples were sent to the Chemical Examiner on 9.12.2016 after an unexplained delay of four days when the law required such samples to be sent for chemical analysis within three days of recovery—Such delay was though not fatal as the Rules were directory in nature and not mandatory, however, such non-compliance gave rise to further suspicion when prosecution had accepted that the chemical reports were managed by one of the prosecution witnesses during his cross-examination—Record transpired that the incharge of the Malkhana had not been examined and the Police Constable who delivered the samples to the Chemical Examiner had not been examined as to its safe custody—Circumstances suggested that there was a possibility that the narcotic, during the time it was recovered from the accused and was sent for chemical analysis might have not been kept in safe custody and might have been tampered with—Such a positive chemical report was of no assistance to the prosecution—Circumstances established that prosecution had failed to prove its case against the accused beyond shadow of doubt, benefit of which would be extended to the accused—Appeal was allowed and accused were acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court.

2019  PCrLJN  99   KARACHI-HIGH-COURT-SINDH

ABDUL RASHEED VS State

Ss. 9(c), 25 & 29—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic substances— Appreciation of evidence— Prosecution case was that 420-kilograms of charas and 14-kilograms of opium were recovered from the tractor-trolley driven by accused—Record showed that the prosecution, in order to substantiate the charge, examined four witnesses—Said witnesses had implicated the accused to have been apprehended on/at day, time and place as mentioned in the FIR being in possession of charas and opium—Evidence of said witnesses in respect of arrest and recovery of charas was consistent and confidence inspiring—No material contradictions appeared in the deposition of witnesses to render the prosecution case doubtful—Admittedly, none of the prosecution witnesses had any enmity with the accused—Defence had objected that no private person was associated as mashir, but S. 25 of the Control of Narcotic Substances Act, 1997 specifically excluded the application of S. 103, Cr.P.C.—Case property was sent to Chemical Examiner on the third day of the alleged recovery without any inordinate delay and it was not the case of the accused that the case property was tampered with while lying in the Malkhana—Once the prosecution, prima facie, established its case then under S. 29 of the Control of Narcotic Substances Act, 1997 burden would be shifted upon the accused to prove the contrary—In the present case, the accused had failed to do so—Circumstances established that the prosecution had succeeded in establishing its case beyond any shadow of doubt—Appeal was dismissed accordingly.

2019  PCrLJN  98   KARACHI-HIGH-COURT-SINDH

QAMAR MEHMOOD VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 14, 15 & 51—Possession of twenty Kilograms of heroin—Offence against society—Bail, refusal of—Reasonable grounds—Scope—Previous conviction—Effect—Allegation against the petitioner was that he was going to smuggle huge quantity of heroin abroad by concealing the same in tyres of tractors lying in container—Validity—While exercising jurisdiction under S. 497, Cr.P.C. the courts were not supposed to dive deep into merits of the case but to determine of existence or non-existence of reasonable grounds towards link of the accused with the commission of offence or otherwise which could legally be made only on the basis of tentative assessment—High Court observed that existence or non-existence of reasonable grounds would never mean stamping one with tag of innocence or guilt but was meant to maintain a balance between liberty of one pending determination of his guilt and likely possibility of harmful effects in releasing a person charged with offence falling within the category of S. 497(1), Cr.P.C.—Recovery of twenty Kilograms of heroin, in the present case, which was allegedly kept by the petitioner in his godown and dispatched the same from Lahore to Karachi; evidence of godown owner, clearing agent and drivers showed the involvement of the petitioner with the commission of crime—Petitioner was charged with an offence which squarely fell within the meaning of offence against society which alone could be the reason to deny him bail—Provision of S. 51, Control of Narcotic Substances Act, 1997 was included for the same reason, thus placing a bar in granting bail in such like offences—Petitioner was also a previous convict on similar charge (possessing of two Kilogram of heroin) which also created a circumstance justifying to deny bail to the petitioner who, otherwise, was charged with such an offence—Bail was refused to the petitioner, in circumstances.

2019  PCrLJN  62   KARACHI-HIGH-COURT-SINDH

ABDUL REHMAN VS State

Ss. 9(b) & 25—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic drugs; search to be made in presence of witnesses; delay in dispatch of narcotic drugs for chemical examination—Appreciation of evidence—Benefit of doubt—Appellant was charged for possession of narcotic drug—Complainant and Investigating Officer the same person (Police Official)—Effect—Alleged place of incident was a busy area but no effort was made to pick up an independent person of the locality to witness the arrest and recovery proceedings—Requirement of independent witnesses/mashirs alone was not fatal to the prosecution case; however, where the police had advance spy information that offence was being committed some effort had be made by the police to bring independent witnesses along with them to bolster their case—Complainant and Investigating Officer was the same person and although this was not unlawful but as a matter of propriety and transparency it was preferable if the investigating officer was not the complainant—Alleged narcotic drug was recovered from accused on 15.07.2016, but was sent for chemical examination on 18.07.2016—Little evidence was available on record to show that narcotic drug was kept in safe custody from the time of its recovery until it was received by the chemical examiner—No entry with regard to deposit of narcotic drug in malkhana was produced—Person incharge of malkhana was not examined to prove the safe custody of narcotic drug—Prosecution having failed to prove its case against the accused/appellant, while extending benefit of doubt, appeal was allowed.

2019  PCrLJN  29   KARACHI-HIGH-COURT-SINDH

MUHAMMAD MURAD VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic substance—Appreciation of evidence—Police officials as sole recovery witnesses—Competence—Principles—Prosecution  case  was  that  120  slabs of charas, each slab weighing 1-kilogram, total 120-kilograms, were recovered from the secret cavities of truck, driven by accused—250-grams taken out from each slab were sealed in 120 packets at the spot for samples while remaining charas was sealed separately—Record revealed that the prosecution to bring home the guilt of the accused examined two witnesses and also produced memo of arrest and recovery, extracts of entries of departure and arrival and report of Chemical Examiner—Testimony of both the witnesses was in line with each other—Recovery of 120-kilograms of charas from the secret cavities of the truck used for transportation of the recovered narcotics substance, which was being driven by the accused, had been proved as there were no material contradictions or any other material discrepancy in the prosecution—Said witnesses were competent witnesses like any other independent witnesses and their evidence could not be discarded merely for the reason that they were the Police Officials—Testimony of the said witnesses had been corroborated by the positive report of the Chemical Analyst to whom the entire recovered narcotic substance was promptly sent, which was received by him on the following day—Stance of accused that the police had falsely involved him in the case by planting the recovery of charas from him was untenable as no justification existed on the record to falsely involve the accused in the case involving such huge quantity of narcotic substance—Accused had not produced any evidence in support of his defence plea—In the present case, no animosity or rancour of the Investigating Officer and other witnesses against the accused had been alleged—Circumstances established that prosecution had proved the guilt of the accused beyond shadow of any doubt—Appeal was dismissed accordingly.

2019  PCrLJN  6   KARACHI-HIGH-COURT-SINDH

SHABBIR VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of charas weighing three kilograms—Bail, grant of—Further inquiry—Absconsion—Effect—Allegation against the petitioner/accused  was that,  being chased by the Police party, he threw the polythene bag containing contraband charas  and fled away from the place of occurrence—Validity—Charas in question  had not been recovered from the possession of the petitioner—Only evidence against the petitioner was that his name was disclosed by the co-accused when he (co-accused) was apprehended  by the police—Petitioner was behind the bars and no more required  for the purpose of investigation—Further incarceration of the petitioner was not likely to further the prosecution case—If accused had good case for bail on merits, mere absconsion would not come in way while granting bail—Case of the petitioner called for further inquiry as envisaged under S. 497(2), Cr.P.C.—Petitioner was admitted to bail, in circumstances.

2019  YLR  2082   ISLAMABAD

Mst. MARIAM alias MARIA alias SHAKEEBA VS State

12. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that the accused, who was holding a black colour bag, was apprehended being suspicious and on search of the said bag, total 12.5 kilograms charas packed in 10 packets wrapped in black chaddar was recovered—Sample parcels of 10 grams were prepared from the 10 packets for chemical examination, which later on proved to be charas garda—Record showed that neither the black color bag nor the black colour chaddar had been produced during the trial, which were parts of the recovery memo—One of the witnesses of recovery/Constable in his statement had confirmed that a black colour bag as well as black colour cloth was used, whereas the alleged packets of charas were wrapped in yellow scotch tape which was entirely different—Prosecution was bound to produce the case property allegedly being used in a criminal activity—Non-production of such incriminating piece of evidence, created a serious doubt, benefit of which was to be extended to the accused not as a matter of grace but as a matter of right—Circumstances established that prosecution had failed to prove the recovery of contraband from the accused and as such, accused was entitled for acquittal, especially when the incriminating articles had neither been exhibited by the prosecution nor even produced during the trial—Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

2019  YLR  1282   ISLAMABAD

SAJID ZAMAN VS State

1. 9(c)— Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4—Possession of narcotic substance—Delay in sending sample of narcotic substance to Government Analyst—Appreciation of evidence—Benefit of doubt—Accused was charged for possession of 1020 grams of charas—Plea of accused was that narcotic substance was allegedly recovered from him on 1-12-2014, same was submitted in malkhana on 8-12-2014 and was sent for chemical examination on 17-12-2014—Delay in sending the sample of recovered narcotic substance was stated to be due to non-submission of the required fee in the Bank caused by non-operation of the online system in the Bank—Validity—Admitted lapse on the part of the police/prosecution to have sent the recovered contraband substance for chemical analysis within the period stipulated under the law made the case against the accused as a doubtful one—Delay in sending the recovered narcotic substance for chemical examination was of more than two weeks—Substantial delay had not been adequately explained in the prosecution evidence—Appeal against conviction was allowed, in circumstances accused was acquitted of the charge.

2019  PCrLJ  1176   ISLAMABAD

Mst. JAMILA VS State

4. 9(c)—Criminal Procedure Code (V of 1898), Ss. 364 & 164—Juvenile Justice System Ordinance, (XXII of 2000), S. 11-C—Possession of narcotic—Appreciation of evidence—Statement of accused recorded on oath—Scope—Release of juvenile on probation—Two packets of charas from each accused had been recovered, total weighing 05 Kilograms—Record showed that accused-appellant was a young girl, who had stated to be born on 04.02.2001 and presently she was hardly 19 years old—Accused/girl was arrested on 02.12.2016 as per judicial record—Record reflected that accused was 17 years old at the time of alleged occurrence, but the Trial Court had not considered her juvenility in terms of Juvenile Justice System Ordinance, 2000 and even not referred that aspect, which was the key factor while determining the quantum of punishment—Record transpired that the Trial Court had not made any effort to peruse the certificate of test/analysis of the laboratory of Drugs Control and Traditional Medicines dated 09.01.2017, which referred the person holding four packets nominated in the case as co-accused—No report showed that the sample had ever been taken from the charas recovered from the appellant and the same was sent for the purposes of chemical examination—Trial Court was bound to call the evidence, although the accused confessed her guilt by way of recording confessional statement—Court had to call the evidence to clear its conscience, so that the offence with which accused was charged could be thrashed out by way of evidence—Circumstances established that Trial Court while awarding the sentence to the accused-appellant, who was admittedly a juvenile and earned certain rights under Juvenile Justice System Ordinance, 2000, had not given her due right—Trial Court had passed the conviction in a mechanical manner—Statement of accused-appellant regarding her date of birth as 04.02.2001 as well as admission on the part of Investigation Officer regarding the accused-appellant being juvenile at the time of arrest the special law came into play providing reduction of period of imprisonment in terms of S. 11(c) of the Juvenile Justice System Ordinance, 2000—Entire legal proposition revolved around the illegal oath conducted by the Trial Court while recording her confessional statement, who was juvenile at the time of occurrence—Even the Trial Court had not adopted due measures to conduct the trial in terms of Juvenile Justice System Ordinance, 2000—Said defects were neither curable nor fell within the ambit of irregularities, the appeal was allowed by setting aside the impugned judgment and matter was remanded to the Trial Court to decide it afresh.

2019  MLD  1445   ISLAMABAD

Syed KARAM HUSSAIN SHAH VS State

Ss. 9(c)& 15—Possession of narcotic substance, abetment or association in narcotic offences—Appreciation of evidence—Benefit of doubt—Prosecution case was that on spy information, police stopped a vehicle near a petrol station—On search of vehicle, three packets of charas, 1kg each (total 3kg), wrapped in khaki solution tape and momi lifafa was recovered from the bag of accused sitting on front seat of the vehicle, whereupon three samples parcels from the said three packets were prepared—Similarly, the person who was driving the vehicle was co-accused, who disclosed that charas garda had been concealed in front doors of the vehicle and on his disclosure, the front doors were opened and two packets of charas garda each weighing 1- kg (total 2kg) wrapped in khaki solution tape and momi lifafa were got recovered, from which sample of 10 grams was taken from each packet—Investigating Officer, during the course of cross-examination, had acknowledged that marasla did not contain element of colour of vehicle, however he stated that accused driver did not try to accelerate the vehicle when he was stopped by the constables—Said witness made personal search of the accused and he stated that both accused-appellants had disclosed about the charas—Investigating Officer had acknowledged that site plan did not contain the presence of witnesses and on the day of working the petrol station was operational—Said witness had acknowledged that employees of petrol station were called to witness the recovery proceedings, but they refused to become witnesses of narcotics case—Other witness of recovery had narrated the entire story of prosecution, however, he acknowledged during the course of cross-examination that at the time of preparation of parcel, the overwritten date was mentioned and the seal of article was not intact and found broken—On the request of defence counsel, a parcel was de-sealed and on de-sealing three packets wrapped in khaki solution tape were found and it was observed by the Court that three packets had a small cut at the corner from where sample substances were taken out—Said witness had further acknowledged that the substances were present in solid slab shape and not in a powder form—Witness had further acknowledged that seal of other article was also found broken and not intact, therefore, on the request of defence counsel, the parcels were de-sealed, where after recovery witness had acknowledged that two packets were found in same position at the time of recovery other than a corner found cut from where a sample was got separated—Substance was found in a solid slab form and not in a powder form—Said witness had been crossed examined at length, but no material contradiction had been achieved by the accused-appellant’s side—Recovery of contraband i.e. 03 kg of charas in black colour shoulder bag with lock from accused had fully been proved, in circumstances—Black colour shoulder bag, lock of the bag and key of the lock had been produced and identified in the court—If seen in the light of results tendered by the Chemical Examiner, it substantially proved that the recovered contraband was charas garda—Similarly, the other recovery of 02 Kg charas from co-accused was also proved on the basis of testimonies of recovery witnesses as vehicle was produced before the Court along with its registration book—Even otherwise, co-accused was driver of the said vehicle and liability of driver in narcotics cases had to be seen with reference to his necessary knowledge—Driver/accused was having conscious knowledge and control of the said vehicle as he disclosed about the contraband concealed in secret cavities of doors of vehicle, which also made him liable for prosecution—Contraband was concealed in front doors of the vehicle, therefore, onus was upon the accused-appellants to prove in terms of Art. 122 of the Qanun-e-Shahadat, 1984 as to how the contraband was concealed in the car—In the present case, both the accused-appellants had got possession of their own charas, which was separately recovered on their pointation, therefore, it could not be presumed that they both were in joint possession of the total recovered charas i.e. 05 kilogram—No ill-will, mala fide or enmity had been demonstrated against the Anti Narcotic Force authorities—Even otherwise, not a single discrepancy had been noted in the evidence of prosecution witnesses—Samples were sent to the laboratory within proper time, whereby the recovered contraband was proved to be charas garda—Accused-appellants themselves raised no objection in the trial court to open up the remaining contraband, which otherwise was properly exhibited—Prosecution, had successfully proved its case against the accused-appellants—High Court observed that accused-appellants were sentenced by the Trial Court on its lower side, which required enhancement, but at the stage, when accused persons had already served their sentences of 03 years and 02 years rigorous imprisonment, respectively, the sentences could not be enhanced—Appeal was dismissed accordingly.

2019  MLD  1445   ISLAMABAD

Syed KARAM HUSSAIN SHAH VS State

Ss. 9(c) & 15—Possession of narcotic substance, abetment or association in narcotic offences—Appreciation of evidence—Benefit of doubt—Driver of vehicle from where contraband was recovered—Burden of proof—Driver of vehicle, against whom the prosecution had discharged its onus, was to be declared responsible person for transportation of narcotics—Possession could be considered exclusive one and joint with other co-accused—Driver of the vehicle, being incharge of the same, it would be considered that all the articles lying in vehicle were under his control and possession—When accused persons sitting in a vehicle individually led to recovery of contraband, they were to be held equally liable for the total quantity of the recovered contraband—Appeal was dismissed accordingly.

2019  MLD  1445   ISLAMABAD

Syed KARAM HUSSAIN SHAH VS State

Ss. 9(c) & 15—Possession of narcotic substance, abetment or association in narcotic offences—Enhancement of sentence, refusal of—If legal sentence had already been completed and offender had been released, his sentence could not be enhanced.

2019  MLD  1445   ISLAMABAD

Syed KARAM HUSSAIN SHAH VS State

Ss. 9(c) & 32—Possessing and trafficking narcotics—Confiscation of vehicle—Scope—Contraband concealed in secret cavity of vehicle—Said vehicle was to be confiscated in terms of S.32 of the Control of Narcotic Substances Act, 1997, in favour of State.

2019  MLD  393   ISLAMABAD

SULEMAN KHAN VS State

S.9(c)—Recovery of narcotic substance—Appreciation of evidence—Representative sample—Scope—Quantum of sentence—Charas packed in 226 packets, each packet contained 3 or 5 slabs, total weighing 285 kilograms was alleged to be recovered from accused—Samples from one slab each from all packets was taken and sent to Chemical Examiner and the same was declared as narcotic substance—Trial Court convicted the accused and sentenced him to imprisonment for life—Validity—Entire quantity of recovered substance was said to have weighed 285 kilograms but as the samples for chemical examination were not taken from each of the slab contained in 226 packets and as each of the slab was not separately weighed, therefore, it could not be assumed that the entire 285 kilograms of the recovery was narcotic substance—Sample taken from one slab in each of the 226 packets could not be considered to be a ‘representative sample’ of all 3 or 5 slabs contained in each of the 226 packets—Slabs from which samples were not taken could not be considered as narcotic substance as sentence under Control of Narcotic Substances Act, 1997, depended on the quantity of recovered narcotic substance—Quantity of Charas recovered from the possession of accused did not exceed 10 kilograms, therefore, he could not be sentenced to undergo imprisonment for life—Accused had been behind the bars for more than 5½ years—High Court maintained the conviction but reduced to the sentence to one already undergone—Appeal was dismissed accordingly.

2019  YLR  1340   HIGH-COURT-AZAD-KASHMIR

BABER SHAH VS The STATE through Advocate General Azad Jammu and Kashmir, Muzaffarabad

Rr. 4 & 5—Control of Narcotic Substances Act (XXV of 1997), S. 9(b)—Possessing and trafficking of narcotics—Bail, refusal of—Delay in dispatch of sample for test or analysis—Directory provision—Accused persons were charged for possession and selling of ‘charas’—Plea of accused persons was that recovered contraband was not sent for chemical examination on the day it was recovered—Validity—Rules 4 and 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 did not place any bar on investigating officer to send samples beyond seventy two hours of seizure of substance—Such rules were directory and not mandatory and could not control substantive provisions of Control of Narcotic Substances Act, 1997—Rules were to be applied in such a manner that their operation did not frustrate the purpose of Control of Narcotic Substances Act, 1997—Failure to follow said rules did not render seizure of the alleged substance as absolute nullity—Bail was declined.

2019  YLR  1340   HIGH-COURT-AZAD-KASHMIR

BABER SHAH VS The STATE through Advocate General Azad Jammu and Kashmir, Muzaffarabad

Ss. 9(b), 9(c) & 51—Criminal Procedure Code (V of 1898), Ss. 496 & 497—Possessing and trafficking of narcotics—Prohibition on grant of bail—Phrase “fit case for grant of bail”—Bail, refusal of—Accused persons were charged for possessing and selling of 1140 and 1120 grams of ‘charas’ respectively—Plea of the accused persons was that their case fell within the borderline of subsection (b) & (c) of S. 9 of Control of Narcotic Substances Act, 1997—Validity—‘Charas’ recovered from accused persons exceeded one kilogram—Control of Narcotic Substances Act,1997 had enshrined the figure upto one kilogram, which could not be twisted by a court of law—According to S.51, Control of Narcotic Substances Act, 1997 no bail could be granted in respect of offences committed under Control of Narcotic Substances Act, 1997 and provisions of Ss. 496 & 497, Cr.P.C. had been excluded—Elbow room was, however, left at the discretion of the court under subsection (2) of S.51, Control of Narcotic Substances Act, 1997 where statute had laid down that bail should not normally be granted unless court was of the opinion that case was fit for grant of bail—Words “fit case for grant of bail” used in Control of Narcotic Substances Act, 1997 depended on facts of an individual case and required circumstances favourable to accused—Grant of bail was refused.

2019  YLR  1043   HIGH-COURT-AZAD-KASHMIR

AQEEL MAROOF VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b), 9(c) & 32—Possession of narcotic drug—Confiscation of articles connected with narcotics—Bail, grant of—Borderline case—Further inquiry—Non-availability of Chemical Examination Report—Effect—Accused was charged for possession of 1120 grams of charas—Fifty grams of charas was sent for chemical examination but report had not been brought on record—Quantity of charas marginally exceeded the limit between 900 grams to 1500 grams—Case being a borderline case between cls. (b) & (c) of S. 9, Control of Narcotic Substances Act, 1997, therefore, further inquiry was required to determine the guilt of accused—Challan had been submitted but independent evidence to connect the accused with the guilt had not been collected—Accused was ordered to be enlarged on bail.

2019  YLR  1876   Gilgit-Baltistan Chief Court

ABDULLAH VS State

1. 497—Qanun-e-Shahadat (10 of 1984), Art. 40—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of charas weighing four Kilograms— Bail, grant of— Further inquiry—Scope—Police got recovered charas from accused who disclosed that he had bought the same from the petitioner—First Information Report was lodged promptly—Petitioner was not nominated in the FIR and was involved in the offence on the disclosure of the accused from whom the recovery was effected—Question as to whether identification of charas by petitioner, while in police custody, falls within the purview of Art. 40 , Qanun-e-Shahadat, 1984 or not, would be determined by the Trial Court after recording of evidence—Extent of involvement of the petitioner in the crime would be determined by the Trial Court—Such legal as well as factual question had brought the case of the petitioner within the purview of further inquiry as envisaged under S.497(2), Cr.P.C—Bail could not be refused as a measure of advance punishment— Petitioner was admitted to bail, in circumstances.

2019  YLR  698   Gilgit-Baltistan Chief Court

State VS MUZAFAR SHAH

1. 9(b)—Possession of about 800 grams of Charas—Appreciation of evidence—Enhancement of punishment—Trial Court awarded , in different trials, imprisonment for the period which the convicts had already undergone—Accused pleaded guilty—Scope and effect—Contention that lesser punishment was awarded to the convicts despite the fact that they had pleaded guilty—Record reveled that 810 grams of Charas was recovered from the possession of one accused and total 828 grams of Charas was recovered from the possession of the other—Both the accused persons had confessed their guilt and had placed themselves at the mercy of Trial Court as such the Trial Court had rightly awarded lesser punishment—Common practice was that once a person involved in criminal case wanted to plead guilty to the charge levelled against him and placed himself at the mercy of the Court in that eventuality he became a friend of the Court and the Court always took lenient view in respect of his sentence—Trial Court had not committed any illegality or martial irregularity in exercise of its jurisdiction—Trial Court had passed the impugned orders strictly in accordance with law, justice and equity which could not be interfered with by High Court in exercise of its revisional jurisdiction— Criminal revisions were dismissed in circumstances.

2019  PCrLJ  1441   Gilgit-Baltistan Chief Court

SABIR HUSSAIN VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of charas weighing 2700 grams—Bail, grant of—Further inquiry—Recovery of charas ‘Garda’—Scope—Charas ‘Garda’ was not charas—Charas was extracted after baking/chemical process—Quantity of charas in “Garda” varied—Case of petitioner called for further inquiry— Petitioner was admitted to bail, in circumstances.

2019  MLD  1870   Gilgit-Baltistan Chief Court

IFTIKHAR ALAM VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing charas weighing four kilograms—Bail, grant of—Further inquiry—Quantity of samples taken from each packet was not mentioned—Effect—Scope—Four packets of one kilogram each were allegedly recovered from the possession of the petitioner, however, total fifty grams of charas was separated for sending to the Chemical Examiner—Petitioner was caught red handed on a tip-off information and four Kilograms of charas was recovered from his possession in presence of two marginal witnesses of recovery memo, one of them was an independent private witness—Fifty grams of charas was separated from four packets of charas but the prosecution could not reconcile said separated fifty grams of charas—Record did not show as to how much quantity was taken from each packet—If the samples taken would have been forty grams in total then it was easy to presume that ten grams were taken from each packet but taking of fifty grams from four packets was a question which could be answered by the prosecution at the time of trial and had created a doubt—Case of the petitioner called for further inquiry as envisaged under S.497(2), Cr.P.C.—Petitioner was admitted to bail, in circumstances.

2019  MLD  1655   Gilgit-Baltistan Chief Court

State VS MUHAMMAD AKRAM

Ss. 497(5) & 103—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25—Bail, cancellation of—Possession of narcotics—Search to be made in presence of witnesses—Applicability of S. 103, Cr.P.C.—Scope—Anti-Narcotic Force recovered 9500 grams of heroin concealed inside the carpets kept in the godown/basement of a hotel—Heroin was recovered on the pointation of accused—Trial Court granted bail to accused—Validity—Offence under S. 9(c), Control of Narcotic Substances Act, 1997 fell within the ambit of prohibitory clause of S. 497(1), Cr.P.C.—Trial Court while granting bail had observed that Anti-Narcotics Force officials did not record the statements of the employees of the hotel, which was the best evidence available to the prosecution—High Court held that provisions of S. 103, Cr.P.C. did not apply where recovery was not made in pursuance of search of a house but was made elsewhere, for instance on the highways or on the road side or public places like railway station, bus stand, the search of baggage at airport or hotel, etc.—Accused remained in jail for a period of only one and half months whereas he was involved in a heinous crime which entailed capital punishment—Trial Court had wrongly touched the merits of the case—Reasonable grounds existed for believing that accused was prima facie involved in the case which was heinous in nature—Trial Court was not justified in granting bail to the accused—High Court recalled the bail granting order, in circumstances.

2018  SCMR  2039   SUPREME-COURT

The STATE VS IMAM BAKHSH

Rr. 5 & 6—Control of Narcotic Substances Act (XXV of 1997), S. 9—Possession of narcotics—Report of Government Analyst—Safe custody and transmission of samples of the alleged drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory—Chain of custody began with the recovery of the seized drug by the police and included the separation of the representative sample(s) of the seized drug and their dispatch to the Narcotics Testing Laboratory—Said chain of custody, was pivotal, as the entire construct of the Control of Narcotic Substances Act, 1997 and the Control of Narcotic Substances (Government Analysts) Rules, 2001 rested on the report of the Government analyst, which in turn rested on the process of sampling and its safe and secure custody and transmission to the laboratory—Representative samples of the alleged drug must be in safe custody and undergo safe transmission from the stage of recovery till it is received at the Narcotics Testing Laboratory—Prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure—Any break in the chain of custody or lapse in the control of possession of the sample, would cast doubts on the safe custody and safe transmission of the sample(s) and would impair and vitiate the conclusiveness and reliability of the report of the Government Analyst, thus, rendering it incapable of sustaining conviction.

2018  SCMR  2039   SUPREME-COURT

The STATE VS IMAM BAKHSH

1. 3—Control of Narcotic Substances Act (XXV of 1997), S. 9—Possession of narcotic—Narcotic Testing Laboratories—Qualification of Government Analyst—Supreme Court directed that the Federal Government and the respective Provincial Governments shall ensure that the Government analysts in the Narcotics Testing Laboratories were qualified as per R. 3 of the Control of Narcotic Substances (Government Analysts) Rules, 2001(‘the Rules’); that the tests and their protocols were common across the country and as per International guidelines; that the officials of the National and Provincial Narcotics Testing Laboratories shall follow the Rules in the best manner possible so that efficient and meaningful chemical analysis could be achieved, and that in case of failure, disciplinary action shall be taken against the officials, in accordance with law.

2018  SCMR  2039   SUPREME-COURT

The STATE VS IMAM BAKHSH

Rr. 5 & 6—Control of Narcotic Substances Act (XXV of 1997), S. 9—Possession of narcotics—Report of Government Analyst—Rule 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 was directory while R. 6 was mandatory to the extent that the full protocols ought to be mentioned in the report of the Government Analyst—Non-compliance of R. 6, in such context, would render the report of the Government Analyst inconclusive and unreliable.

2018  SCMR  1425   SUPREME-COURT

ABDUL BASIT VS State

1. 9(c)—Possession of narcotic—Reappraisal of evidence—Benefit of doubt—Prosecution alleged that ten kilograms of charas contained in separate packets was recovered from the possession of accused when he was driving a motorcycle and thereafter upon disclosures made by the accused eighty kilograms of charas and 200 kilograms of charas contained in separate packets had been recovered from some other places to which the accused had allegedly led the police party—According to the recovery witnesses/police official produced by the prosecution the last two recoveries did not pertain to the accused and the substance recovered through such recoveries was owned by a co-accused—Complainant/police official as well as one of the recovery witnesses stated that the memorandum of recovery pertaining to the first recovery had not been prepared at the spot but at some subsequent stage and place, which was a serious lapse on the part of the investigating agency and the recovery officer and because of such lapse there was no guarantee that before preparation of the memorandum of recovery vis-a-vis the first recovery the substance recovered had not been tampered or interpolated with or that the weight of the substance recovered was the same as alleged—In view of such infirmities in the case of the prosecution the benefit of doubt had to be extended to the accused—Conviction and sentence of the accused recorded and upheld by the courts below were set aside and he was acquitted of the charge by extending the benefit of doubt to him—Appeal was allowed accordingly.

2018  PLD  823   SUPREME-COURT

MUHAMMAD ADNAN VS State

1. 9(c)—Juvenile Justice System Ordinance (XXII of 2000), Preamble—Possession and trafficking of narcotics—Reappraisal of evidence—Juvenile accused treated as an adult offender—Unreliable prosecution witnesses—Accused, who was 12 years of age at the time of the alleged offence, was driving a motorcycle rickshaw, from wherein a huge quantity of charas and heroin was recovered—Trial Court convicted the accused under S.9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to life imprisonment—Admittedly, the accused was not even a teenager when the narcotic drugs were seized from the rickshaw—Questions were whether a child of such tender age could be the owner or deemed to be the owner of the huge quantity of narcotic drugs which had been seized; whether he could be the owner of the rickshaw; whether it could be accepted that he was driving the rickshaw; and whether he had the requisite understanding to know what he was doing—None of the said questions were investigated by the police—Trial Court was a Juvenile Court and as such was required to ensure that the interest of the child whose trial it was conducting was fully protected, however, it did not formulate the said questions as “points for determination” nor considered them—Trial Court treated the accused as an adult, without considering that he was a child of tender years, and presumed that he had full capacity and understanding—High Court perpetuated the error, and the Judges who heard the appeal also effectively treated the accused as an adult offender—Police arrested the accused at a picket, but he did not try to run away—Narcotics were recovered in the presence of two witnesses—One of the said witnesses denied his signature on the recovery memo, while the other disowned any knowledge of the recovery exhibit, therefore he was declared hostile—Prosecution did not seek to have their signatures sent for forensic determination—Police Inspector who had set up the picket and apprehended the accused was the complainant of the case—Complainant admitted in his cross-examination that he made no attempt to determine the ownership of the rickshaw nor sought its registration book nor wrote to the concerned motor registration authority to determine in whose name it was registered—Case of prosecution, thus, rested on the testimony of three unreliable prosecution witnesses of doubtful integrity—Apparently, it seemed that the policemen were shielding the co-accused whilst arresting and prosecuting a young boy merely because he was the brother of the co-accused—Prosecution had completely failed to establish its case against the accused, let alone having established it beyond reasonable doubt—Conviction and sentence passed by the Trial Court and maintained by the High Court were set aside and accused was acquitted of the charge—Supreme Court directed that trial of juveniles shall be concluded by juvenile courts without delay and appeals against conviction shall be prioritized and expeditiously decided; that Chief Justices of the provinces and of the Islamabad High Court through their respective Registrars shall issue necessary directions to prioritize the hearing of appeals filed by juvenile convicts and in this regard appeals by juvenile convicts shall be so highlighted on the file covers of the appeals; that requisite instructions by the Chief Justices, through their respective Registrars, should also be issued to the juvenile courts within their respective territorial jurisdictions to ensure the expeditious conclusion of trials, and that the juvenile courts shall not entertain routine requests for adjournments and if the case was to be adjourned it must only be in exceptional circumstances—Appeal was allowed accordingly.

2018  YLR  1674   QUETTA-HIGH-COURT-BALOCHISTAN

SAEEDAN BIBI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic drugs—Bail, grant of—Further inquiry—Person who allegedly informed police regarding accused (suspect lady) was not brought as witness—Neither travelling ticket of Bus was taken into possession nor registration number of the bus was mentioned in the FIR—Quantity of contraband and expected quantum of punishment would be taken into account while allowing bail to accused person—Investigation of case had already been finalized and challan had been submitted before Trial Court and thus physical custody of accused was not required for the purpose of investigation—Case of accused fell within the ambit of S. 497(2), Cr.P.C.—Bail was granted accordingly.

2018  PCrLJ  837   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD ALAM VS State

1. 497—Anti-Money Laundering Act (VII of 2010), Ss. 3 & 4—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Bail, grant of—Prohibitory clause of S. 497, Cr.P.C.—Scope—Accused had already been admitted to bail in the connected offence under Control of Narcotic Substances Act, 1997 by Anti-Narcotic Court—Offence under Ss. 3 & 4 of Anti-Money Laundering Act, 2010 not falling under the prohibitory clause of S. 497, Cr.P.C.—Accused was granted bail.

2018  PCrLJ  837   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD ALAM VS State

Ss. 3, 4, 20, 39 & Sched.—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 13, 14 & 15—Possession of 1290 grams of heroin and foreign currency—Predicate offence—Jurisdiction—Scope—Special Court Control of Narcotic Substances admitted accused for bail for offences under Control of Narcotic Substances Act, 1997 but refused bail for offences under Anti Money Laundering Act, 2010—Validity—Section 20 of Anti Money Laundering Act, 2010 envisaged that the Court of Session established under the Criminal Procedure Code, 1898 would, within territorial jurisdiction, exercise jurisdiction to try and adjudicate the offence(s) punishable under the Anti Money Laundering Act, 2010 , however, proviso (a) of S. 20 of the said Act showed that if the predicate offence was triable by any court other than the Court of Session, then the offence of money laundering and all matters connected therewith or incidental thereto would be tried by the Court trying the predicate offence(s)—As the main offence against the accused fell within the ambit of Control of Narcotic Substances Act, 1997, therefore, being predicate offence, the same was triable by the Special Judge, Control of Narcotic Substances—Control of Narcotic Substances Act, 1997 also fell within the meaning of “predicate offences” as mentioned in the Schedule of Anti-Money Laundering Act, 2010—Section 39 of Anti-Money Laundering Act, 2010 had overriding effect and said provision would be in addition to, and not in derogation of, which indicated that where the predicate offence was triable by any Court, the offence of Anti-Money Laundering Act, 2010 would be cognizable by that Court—Court under Control of Narcotic Substances Act, 1997 was competent to adjudicate matter in the present case—Offence under Ss. 3 & 4 of Anti-Money Laundering Act, 2010 not falling within the prohibitory clause of S. 497, Cr.P.C., therefore, the bail was granted to accused.

2018  YLR  2253   PESHAWAR-HIGH-COURT

Mst. SAMINA VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51—Possessing and trafficking narcotics—Bail, grant of—No doubt quantity of charas weighing 7200 grams had been recovered from a T.V. set allegedly owned by accused and offence against accused was non-bailable; but whether accused had conscious knowledge of the charas in question or otherwise would be thrashed out by the Trial Court after recording of evidence—Lady accused was seated in front along side the driver; whereas alleged T.V. was found beneath the rear seat occupied by another passenger—Accused lady had 2/3 years old suckling baby—To keep the accused in jail for an indefinite period was not necessary—Accused was released on bail, in circumstances.

2018  YLR  1803   PESHAWAR-HIGH-COURT

NIAZ WALI VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of four kilograms of narcotic substance—Bail, refusal of—Prohibitory clause of S.497, Cr.P.C.—Accused allegedly alighted from vehicle keeping the bag in his hand wherefrom the recovery had been effected—Accused contended that there was contradiction in the nature of Charas given in FIR and of forensic science laboratory report—When there was prior information regarding the smuggling of narcotic by accused and he alighted from the bus as pointed out by the Spy and four kgs of Charas was recovered from him, prima facie linked the accused with the commission of offence falling within the ambit of prohibitory clause of S.497(1), Cr.P.C—For all practical purposes Charas Garda meant the Charas in a raw form which after undergoing some baking process was turned into Charas Pukhta—Colour of both Charas Garda and Charas Pukhta was either brown, brownish or dark brown depending upon the visual evaluation and description—Charas, in the present case, had been mentioned as brown solid in the report Forensic Science Laboratory which was in the affirmative—Bail of the accused was refused, in the circumstances.

2018  YLR  1775   PESHAWAR-HIGH-COURT

AWAIS ALI VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)— Possession of charas weighing 9600 grams—Bail, grant of—Insufficient evidence—Effect—Scope—Accused was allegedly alighted from vehicle by which he was travelling as passenger—Record revealed that neither the vehicle through which the accused was allegedly trafficking narcotic substance had been taken into possession nor its driver, conductor or any passenger had been cited as witness to the recovery proceedings—In absence of such crucial pieces of evidence, the prosecution would not be able to prove the guilt of accused —Accused had no previous history of involvement in such a case—Accused was admitted to bail, in circumstances.

2018  YLR  1668   PESHAWAR-HIGH-COURT

TARIQ MEHMOOD VS State

70. 9(c)—Possession of narcotic substance—Appreciation of evidence—Prosecution case was that 70.800 kilograms charas Garda, 15.600 kilograms charas Pukhta, 20.400 kilograms opium and one kilogram heroin were recovered from secret cavities of the vehicle of accused persons—Complainant separated samples of 10/10 grams from the recovered contrabands, which were sealed, and the remaining contraband were also sealed in separate sacks—In order to prove charge against the accused, prosecution produced five witnesses including complainant—Record showed that huge quantity of narcotics was recovered by the staff of Anti Narcotics Force, who admittedly, neither had previous acquaintance with the accused persons nor any ill will or grudge for their false implication in the case and substitution for the real culprits—Recovery of the narcotics was not only proved through the testimony of complainant, marginal witness and witnesses to the safe custody of the samples, but also dispatched the samples on the following day of the recovery to the Forensic Science Laboratory—Positive report of the Forensic Science Laboratory, could not be dislodged by mere fact that the prosecution witnesses belonged to the police—No malice was proved against the police, which was not alleged in the present case—Prosecution had proved its case against the accused persons in circumstances—Appeal was dismissed accordingly.

2018  YLR  1668   PESHAWAR-HIGH-COURT

TARIQ MEHMOOD VS State

Ss. 9(c) & 29—Seizure of narcotic—Burden of proof—Prosecution case was that 70.800 kilograms charas Garda, 15.600 kilograms charas Pukhta, 20.400 kilograms opium and one kilogram heroin were recovered from secret cavities of the vehicle of accused persons—Record showed that accused persons had admitted the presence of the narcotics in the vehicle and recovery of the same while they were present in the vehicle—Presumption would be that accused persons were in possession of illicit articles under S. 29 of the Control of Narcotic Substances Act, 1997, unless the contrary was proved—Accused persons could not discharge burden of proof to the contrary—Prosecution, in circumstances, had proved the charge against the accused persons—Appeal was dismissed accordingly.

2018  YLR  1648   PESHAWAR-HIGH-COURT

IMRAN KHAN VS State

Ss. 9(c) & 29—Possession of narcotic substance—Appreciation of evidence—Sentence, reduction in—Prosecution case was that twenty five packets of Pukhta charas, each packet weighing one kilogram, total twenty five kilograms, were recovered from rear seat and CNG tank of the vehicle driven by accused—Five grams charas as sample was separated from each of twenty five packets of charas and sealed into separate parcel, while remaining charas was sealed separately in another parcel—Vehicle was taken into possession, and accused was arrested—Record revealed that accused had contended that he hired the vehicle for offering “Fateha” in another city—Admission of accused about his presence in the vehicle at the time of recovery of narcotics from the motorcar and his arrest by the police from the said vehicle, would lead to presumption of commission of the offence under S.29 Control of Narcotic Substances Act, 1997—Accused expressed his desire to produce defence evidence, but later-on he expressed his inability to do so, which showed that accused failed to prove his plea of defence that he had hired the car for Fateha—FIR showed recovery of twenty five packets, each containing one kilogram pukhta, charas total twenty five kilograms pukhta charas from space between the rear seat and CNG tank of the motorcar—FIR transpired that samples weighing five grams separated from each of the twenty five packets were sent for chemical analysis—Chemical Examiner furnished opinion with regard to twenty five samples each weighing five grams, in the affirmative—Record showed that each of all the twenty five packets of charas contained thirteen slabs, fixed with each other—Evidence of prosecution showed that samples were separated from each packet and not from each slab in a packet and thus twenty five samples from twenty five packets and not three hundred and twenty five samples from all the slabs in the packets were separated—Said fact would reduce quantity of the narcotics from twenty five kilograms to one hundred and twenty five grams or at the most to seventy seven grams in one slab out of thirteen slabs in a packet of one kilograms, total one thousand nine hundred and twenty five grams, made the accused liable to lesser punishment of imprisonment—While maintaining the conviction, the punishment of imprisonment for life was reduced to the one already undergone, in circumstances—Appeal was disposed of accordingly.

2018  YLR  1528   PESHAWAR-HIGH-COURT

DAULAT KHAN VS State

1. 9(c)—Possession of narcotic substance—Appreciation of evidence—Benefit of doubt—Prosecution case was that complainant/Police Officer had allegedly received complaints about selling of narcotics/charas by the accused; complainant with police constables proceeded to the place of incident and found the accused there—Sixty-grams of charas Garda and 2-kilograms charas Pukhta, were recovered from the accused and amount of Rs. 3000, allegedly earned by the accused by selling charas was also taken into possession—Accused was arrested on the spot—Record showed that neither any complaint was brought on the record, nor statement of any complainant or witness from the general public was recorded to that effect—No test purchase was conducted in order to lend credence to the said version of the prosecution—No warrant under relevant law was obtained by the complainant in-spite of his receiving prior information regarding involvement of the accused in the unsavoury business—Complainant could have procured presence of witnesses from the general public as the reported place of recovery was situated in the midst of populated area—Record showed that complainant and recovery witness were not consistent in their statements before the court—Complainant stated that Rs. 3000/- were recovered from pocket of the accused, while recovery witness stated that Rs. 3000/- were lying in the shopping bag—Parcel containing Rs.3000/- was not produced in the court—Complainant stated that he first prepared the recovery memo and then drafted the murasila, while the recovery witness stated that the complainant first drafted the murasila and then prepared the recovery memo—Contradictions/discrepancies had appeared in the statements of prosecution witnesses with regard to material aspect of the case and it was not safe to rely on such evidence for conviction of the accused—Accused was acquitted in circumstances, by setting aside conviction and sentence recorded by the Trial Court.

2018  YLR  1067   PESHAWAR-HIGH-COURT

IMTIAZ ALI VS State

S.9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)—Seizure of narcotics—Appreciation of evidence—Benefit of doubt—Chemical analysis—Delay in sending samples of contraband for analysis—Effect—Record showed that alleged recovery of contraband was made on 12.8.2015 but the samples were received in the Forensic Science Laboratory for chemical analysis after five days on 17.8.2015—No evidence was available to prove safe custody of the samples from the date of recovery upto their receipt in the Forensic Science Laboratory—Prosecution produced police official/witness in that regard, who stated that he did not remember the date on which the samples were handed over to him—Delay of five days in sending the sample for examination would cast serious doubt about the prosecution case, benefit of which would resolve in favour of accused—Accused was acquitted by setting aside conviction and sentences recorded by Trial Court in circumstances.

2018  YLR  1067   PESHAWAR-HIGH-COURT

IMTIAZ ALI VS State

1. 9(c)—Penal Code (XLV of 1860), Ss. 170, 419, 420, 468 & 471—Possession of narcotics, personating a public servant, cheating by personation, cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating, using as genuine a forged document—Appreciation of evidence—Benefit of doubt—Prosecution case was that a vehicle driven by the accused, was stopped on the main road, taken to the police station, accused was interrogated there and a plastic sack in a carton, tagged on to bonnet of the vehicle above the engine containing ten packets of heroin, weighing one kilogram each, total ten kilograms was recovered—Reportedly, a card of intelligence agency from the pocket of accused was recovered, which was found fake on verification—Record showed that no recovery was made from the motorcar after it was stopped for checking but at the police station in the presence of police officials other than those present with the complainant at the time of stopping of the vehicle, which made the recovery and the case against the accused doubtful—Testimony of marginal witness was not worthy of reliance in view of his own admission that he was not the eye-witness of the occurrence—Absence of independent witnesses from the general public in spite of prior information to the complainant; and non-production of police officials present with the complainant certainly cast doubt on recovery of the contraband from the car at the police station—Covering of considerable distance by the vehicle, generating heat from the engine, would make the recovery more doubtful, for the reason of heroin changing its very nature in the face of so much heat—Nothing was on the record to establish nexus of the accused with the recovered narcotics, as neither evidence was brought on the record to show him either owner of the car or its driver—Accused was acquitted from the charge under S.170 Penal Code, 1860 by the Trial Court—State did not file appeal against the said acquittal, which would not only shake the FIR but also would raise question about case and evidence of the prosecution against the accused—Circumstances established that prosecution had failed to prove recovery of narcotics from the possession of the accused, thus accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

2018  YLR  993   PESHAWAR-HIGH-COURT

KHAN ZEB VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking of narcotics—Bail, grant of—Further inquiry—Accused was neither shown as owner of vehicle in question, nor driving license had been recovered from him at the time of his arrest, when he was allegedly occupying the driving seat—Role assigned to accused was similar to two co-accused, who had already been released on bail—Role of accused would also be subject to further inquiry making accused entitled to the concession of bail—Mere presence of accused on the driving seat would not, prima facie, establish his involvement or his conscious knowledge regarding presence of narcotics in the vehicle in question—Accused was admitted to post arrest bail, in circumstances.

2018  PCrLJ  1125   PESHAWAR-HIGH-COURT

AURANGZEB VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51—Possessing and trafficking narcotics—Bail, refusal of—On pointation of accused tablets containing ingredients falling within the definition of controlled and psychotropic substances, were recovered from cavities of motor car driven by accused—Search of house of accused, led to discovery and recovery of a huge quantity of such tablets—Samples from the recovered tablets had been sent to Forensic Science Laboratory and as per report thereof, said tablets contained ingredients, which fell within the definition of controlled and psychotropic substances—Said drug was used in clinical pain relief, but was also used by drug users—Plea of accused was that Forensic Science Laboratory having not been equipped with the skill and equipment, was not competent to examine recovered tablets and give any opinion—Validity—Any discussion on the competency of Forensic Science Laboratory to examine the samples of the recovered tablets and authenticity or otherwise of its report; in the light of the rules framed under the Control of Narcotic Substances Act, 1997, would amount to deeper appreciation falling in the domain of the Trial Court—Witnesses to the recovery proceedings, who had no ill-will or enmity with accused, had fully supported the stance of the seizing Officer—Accused, were prima facie connected with the commission of offence; punishment of which fell within the prohibitory clause of S.51 of the Control of Narcotic Substances Act, 1997—Petition for bail was dismissed, in circumstances.

2018  PCrLJ  990   PESHAWAR-HIGH-COURT

SHAZIA VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking of narcotics—Bail, grant of—Female accused, who was in jail since 30-1-2018 for the alleged recovery of narcotic, was no more required for investigation—No prospect of commencement of trial in near future existed—No strong reason was found to withhold the concession of bail to accused—Accused, was directed to be released on bail, in circumstances.

2018  PCrLJ  467   PESHAWAR-HIGH-COURT

BACHA KHAN VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic drugs—Bail, grant of—Further inquiry—Present case was that of border line between sub-clause (b) and (c) of S. 9, Control of Narcotic Substances Act, 1997—Punishment was to be awarded for the offence to commensurate with the quantity of recovered contraband, therefore, quantum of punishment would be decided by the Trial Court—Whether accused would be liable to maximum punishment in case of proof of guilt after trial and would fall under the prohibitory clause of S. 497, Cr.P.C. was the question requiring further probe—Bail was granted accordingly.

2018  PCrLJ  440   PESHAWAR-HIGH-COURT

IFTIKHAR AHMAD VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 2(q)—Control of Narcotic Substances (Regulation of Drugs of Abuse, Controlled Chemicals, Equipment and Materials) Rules, 2001, Division II, Schedule V—Possession of narcotic drugs—Recovered contraband under the name of “Acetic Anhydride” fell within the ambit of “manufacture drug” as defined under S. 2(q) of Control of Narcotic Substances Act, 1997, as well as notified in the official gazette and Division II, Schedule V, Control of Narcotic Substances (Regulation of Drugs of Abuse, Controlled Chemicals, Equipment and Materials) Rules, 2001—Possession of recovered chemical “Acetic Anhydride” being a primary substance used for production of heroin was manifest contravention of the provisions of S. 6, Control of Narcotic Substances Act, 1997—Accused was arrested red-handed on the spot and huge quantity of “Acetic Anhydride” was recovered from boot of car which was in his exclusive possession and control—Positive Forensic Science Laboratory report and statements of recovery witness under S. 161, Cr.P.C. had substantiated the version of complainant—Nothing was on record to show any ill-will or enmity of the prosecution witnesses against accused—On tentative assessment of evidence, reasonable grounds existed which prima facie connect accused with commission of offence—Bail was refused accordingly.

2018  PCrLJ  268   PESHAWAR-HIGH-COURT

GHULAM NABI VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic drugs—Bail, grant of—Accused was apprehended with 1100 grams of heroin allegedly recovered from a plastic bag in fold of his shalwar (pant)—Prima facie, weight of heroin was 1000 grams or less if weighed without plastic bag—Case of accused fell within ambit of S. 9(b) of Control of Narcotic Substances Act, 1997— Prosecution case created doubt as to how one could carry a plastic bag of more than one kilogram in fold of his shalwar (pant)—Case of accused had become one of further inquiry falling within purview of S. 497(2), Cr.P.C.—Bail was granted accordingly.

2018  PCrLJ  225   PESHAWAR-HIGH-COURT

ASHIQ ALI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession and trafficking of narcotics—Bail, grant of—Further inquiry—Prosecution case was that while intercepting a passenger vehicle, four packets charas, each weighing one kilogram, totalling four kilograms were recovered from a gas heater lying near the accused-petitioner’s seat— Accused-petitioner claimed its ownership and on cursory interrogation disclosed about concealment of narcotics in it—Record showed that the alleged recovery had not been effected from direct/personal possession of the accused-petitioner rather from a gas heater—In absence of recovery of travelling ticket of the accused-petitioner in the said vehicle, statement of driver, conductor, and any passenger as well as any proof about the ownership of the heater, nexus of the accused-petitioner with the alleged recovered narcotic was yet to be determined after recording evidence—Such circumstances required further probe into the guilt of accused-petitioner—Accused-petitioner was therefore admitted to bail in circumstances.

2018  MLD  1917   PESHAWAR-HIGH-COURT

SIRAJ UD DIN VS State

9. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that 1069 grams of charas and sale proceed of Rs. 9,000/- were recovered from accused—Out of the recovered charas, five grams were separated for chemical analysis while the rest was sealed into separate parcel—Record showed that the recovery of contraband charas was effected in thickly populated area and that too in view of spy information, but all the prosecution witnesses were police officials—Prosecution was bound to associate some private or independent witnesses with the recovery process in the eventuality when the police party in general and the Seizing Officer in particular was aware of the place of occurrence due to prior spy information—In the present case, on seeing the police, accused did not try to decamp from the spot, as he could easily make his presence whisk off from the place of recovery being thickly populated area—No test purchase was obtained from accused—Police official had negated the version of the prosecution to the effect that the alleged contraband charas was recovered from the pocket of “Bunyian” of the accused, whereas it was case of the prosecution that the recovery of charas was effected from the packet wrapped up in the plastic bag held by the accused—Sample of the recovered contraband was sent to the Forensic Science Laboratory for chemical analysis through Police Official—Said person had not been examined by the prosecution in order to further authenticate the veracity of Forensic Science Laboratory Report, which was positive—Prosecution witnesses stated that accused was apprehended at 9.00 a.m. whereas the recovery witness stated that police party had come to the place from where the accused was apprehended at 9.30 a.m., which showed that time of arrest was a mystery—Circumstances established that prosecution had failed to prove its case against the accused beyond any shadow of doubt—Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded against him by the Trial Court.

2018  MLD  1917   PESHAWAR-HIGH-COURT

SIRAJ UD DIN VS State

Ss. 9(c), 21 & 22—Possession of narcotics—Appreciation of evidence—Arrest of accused in violation of S. 21, Control of Narcotic Substances Act, 1997—Effect—Allegation against accused was that 1069-grams of charas was recovered from him—Accused contended that alleged recovery of contraband charas was made by the official of Police Department below the rank of Sub-Inspector in violation of S. 21 of Control of Narcotic Substances Act, 1997—Validity—Record showed that investigation was carried out by Assistant Sub-Inspector, which was violation of Ss.21 & 22 of the Control of Narcotic Substances Act 1997, because an officer below the rank of Sub-Inspector of Police had no authority to search and arrest a person for recovery of narcotics—Said defect was fatal to the prosecution case.

2018  MLD  1740   PESHAWAR-HIGH-COURT

YASEEN ALI VS State

1. 9(c)—Appreciation of evidence—Benefit of doubt—Prosecution relied upon the evidence of five witnesses, who were Police Officials—Noticeable contradictions and discrepancies were found in prosecution case and in the statements of marginal witness of recovery memo. and the complainant on material aspect which had created serious doubts about recovery of contraband from the possession of accused—Prosecution had failed to prove its case against accused beyond any reasonable doubt—Conviction and sentence awarded to accused were set aside extending him benefit of doubt—Accused was acquitted of the charge levelled against him—Role of co-accused was also not distinguishable from accused, on legal as well as factual premises; it would therefore be inappropriate to withhold the benefit of judgment on the ground that co-accused had not filed an appeal against his conviction before the High Court—Co-accused, was acquitted of the charge levelled against him in circumstances.

2018  MLD  1654   PESHAWAR-HIGH-COURT

FAHEEM KHAN VS State

25. 9(c)—Criminal Procedure Code (V of 1898), Ss. 342 & 340(2)—Possession of narcotics—Defence plea—Appreciation of evidence—Benefit of doubt—Prosecution case was that a shopping bag having three packets of charas and weighed 1200-grams each, was found beneath the driver seat of the vehicle driven by the accused—From each packet 10/10 grams were separated for chemical analysis while the remaining narcotic was sealed into separate parcel—Prosecution case was that the occurrence took place on 25.12.2015 whereas the accused was arrested on 24.12.2015, which would disturb the prosecution version—Accused took plea that he was taken by the Anti-Narcotics Force when he parked his motorcar in a patrol station—Accused had exhibited his Mobile Data and Mobile Data of the complainant which negated the version of the prosecution as at the time of arrest accused was not having any mobile with him as stated by prosecution witness—Call Data of the complainant belied the complainant that his mobile was switched off—Location of mobiles did not support the time and place of arrest of the accused—Mobile Data further belied the complainant that he was present at spot for about 3/4 hours—Accused produced Chowkidar of the filling station as witness, who deposed that the vehicle was taken from the filling station by the Anti-Narcotics Force which was being parked by the accused on daily basis—Register of filling station regarding parking of the vehicle was also produced by the said witness—Version of accused appeared to be more plausible and genuine against the version of prosecution—Circumstances established that the case of prosecution squarely rested on the statement of the Anti-Narcotics Force Officials and on the other hand the accused had led defence which created a reasonable doubt in the prosecution case, benefit of which would resolve in favour of accused—Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded against him by the Trial Court.

2018  MLD  1518   PESHAWAR-HIGH-COURT

Mst. GUL MEENA VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of Narcotic Substance weighing 6600 grams—Bail, grant of—Minor son of female accused was also confined in jail along with his mother/accused—Welfare of minor—Scope— Non-submission of challan by the prosecution—Effect —Accused (Lady) was allegedly found with charas having been wrapped around her body with her minor son in her lap—Minor son of accused was also, confined in the unpleasant environment of the prison—Guilt or otherwise of accused would be thrashed out by the Trial Court during the course of recording of evidence with special reference to the direct recovery of huge quantity of Charas weighing 6600 grams, yet welfare of the minor could not be brushed aside especially in view of scarcity of basic facilities in prisons and overall impact on the character building of minor—Challan had not been submitted despite lapse of about two months and accused being a lady her minor son was also languishing in jail—Accused was entitled for the concession of bail, in the circumstances.

2018  MLD  1383   PESHAWAR-HIGH-COURT

IRFAN ULLAH VS State

1. 497(2)—Penal Code (XLV of 1860), Ss.279 & 427—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Rash driving or rioting on a public way, mischief causing damage to the amount of fifty rupees, possessing and trafficking narcotics—Bail, grant of—Further inquiry—Alleged recovery of charas weighing 6224 grams had not been effected from immediate possession of accused, rather it had been recovered from the motorcar driven by co-accused—Name of accused came to surface on disclosure of co-principal accused who had stated that persons who had decamped from the venue of crime were the accused—Whether said admission on the part of co-accused was a fact or accused had been implicated in the case to settle his own personal terms by co-accused, was to be determined by the Trial Court after recording of evidence—Offences under Ss.279 & 427, P.P.C., which entailed punishment for a term which could extend to two years or with fine or both, did not fall within the prohibitory clause of S.497(1), Cr.P.C.—Even otherwise, applicability of Ss.279 & 427, P.P.C. in respect of accused would come under scrutiny during trial as alleged motorcar was driven by co-accused rashly and negligently due to which mischief was caused to the motorcycle owned by the Police department—Investigation in case was complete and case was ready for trial—Accused was no more required to the local Police for further investigation— Case of accused fell within the ambit of further inquiry—Accused was entitled to the concession of bail in circumstances.

2018  MLD  1210   PESHAWAR-HIGH-COURT

HIDAYAT ULLAH VS State

17. 9(c)—Possession of narcotic substance—Appreciation of evidence—Benefit of doubt—Prosecution case was that 7 packets each bundle weighing 1 kilogram, total twenty one kilograms, Garda charas from three doors of the vehicle driven by accused were recovered—Five-grams Charas as samples were separated from each packet—Remaining charas was separately sealed and the accused was arrested—Record showed that present case was registered against the accused on the report of the complainant/Inspector, Excise Department—Despite the fact that the complainant had received prior information about transportation of the narcotic and had sufficient time to inform the local police he did not associate either officials from the police department or witnesses from the general public—Said fact would raise serious question about the alleged recovery of narcotic—Recovery witnesses to the recovery memo. were officials of the Excise Department, therefore, highly interested—Omission on the part of the complainant to hand over samples of the recovered narcotics to the local police along with the vehicle, remaining contraband and the accused cast doubt about result of the Chemical Examiner—Samples were admittedly, sent to the Office of Chemical Examiner, and not to the Forensic Science Laboratory, which was violation of relevant Rules under Control of Narcotic Substances Act, 1997—Record transpired that Inspector Excise and Taxation Department, who took the samples to the Forensic Science Laboratory was not produced—Evidence was not adduced with regard to safe custody of the samples with the Excise Department during the intervening period from the date of recovery (17.09.2012) and receipt of the same in the Office of Chemical Examiner (20.09.2012)—Recovered charas was mentioned as Garda in the FIR and in the case throughout, but the Seizing Officer deposed that contraband were in the shape of slabs—Nothing was available on the record to establish nexus of the accused with the vehicle wherefrom the alleged recovery was made, as he was neither owner nor proved to be the driver of the vehicle—Registration book of the vehicle was though recovered from the vehicle but the owner was not made as accused or prosecution witness—Accused had recorded his statement on oath under S. 340(2), Cr.P.C. about his arrest after a person made good his escape through his house when he was present there—Said fact was established through statements of defence witnesses—Circumstances established that there was nothing on the record to establish recovery of contraband from the possession of the accused, warranting his conviction—Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court

2018  MLD  1088   PESHAWAR-HIGH-COURT

SHOAIB VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking of narcotics—Bail, refusal of—Contention was that in the FIR, charas recovered was ‘garda’, but the Forensic Science Laboratory report showed the same as ‘solid brown’, such report could not be looked into at bail stage—Charas ‘garda’, for all practical purposes, is in semi solid raw form and after going through some baking process, it turns into charas ‘Pukhta’ and that was how the report had shown ‘charas garda’ as ‘brown solid’—Both the tests were in affirmative; in view of recovery of huge quantity of charas weighing 12 Kgs from the personal possession of accused and the report in respect thereof being in affirmative accused was prima facie connected with the commission of the offence, which squarely fell within the prohibitory clause of S.497, Cr.P.C., holding accused disentitled to bail—Petition for bail was dismissed, in circumstances.

2018  MLD  954   PESHAWAR-HIGH-COURT

MIR WAIZ VS State

1. 9(c)—Possession of narcotic substance—Appreciation of evidence—Prosecution case was that 20,700 grams opium was being carried by the accused—Prosecution produced four witnesses in order to prove charge against the accused—Police after arrest of accused had fulfilled all the legal and codal formalities, which were in line with the version taken by the prosecution—Record showed that Investigating Officer, who had conducted the investigation, supported the prosecution case as taken place in the mode and manner—Accused could not justify his presence at the place of occurrence at night time with such a huge quantity of opium—Huge quantity of contraband could not be planted by the police officials, as admittedly the area where the occurrence had taken place was known for such kind of activities—Prosecution case had further been corroborated by the positive report of Forensic Science Laboratory—Though, there was delay in sending the sample to Chemical Examiner, yet the same would be inconsequential as there was no evidence that the samples were tainted—All the witnesses had deposed in line with the prosecution case—Witnesses were subjected to a lengthy cross examination but the defence failed to shatter their testimony—Circumstances established that the judgment of conviction and sentence passed against the accused was based on correct application of evidence on record—Appeal against conviction was dismissed in circumstances.

2018  MLD  954   PESHAWAR-HIGH-COURT

MIR WAIZ VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic substance—Appreciation of S.103, Cr.P.C.—Scope—Defence had contended that no private witness was associated at the time of recovery, which was violation of provision of S. 103, Cr.P.C.—Validity—Application of S. 103, Cr.P.C. had been excluded in such cases in view of S. 25 of Control of Narcotic Substances Act, 1997.

2018  MLD  932   PESHAWAR-HIGH-COURT

Mst. SAIRA KHAN VS State

Ss. 9(c), 33 & 48—Possessing and trafficking of narcotics—Confiscation of vehicle allegedly involved in the commission of offence—Appellant had sought return of the said vehicle claiming that her late husband was last purchaser of the vehicle—Trial Court dismissed the application by holding that partnership of late husband of the appellant with the accused could not be ruled out—Validity—Record showed that there was no rival claimant of the vehicle—Contraband were recovered from the vehicle along with a receipt from Rent-A-Car office, owned by the late husband of the appellant, which showed that accused had hired the vehicle for self driving which fact proved that the vehicle belonged to Rent-A-Car office—Previous owner of the vehicle appeared as court witness and deposed about sale of vehicle by the husband of appellant—Evidence suggested that the cavity from where the narcotic was recovered was not specially created in the vehicle—Declining request of the appellant for return of the vehicle was beyond jurisdiction of the Trial Court—Appeal was allowed accordingly.

2018  MLD  826   PESHAWAR-HIGH-COURT

SHAN MOHAMMAD VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that a vehicle was stopped and three persons were found inside the said vehicle, out of whom, one was sitting on driver seat, one on front seat and one was on the rear seat—Said persons were de-boarded from the vehicle and on search of the vehicle, a plastic sack was recovered from “digi” of the vehicle, from where, ten packets of charas Garda, each weighting 1000-grams, were recovered—On further search, ten packets of charas Garda, each weighing 1000-grams were recovered from secret cavities of both left and right front doors of the vehicle—Two packets weighing 1000-grams each of opium were recovered underneath the driver seat—Complainant separated 5/5 grams from each packet of charas Garda and opium for chemical analysis—All the accused were arrested on the spot—Record showed that complainant despite receiving information 2½ hours before the alleged recovery, did not associate any independent witness—Samples separated from the bulk were received in the Forensic Science Laboratory after considerable delay of eleven days, with no evidence forthcoming about safe custody of the samples during the intervening period—Said circumstances made the report of Chemical Examiner doubtful—Trial Court had acquitted the co- accused persons on the basis of same set of evidence, which had been made basis for conviction and sentence of the accused, on the sole ground that he was found on the driving seat, without proof of his ownership or of being driver of the vehicle—FIR showed that contrabands were jointly smuggled by all the accused persons—Said vehicle was released on superdari to the owner, without bringing anything on record to either show the accused as driver of the vehicle or the fact that the contraband were concealed by him in the vehicle and not by the owner—Prosecution had failed to prove its case, in circumstances thus accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

2018  MLD  702   PESHAWAR-HIGH-COURT

SHAN VS State

1. 9(c)—Possession of narcotic substance—Appreciation of evidence—Benefit of doubt—Prosecution case was that ten packets of heroin weighing ten kilograms were recovered from a secret cavity on the driver side of the vehicle driven by the accused—Complainant separated 1/1 gram heroin from each of the ten packets as samples for chemical analysis—Prosecution produced six witnesses in order to prove the charge against the accused—Statements of the prosecution witnesses were not consistent on the point as Investigating Officer stated that the secret cavity was prepared in the door of the driver side of the vehicle—Marginal witness of the recovery memo stated that the secret cavity was available on the right side of the driver—Complainant contradicted them by saying that the secret cavity was made in the rear partition of the vehicle—Such material contradiction with regard to the alleged recovery from the place of vehicle, would prove fatal for the prosecution—Nothing was available on the record to prove that the accused was owner of the vehicle or that he was driving the vehicle at the time of alleged recovery from the said vehicle—Admittedly, neither anything incriminating was recovered from the personal search of the accused nor there was any record of involvement of the accused in such like cases or in any other criminal activity in the past—Circumstances established that prosecution was unable to prove its case against the accused beyond any shadow of doubt, benefit of which would resolve in favour of accused—Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

2018  MLD  702   PESHAWAR-HIGH-COURT

SHAN VS State

S.9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)—Seizure of narcotics—Chemical analysis—Appreciation of evidence—Benefit of doubt—Delay in sending samples of contraband for analysis—Effect—Record showed that alleged contraband was received in the Forensic Science Laboratory for analysis after considerable delay of eleven days—No explanation was furnished for such inordinate delay or evidence with regard to safe custody of the samples during the intervening period from the date of recovery up-to the receipt of the samples in the Forensic Science Laboratory—Investigating Officer stated that he recorded statement of Muharrir of the police station regarding sending the samples—Said Muharrir stated that sample had been sent to Forensic Science Laboratory through a constable—Neither the said constable was mentioned as prosecution witness in the challan form nor produced as prosecution witness in the court—Register showing the entry of safe custody of the narcotics was not produced—Unattested photo copies of the said register were produced, which could hardly prove safe custody of the samples while they were lying in the police station before their dispatch to the Forensic Science Laboratory, so as to make report of the Forensic Science Laboratory credible and worthy of reliance—Delay of eleven days in sending the samples for analysis would cast serious doubt about the prosecution case, benefit of which would resolve in favour of accused—Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

2018  MLD  504   PESHAWAR-HIGH-COURT

JEHAN SHARIF VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Possession of narcotic drugs—Bail, refusal of—Accused was allegedly found carrying contraband heroin in his stomach to Arab country which describe most stringent punishment to the offender and also carrying Pakistan Passport thereby bringing a bad name to the country—Forensic Science Laboratory report was in affirmative which prima facie connected accused with commission of offence—Accused was not entitled to concession of bail even if offence did not attract the prohibitory clause of S. 497, Cr.P.C.—Bail was refused accordingly.

2018  YLRN  219   PESHAWAR-HIGH-COURT

ASAD KHAN VS State

S.497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic substance weighing two KG—Bail, grant of—Further inquiry—Seizing Officer had not mentioned the mode and manner of weighing the allegedly recovered substance—Accused was allegedly found seated in public transport as passenger holding narcotic substance in a shopper—Charas had an odour which could easily be noticed by the passengers, driver and cleaner of the said vehicle who stated nothing about such recovery—Seizing Officer had not disclosed the mode and manner of weighing as to whether it was by a digital or local scale when samples of 10/10 grams could be exactly weighed, which called for further inquiry into the guilt of accused as envisaged under S.497(2), Cr.P.C—Accused was admitted to bail, in circumstances.

2018  YLRN  199   PESHAWAR-HIGH-COURT

AKHTAR MUNIR VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of charas weighing 5255 grams—Bail, grant of—Accused was not apprehended at spot but was nominated by his brother/main accused— Motorcar from which the recovery had been effected, was in the ownership of accused—Although other cases were registered against accused but he had no record of conviction, which called for further inquiry into the guilt of the accused as envisaged under S.497(2), Cr.P.C.—Accused was admitted to bail, in the circumstances.

2018  YLRN  199   PESHAWAR-HIGH-COURT

AKHTAR MUNIR VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of charas weighing 5255 grams—Bail, refusal of—Habitual offender—Accused was apprehended while sitting on driver seat beneath which, from secret cavities, 5 packets of charas were recovered—Record showed that several other cases pertaining to recovery of narcotic substance were registered against the accused—Accused, in one of the said cases had been convicted—Accused was a habitual offender—Report of Forensic Science Laboratory, in the present case, would further confirm the recovery of Charas—Accused had previous history and had also misused the concession of bail in other cases—Bail was refused, in the circumstances.

2018  YLRN  186   PESHAWAR-HIGH-COURT

Syed ZAHIR HUSSAIN VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Benefit of doubt—Prosecution case was that charas Garda weighing 6000-grams in five packets, each packet weighing 1200-grams, was found and recovered lying in a plastic carton underneath left seat of body of vehicle driven by accused and co-accused occupying front seat of the vehicle—Record showed that prosecution had failed to prove either ownership of the vehicle or accused as its driver—Fact established that vehicle was a passenger vehicle and co-accused was a constable—Nothing was available on record to suggest previous involvement of the accused in such like cases—Admittedly, the contraband was not recovered from personal possession of either of the accused persons—Plastic carton, wherefrom the five packets of charas Garda were allegedly recovered, was not taken into possession, and, as such, not produced in the court—Material contradictions were found in the evidence adduced by the prosecution in support of its case—Complainant stated that the murasila was neither in his handwriting nor in the handwriting of Excise Inspector/witness, but the same was written on his dictation by the constable, whose name he did not remember—Similar was the case of recovery memo and card of arrest—Investigating Officer admitted that Excise Inspector/witness called the complainant that he had apprehended the accused persons and on that the complainant went there—Such circumstances created doubt about the version of prosecution that the complainant apprehended the accused persons and made the alleged recovery of narcotics from the vehicle—Record indicated that charas Garda was recovered, but the report of Chemical Examiner showed its colour as brown solid—Statements of witnesses showed that recovered charas was in the shape of slabs and half baked charas Garda—Said recovery was contrary to the description of recovered charas shown in the FIR as charas Garda was, admittedly in soft form as against charas Pukhta which was in baked shape—Daily diary of the Police Station, showing departure and arrival of the complainant was not produced—Complainant did not remember as to how he separated samples from each packet—Investigating Officer admitted that samples were lying with him for two days, and were sent to the Forensic Science Laboratory on third day of the alleged recovery, without any proof with regard to safe custody of the samples in said three days—Retaining of samples by Investigating Officer for three days without any justifiable reason would certainly cast shadow of doubt on the report/opinion of the Chemical Examiner and also on recovery of narcotics from the accused—Prosecution had failed to prove its case—Accused persons were acquitted by setting aside conviction and sentences recorded by the Trial Court.

2018  YLRN  150   PESHAWAR-HIGH-COURT

MUHAMMAD ZUBAIR VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic drugs—Bail, grant of—Statutory ground of delay—Accused had already spent over twenty two months behind the bars and prosecution was not coming up with its evidence as four prosecution witnesses were yet to be examined—Early conclusion of trial was not in sight and keeping the accused in jail for further period would tantamount to his pre-trial conviction—Accused was entitled to concession of bail solely on the statutory ground of delay in the conclusion of trial—Bail was granted accordingly.

2018  YLRN  144   PESHAWAR-HIGH-COURT

HASSAN SHAH VS State

18. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic drugs—Bail, grant of—Statutory ground of delay—Challan was submitted against accused on 18.03.2015—Charge was framed against accused on 27.05.2015 and only two prosecution witnesses were examined till 19.06.2017—Accused was behind the bars for thirty months and his trial was not concluded despite issuance of direction by High Court in bail application of accused on statutory ground of delay—Accused was ordered to be released on bail—Bail was allowed accordingly.

2018  YLRN  122   PESHAWAR-HIGH-COURT

CHAN ZEB VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Qanun-e-Shahadat (10 of 1984), Art. 38—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4—Possession of narcotic drugs—Bail, grant of—Further inquiry—Material implicating the accused was statement of co-accused before police which could not be considered as evidence against accused in view of provision of Art.38 of Qanun-e-Shahadat, 1984—Nothing was recovered from direct possession of accused—House from where alleged contraband was recovered belonged to co-accused—Nothing was available on record to show that accused was ever involved in similar cases in the past—Accused remained absconder for sufficient long time but mere abscondance would not disentitle him from concession of bail—Investigation in the case was complete and supplementary challan had been submitted, therefore, accused was no longer required to police for further investigation—Incarceration of accused would serve no useful purpose—Case against accused fell within ambit of further inquiry into his guilt as envisaged in sub-section (2) of S.497, Cr.P.C.—Bail was granted accordingly.

2018  YLRN  93   PESHAWAR-HIGH-COURT

IHSAN ULLAH VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that 490-kilo grams of charas along with two un-licensed Kalashnikov rifles were recovered from secret cavities of the truck of accused—Record showed that major and material contradictions existed between the statements of prosecution witnesses—Witnesses were not consistent with on the points as to wherefrom the truck was coming and where proceeding—Record was silent as to which constable took the truck to the police line and which type of tools/machinery used in cutting the secret cavities of the truck—Nothing was available on record to show that as to how many secret cavities were found in the truck and what number of packets were recovered from each cavity and from which portion/cavity of the truck, the Kalashnikov rifles were recovered—Prosecution witness, who apprehended the truck was mute as to who was driving the truck at the relevant time—Complainant had not witnessed as to who was on the steering wheel of the vehicle and driving at the time of occurrence—Record transpired that evidence of the prosecution was inconsistent regarding the opening of the secret cavities of the vehicle—Prosecution witness who received information about transporting of huge quantity of narcotics in the vehicle, number of which was specifically told to him by his informer, was not produced before the court during the trial and was abandoned by the prosecution being unnecessary—Investigating officer neither made the actual owner of the truck as accused nor witness nor made any efforts to check if he had sold the truck to the accused—Investigating Officer was unaware about the weight of the recovered contraband and as to from which scale, the same was weighed and was unaware about the separation of sample from each packet—Investigating Officer had not investigated the matter on the line as to who was the actual seller of the narcotics and who was the purchaser—Police officials, who took the case property/sample to the Forensic Science Laboratory and in whose custody, it was lying till its dispatch, were not examined during trial—Truck, from which narcotics recovered, was not produced before the court—Kalashnikov rifles allegedly recovered from the truck were not produced before the Trial Court, to enable to see whether those, actually, were in working condition or not—Circumstances established that the mode and manner of arrest of the accused and recovery of contraband were doubtful as the prosecution did not prove its case beyond any shadow of doubt, benefit of which would resolve in favour of accused—Accused was acquitted in circumstances by setting aside conviction and sentence recorded by Trial Court.

2018  YLRN  85   PESHAWAR-HIGH-COURT

MUHAMMAD AFZAAL VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic drugs—Bail, refusal of—Huge quantity of contraband ‘charas’ and ‘heroin’ was allegedly recovered from personal possession of accused, which prima facie connected accused with the commission of offence falling within prohibition contained in S.497, Cr.P.C.—Accused had past history of his indulgence in such like offences—Report of Forensic Science Laboratory was positive—Accused failed to make out a case for grant of bail—Bail was refused accordingly.

2018  PCrLJN  185   PESHAWAR-HIGH-COURT

SAEEDULLAH KHAN VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that seven packets each containing 1200 grams of opium and packets of heroin two containing 100 grams of heroin and two containing 500 grams of heroin were recovered from the bag owned by the accused—Out of the said quantity of opium and heroin, five grams from each sealed into parcel and sent to the Chemical Examiner for analysis whose report confirmed the contents to be that of opium and heroin—Record showed that said packets were recovered from the bag allegedly laid beneath the foot of the accused who was seated in the coaster, but nothing was mentioned in the murasila to show that sample of 5 grams of opium and heroin were separated for the purpose of Chemical Examiner analysis—Samples which were sent to the Chemical Examiner for analysis could not be said to be the samples of that case or some other case, therefore, genuineness of report was not free from doubt and it was not safe to rely upon the same—Marginal witnesses of the recovery memo did not state anything about separation of the samples from the recovery of contraband for the purpose of Chemical Examiner analysis though the same was mentioned in the recovery memo—Recovered narcotics were neither exhibited nor produced before the Trial Court, which was the best evidence of the prosecution against the accused—Non-production of the case property in the court was fatal to the prosecution case and would destroy its very foundation—Prosecution had failed to establish its case against the accused beyond a ray of doubt—Appeal was therefore, accepted and accused was acquitted by setting aside conviction and sentence recorded against him by the Trial Court.

2018  PCrLJN  157   PESHAWAR-HIGH-COURT

MOMIN SHAH VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Pakistan Arms Ordinance (XX of 1965), S. 15—Possession of narcotic substance and pistol—Bail, grant of—Name of witness to whom allegedly recovered contraband was entrusted for transmitting for chemical analysis was not mentioned in the record—No previous criminal history of accused was available—Effect—Record revealed that recovered pistol with live rounds of .30 bore was validated by arms licence issued by the competent Authority in the name of accused—Recovery of the contraband Charas was shrouded in mystery as not only the same was dispatched to the laboratory after four days but the application from the office of SP (Investigation) was also silent as to whom said recovered Charas was entrusted for chemical analysis—Forensic Science Laboratory did not mention the name of such official but only his official number was written therein—Even challan had not pin-pointed the name of such police official in the calendar of witnesses—Accused had no criminal history—Accused was granted bail, in circumstances.

2018  PCrLJN  151   PESHAWAR-HIGH-COURT

ABID ALI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51—Possession of Narcotic Substance weighing 2200 grams—Bail, refusal of—Maximum punishment—Applicability—Accused was allegedly found with Charras from toll box of rickshaw driven by accused—Contention of accused that while deciding the bail petition the Court was not supposed to keep in the mind maximum sentence provided by law for the charged offence, but the one which was likely to be imposed, was misconceived—Offence with which accused was charged was punishable with death or life imprisonment or imprisonment of 14 years; what sentence was to be imposed was to be considered after trial—Record revealed that recovery was made from toll box of Rickshaw driven by the accused whereas he was saddled with responsibility of conscious possession of narcotic substance found in the vehicle driven by him—Section 51 of Control of Narcotic Substances Act, 1997 provided prohibition against grant of bail in such cases—Bail was refused accordingly.

2018  PCrLJN  145   PESHAWAR-HIGH-COURT

ZAIB KHAN VS State

Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 25—Possession of narcotic substance weighing 3020 grams—Bail, refusal of—Categorization of sentence; quantity or nature of contraband—Scope—Accused was allegedly found with Charas in his personal possession—Accused contended that nature and quantity of contraband and punishment which was likely to be imposed was to be kept in mind while deciding bail petition—Section 9 of Control of Narcotic Substances Act, 1997 revealed that sentence was prescribed with reference to quantity of the recovered narcotic substance and not the kind or nature of the recovered substance—Contention of accused that no witness from public was associated though alleged recovery was effected from public place was based on misconception—Section 25 of Control of Narcotic Substances, Act 1997 had excluded applicability of S. 103, Cr.P.C.—Categorization of sentence or any guess-work or speculative exercise was prohibited at bail stage in such cases—Investigation of the case was complete and trial was likely to commence—Prima facie, accused was connected with the alleged crime—Bail was refused accordingly.

2018  PCrLJN  123   PESHAWAR-HIGH-COURT

MUHAMMAD IDRESS VS State

17. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, grant of—Bail was sought on the ground of statutory delay in conclusion of trial—Scope—Accused was arrested by police on 17.10.2015 on the allegations that 15-kilograms charas Garda was recovered from secret cavities made in the petrol tank of his vehicle—Record showed that complete challan was submitted in the court on 20.4.2016—Accused was summoned for 2.5.2016 and charge was framed on 7.5.2016—Accused did not plead guilty and claimed trial, thus prosecution witnesses along with case property was summoned for 20.5.2016 and since then till 4.12.2017 only four prosecution witnesses had been examined—Record transpired that after lapse of more than one and a half years, trial of petitioner could not be concluded—No delay had been attributed to the petitioner except on two occasions, when his counsel was not available—Petitioner was behind the bars since 17.10.2015 and if the Trial Court would proceed with the trial with such a pace, it would not conclude in a near future—Circumstances established that petitioner had made out a case for bail on statutory delay—Petitioner was admitted to bail accordingly.

2018  PCrLJN  118   PESHAWAR-HIGH-COURT

SABIR KHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession and trafficking of narcotics—Bail, grant of—Statutory ground—Accused was behind the bars for the last more than two years and his trial was not concluded—Only one prosecution witness could be examined by the Trial Court during the said period—Case was being adjourned for the last more than two years on account of prosecution which was not examining the available prosecution witnesses—Record showed that twenty-one times the case was adjourned for recording prosecution evidence and only for two times the case was adjourned due to the absence of defence counsel—No strong reason was available to withhold the concession of bail, in circumstances, when the delay in conclusion of the trial was not on the part of accused—Bail was allowed in circumstances.

2018  PCrLJN  101   PESHAWAR-HIGH-COURT

IMRAN DILAWAR VS State

8. 9(c)—Possession of narcotic substance—Appreciation of evidence—Sentence, reduction in—Prosecution case was that seven packets containing Tikkis (slabs) of opium and four packets of Garda charas wrapped in yellow adhesive tape, total eleven kgs. narcotics, were recovered from the vehicle driven by accused—Ten grams as samples from each of seven packets of opium and four packets of Garda charas were separated for chemical analysis while the remaining contrabands were sealed separately—Forensic Science Laboratory confirmed the samples to be that of opium and charas—Record showed the undisputed presence of the accused in the vehicle from where the recovery of narcotics was made—Statement of accused under S. 342, Cr.P.C. showed that he was seated on the rear seat of the vehicle being servant of co-accused, who was driving the car at the relevant time, whereas other co-accused was seated on the front seat of the vehicle—Said co-accused persons were let free by the Investigating Officer with ulterior motives, whereas he being poor servant of one co-accused was substituted for them—Receipt of Rent-A-Car Office was recovered, which showed that accused had hired the vehicle on self driving basis from 8.01.2014 to 22.01.2014—Recovery of said receipt not only proved the presence of accused on the driving seat of the vehicle at the relevant time, but also belied his assertion that he was not driving the car and was present in the car only as servant of the absconding co-accused—Said facts of the case had proved the possession of narcotics against the accused—Evidence of prosecution witnesses showed that samples were not separated from each Tikki (slab) of the opium and that samples were taken from the packets containing Tikkis (slabs)—Record showed that on opening the packets of opium, four Tikkis (slabs) were found in each packet of opium and sample was separated by cutting one corner of the Tikki (slab)—Said fact showed that seven samples were, admittedly, not separated from each of the four Tikkis (slabs) in a packet—Ten grams sample separated from the packet, in such circumstances, could not be considered representing the entire one kilogram opium in a packet; in the same manner, opium for the chemical examination would be with respect to only ten grams from a packet, total seventy grams from seven packets—Nothing was available on record to suggest that charas in four packets was in the shape of Tikkis (slabs), therefore, ten grams samples were obtained from each of four packets of charas—Report of the chemical examiner in respect thereof was to be considered representing four kilograms charas in four packets, which would bring down quantity of narcotics from eleven kilograms to four kilograms and seventy grams opium—Said facts had made the accused liable to lesser punishment—While maintaining the conviction, the punishment of imprisonment for life was reduced to five years in circumstances—Appeal was partially accepted.

2018  PLD  57   PESHAWAR-HIGH-COURT

YAQOOB VS POLITICAL AGENT KHYBER AGENCY PESHAWAR CANTT

19. 9(c)—Anti-Narcotics Force Act (III of 1997), S. 5—Frontier Crimes Regulations (III of 1901), Regln. 11—Constitution of Pakistan, Arts.199 & 247(7)—Notification No. F.12(3)/98-POB, dated 19.11.2009—SRO No. 1295(I)198, dated 16-11-1998—Constitutional petition— Maintainability— Anti-Narcotics Force— Functions—Federally Adminsitered Tribal Area (FATA)—Sixteen kilograms heroin was recovered from the house of the accused-petitioner—First Information Report was lodged against petitioner and two other persons—Political Agent Khyber Agency tried the petitioner under S.9, Control of Narcotic Substances Act, 1997—Petitioner having been arrested under Control of Narcotic Substances Act, 1997, four jirga members were appointed and issues were framed—Jirga members obtained the consent of the petitioner and gave their unanimous verdict by awarding sentence of 14 years to the petitioner—Appeal before Commissioner under the Frontier Crimes Regulations, 1901, was dismissed—Revision petition before the Federally Administered Tribal Area Tribunal, was also dismissed—Petitiner challenged the conviction and sentence before the High Court under Art.199 of the Constitution—Validity—Political Agent, under Notificaiton No.F.12(3)/98-POB, dated 19-11-2009, was empowered to try and punish the accused charged for offence under the Control of Narcotic Substances Act, 1997, committed within Federally Administered Tribal Area (FATA)—President of Pakistan by virtue of SRO No.1295(I)198, dated 16-11-1998 in compliance with Art.247(3) of the Constitution of Pakistan, had conferred jurisdiction on the Political Agent and had extended the application of the Anti-Narcotics Force Act, 1997 and Control of Narcotic Substances Act, 1997 to FATA, however, hierarchy setup under the Frontier Crimes Regulations, 1901 would continue to exercise its jurisdiction and authority in these cases by necessary implication—Jurisdiction of High Court was not extended to Federally Administered Tribal Area (FATA), in view of Art.247(7) of the Constitution of Pakistan—Constitutional petition was dismissed accordingly.

2018  YLR  2494   LAHORE-HIGH-COURT-LAHORE

GHAYOUR ABBAS VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that 1200 grams of charas was recovered from accused; out of the recovered charas, fifteen grams was separated for chemical analysis—Record showed that the witness/Moharrar stated that the sample was deposited with the office of Chemical Examiner, however, the report of the concerned quarter available on file reflected that it was neither an original report nor it was true/certified copy of the report rather it was a duplicate copy, which was issued four years after the occurrence—Said report did not carry signature of the Bio-Chemist or Chemical Examiner—Report of Chemical Examiner was to be brought on record in terms of S. 510, Cr.P.C. without summoning its author—Said report should be in original form and in case its original was not available, then on the basis of very cogent reasons its certified copy should be presented for consideration—Record reflected that neither the report was original one nor it qualified to be a certified copy, hence, said report could not be read in evidence against the accused to connect him with the case—No provision of law existed deviating from the requisite mode of proof of a document—Record transpired that the report of Chemical Examiner, in the present case, was neither a legal document nor carried sanction of law, hence, the same being vague/invalid document could not be read against the accused—Circumstances established that prosecution lacked incriminating evidence available on record to connect the accused with the offence alleged—Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded against him by the Trial Court.

2018  YLR  2243   LAHORE-HIGH-COURT-LAHORE

KHALIL UR REHMAN alias HEERA VS State

S.497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 20, 21 & 25—Possessing and trafficking of narcotics—Bail, grant of—Further inquiry—Accused who was in the Police custody in connection with a previously registered criminal case, allegedly led to the recovery of 2 Kilograms of charas from his house—According to the S.20 of the Control of Narcotic Substances Act, 1997, search of a building, about which there were reasons to believe that narcotic drug, psychotropic substances, were being kept, was to be conducted under a warrant of search to be issued by the Special Court—Requirement of search warrant, could only be relaxed in circumstances mentioned in S.21 of the Control of Narcotic Substances Act, 1997—Accused being already in custody of Police in a previously registered criminal case, there was no possibility of the concealment or the removal of charas—Investigating Officer, in circumstances, should have obtained a search warrant in accordance with S.20 of the said Act—Said omission provided a valid ground for the grant of bail to the accused—No evidence was available on record to connect the accused with the house from where the recovery was made which aspect reasonably attracted the provisions of S.497(2), Cr.P.C.—Case against accused being of further inquiry, he was admitted to post arrest bail in circumstances.

2018  YLR  1137   LAHORE-HIGH-COURT-LAHORE

AMIR GHULAM alias CHORRA VS State

1. 9(b)—Possession of narcotics—Appreciation of evidence—Non-safe custody of recovered substance—Effect—Prosecution case was that the accused succeeded to flee away while throwing a shopping bag containing 350-grams of charas, which was taken into possession—Out of the said contraband item 10-grams was separated for chemical analysis—Report of Chemical Examiner showed the name of forwarding officer as an Excise and Taxation Officer, who had nothing to do with the same—Excise and Taxation Officer had been intruded in the present case without any justification, who was neither member of the raiding party nor representative of the police station concerned—Excise and Taxation Officer, in circumstances could not be linked with the recovered contraband substance and its sample, which created serious doubt in the veracity of prosecution case with regard to the question of safe custody of the recovered contraband substance—Safe custody as well as safe transmission of the separated sample to the office of Chemical Examiner had not been established by the prosecution in circumstances.

2018  YLR  1137   LAHORE-HIGH-COURT-LAHORE

AMIR GHULAM alias CHORRA VS State

1. 9(b)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that complainant/Police Officer received spy information that two persons/accused were busy in the sale of narcotics, whereupon he conducted raid at the concerned place—Acquitted accused was apprehended at the spot whereas the accused succeeded to flee away while throwing a shopping bag containing 350-grams charas, which was taken into possession—Sample of 10-grams was separated from the recovered charas—Record showed that the complainant and the recovery witness being members of the raiding party made unanimous and consistent statement before the Trial Court, to the effect that the raid was conducted on spy information and on pointation of the spy informer—Acquitted co-accused was arrested on the spot whereas accused succeeded to run away while throwing the shopper bag contained 350-grams charas—Accused was arrested subsequently after about twenty one days—Prosecution had claimed that the spy informer had told the names of the accused and his co-accused being busy in selling narcotic substance—Astonishingly, the raiding party consisting of well-prepared, trained and armed police officials with the conscious knowledge of the consequences of their raid, could not arrest the accused from the populated area in the day light—Spy informer had not been produced before the Trial Court or arrayed as a witness in the present case to substantiate the prosecution’s claim that he had disclosed the names of both the accused to the complainant—In absence of statement of spy informer, the source with regard to the names of the accused persons could not be established especially when the complainant had no previous acquaintance with the accused persons—Admittedly, accused was not apprehended at the spot and his name was disclosed by the spy informer, who had not been produced by the prosecution—Record revealed that Trial Court had acquitted co-accused, who was apprehended at the spot, by disbelieving the prosecution evidence to his extent—Circumstances established that prosecution had failed to prove its case against the accused beyond a reasonable doubt, benefit of which would resolve in favour of accused—Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recoded by the Trial Court.

2018  YLR  860   LAHORE-HIGH-COURT-LAHORE

DILSHAD AHMAD VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Benefit of doubt—Prosecution case was that police party received spy information that two narcotics peddlers were selling charas and if immediate raid was conducted then heavy quantity of narcotics substance would be recovered—Police party reached at the spot and on the signal of the informer encircled both the accused, who on seeing the police party tried to run away but accused was arrested at the spot, whereas co-accused succeeded to flee away—Four packets of charas, tied with his Shalwar were recovered along with sale proceed on search of accused—Accused during interrogation, made disclosure and got recovered 29 packets of charas, concealed in the earth in an iron trunk—Said packets were taken into possession and was found to be weighing 01-maund and 1¼ kilograms—Out of the recovered substance, the complainant separated 5/5-grams from each packet for chemical analysis—Evidence of the complainant showed that on receiving the information, he conducted raid and got recovered four packets of charas and soon after recovery he did not prepare complaint and conducted investigation on the spot—Said evidence of the complainant revealed that the complainant had investigated the case prior to lodging of the FIR, which rendered the whole of the prosecution version doubtful—Investigating Officer had deposed that before his reaching on the spot, complainant had already prepared the complaint, the recovery memo and the site plan of the place of occurrence—Charas was weighed by the complainant in the presence of Investigating Officer—Complainant was not justified in conducting investigation before registration of FIR and preparing all the documents relating to different steps of investigation—Such investigation without registration of the FIR was impermissible which would vitiate the entire proceedings—Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

2018  YLR  860   LAHORE-HIGH-COURT-LAHORE

DILSHAD AHMAD VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Contradictions and discrepancies—Prosecution case was that initially four packets of charas were recovered from the possession of accused—Accused, during interrogation, made disclosure and got recovered 29 more packets of charas, which were concealed in the earth in an iron trunk—Said packets were taken into possession and was found to be weighing 01-maund and 1¼ kilograms—Investigating Officer admitted during cross-examination that on the complaint, the offence was first written as 9(a) and then it was made as 9(c); in recovery memo, there was interpolation where the weight of the charas was shown—Recovery witness deposed that cuttings were present at the time when he signed the recovery memo—Record transpired that complaint and recovery memo had been interpolated regarding weight of recovered substance and nature of offence—Said discrepancies and interpolation cast doubt on the genuineness of the prosecution case—Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

2018  YLR  860   LAHORE-HIGH-COURT-LAHORE

DILSHAD AHMAD VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Safe custody of recovered substance—Prosecution case was that initially four packets of charas were recovered from the possession of accused—Accused, during interrogation made disclosure and got recovered 29 packets, of charas concealed in the earth in an iron trunk—Said packets were taken into possession and were found to be weighing 01-maund and 1¼ kilograms—Prosecution witness/Muharrar of the police station deposed that complainant handed over to him thirty three sealed parcels said to contain charas as the case property along with thirty three parcels of samples for keeping them in safe custody—Witness deposed that he handed over thirty three sealed parcels of samples to a constable for onward transmission to the Chemical Examiner—Witness further deposed that twenty nine parcels of samples were received in the Office of Chemical Examiner while four were returned with objection, which were again forwarded to the Chemical Examiner through another constable after removing the objection—Complainant had not deposed that he handed over sealed parcels of samples and parcels of remaining recovered substance to Muharrar—Contrary to the deposition of Muharrar, complainant deposed that Investigating Officer came at the spot, received the accused, took into possession the recovered charas, the sale proceed and the samples of the charas—Complainant deposed that the case property was taken to the police station by the Investigating Officer—Investigating Officer deposed that complainant had handed over the case property to Muharrar and entry in relevant register was made by Muharrar—Record showed that there was no explanation to establish safe custody of recovered charas and parcels of samples drawn from the seized charas—Sealed parcels of samples and parcels of remaining recovered substance received by Muharrar from complainant were not related to the present case—By mere oral evidence of complainant, recovery witness and Investigating Officer as to the recovery of charas weighing one maund and 1¼ kilograms the burden of responsibility of prosecution had not been discharged—Said inconsistencies and contradictions showed that prosecution had not been able to prove safe custody of the recovered substance and parcels of samples through material and cogent evidence—Facts of the case showed doubt as to whether the samples analyzed by the Chemical Examiner were taken out of same material that was allegedly recovered from the accused during the search—Circumstances established that there was no evidence to connect the reports of Chemical Examiner Reports with the substance which was seized from the possession of the accused—Said circumstances had created serious doubt in the prosecution case, benefit of which would resolve in favour of accused—Accused was acquitted in circumstances by setting aside conviction and sentence recorded by Trial Court.

2018  YLR  700   LAHORE-HIGH-COURT-LAHORE

NEELAM BIBI VS State

Ss. 9(c), 25 & 51—Recovery of narcotic substance—Bail, refusal of—Female accused—Police witnesses—Charas weighing 1600 grams was recovered from shoulder bag of accused lady—Validity—Mere non-associating witnesses from public was not sufficient to vitiate search and recovery proceedings—Applicability of S.103, Cr.P.C. had been specifically ousted to recovery proceedings under S.25 of Control of Narcotic Substances Act, 1997—Alleged recovery was witnessed by police officials who fully corroborated the same in terms of their statements recorded under S.161 Cr.P.C.—Only tentative assessment was to be made and deeper appreciation was not warranted/ permissible at bail stage—Sufficient material was available on record to connect accused with alleged crime and provisions of S.51 of Control of Narcotic Substances Act, 1997, were attracted—Accused lady did not deserve any leniency as no such distinction was provided under Control of Narcotic Substances Act, 1997, and being female she could not claim any immunity on the basis of gender—Bail was refused in circumstances.

2018  PCrLJ  1476   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD YAQOOB VS State

Ss. 9(c) & 36—Possessing and trafficking narcotics—Appreciation of evidence—Benefit of doubt—Prosecution witness deposed that the colour of recovered charas was greenish-brown, whereas the report of Forensic Science Laboratory, had revealed the colour of charas as blackish-brown—Complainant, neither in complaint, nor in his statement before court, mentioned the time as to when accused was nabbed—Prosecution had not been able to discharge its onus of proving the safe custody of recovered substance and such omission gave rise to doubt—Original report issued by Forensic Science Laboratory was not tendered in evidence, instead its attested photocopy was placed on record—Prosecution was required to produce the original document and not its photocopy, even if attested—Production of photocopy of report purported to have been issued by Government Analyst was in no manner in consonance with S.36 of Control of Narcotic Substances Act, 1997—Prosecution, in circumstances, was legally obliged to prove the contents of Laboratory report by calling the Government Analyst as witness during trial—Failure of prosecution to do the needful had rendered the report as of no legal consequences—Secondary evidence (photocopy), in respect of a document could only be tendered if it was shown to have been destroyed or lost—Before placing on record the copy of report, no explanation for failure to produce its original was offered by prosecution—Court could not allow to tender secondary evidence, in circumstances—Report in question having not been brought on record in accordance with law, same was not worth consideration in any manner—Said lacunae and shortcomings raised reasonable doubt, benefit of which would go to the accused—Conviction and sentence awarded to accused, were set aside, and he was acquitted of the charge and was ordered to be released forthwith, in circumstances.

2018  PCrLJ  590   LAHORE-HIGH-COURT-LAHORE

RASHID HUSSAIN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51—Possession and trafficking of narcotics—Bail, grant of—Further inquiry—Despite lapse of more than two months report of Government Analyst was awaited; without which, nature of recovered substance could not be exactly determined—Recovery and search proceedings were also conducted by C.I.A. Staff in violation of S.156, Cr.P.C.—Such fact alone was not sufficient to shatter the prosecution case, but all such discrepancies were sufficient to bring the case of accused within the ambit of further inquiry—Mere levelling of allegations of heinous offence, was not sufficient to keep accused behind the gallows—Once accused had succeeded to establish that his case called for further inquiry and probe, then rigours contained in S.51 of the Control of Narcotic Substances Act, 1997 would not be attracted and accused could not be kept behind the bars—Accused was first offender having no criminal history; he was arrested on 12-4-2017 and since then was behind the bars awaiting trial, conclusion of which was not in sight—Illegality committed by the complainant, made the case a fit one of further inquiry—Accused was admitted to post arrest bail, in circumstances.

2018  PCrLJ  590   LAHORE-HIGH-COURT-LAHORE

RASHID HUSSAIN VS State

1. 9(c)—Criminal Procedure Code (V of 1898), Ss. 156 & 4(p)—Police Rules, 1934, Chap. XXI—Possession and trafficking of narcotics—Authority to investigate—Sub-Inspector (C.I.A. Staff) along with the other Police Officials had conducted raid and allegedly recovered three packets containing charas each weighing 1000 grams—Under subsection (1) of S. 156, Cr.P.C., the power to investigate a cognizable offence had been conferred on any Officer Incharge of Police Station having jurisdiction over the local area within the limits of such Police Station—Crime Investigation Agency (C.I.A.) personnel, had no power to investigate a cognizable offence—Conduct of Sub-Inspector of C.I.A. staff was illegal as he had no power to investigate the said case—“Central Intelligence Agency (C.I.A.)”, was one of the preventive and detector organizations created under Chapt. XXI of the Police Rules, 1934 and was established in order to assist the Superintendent of Police and his supervising staff in co-ordinating prevention and detective work of the District Police—No justification existed for S.I./C.I.A. to pre-empt the functions of the area Police—Criminal Investigation Agency (C.I.A.) personnel were not empowered to investigate the matter.

2018  PCrLJ  354   LAHORE-HIGH-COURT-LAHORE

JAHANZAIB KHAN VS SPECIAL JUDGE CNS COURT, LAHORE

14. 9(c)— Criminal Procedure Code (V of 1898), S. 539-B—Possession of narcotic substance—Appreciation of evidence—Local inspection—Scope—Prosecution case was that accused persons were arrested with 14.400 kilograms of charas and 9.600 kilograms of opium—Accused persons had concealed some of the narcotics in the secret cavities of the rear bumper of the car—Prosecution had brought four witnesses to prove the charge against the accused persons—Car, which was allegedly used for drug trafficking was also produced—Accused took plea that the prosecution case was false and no narcotics were recovered from the car—Accused emphasized on the fact that there were no secret cavities in the car in which the narcotics could be hidden, more particularly its rear bumper—Investigating Officer was cross-examined on the said point—While the cross-examination of Investigating Officer was in progress, the accused filed application under S. 539-B, Cr.P.C. before the Trial Court requesting the Judge to inspect the rear bumper of the car to verify whether it had any secret cavities—Trial Court dismissed the said application, holding that there was no need for any such inspection—Validity—Record showed that the Trial Court had simply stated that car from which the narcotics were allegedly recovered was parked outside the court-room and defence counsel was at liberty to inspect the same in the opinion of the court, it was not necessary to inspect the same—Record transpired that the precise defence plea was that the prosecution story was concocted and the narcotics were foisted on the accused persons—Since the prosecution had alleged that some packets of the contraband substance were recovered from the secret cavities of the car’s bumper, the accused sought to demonstrate that no such cavities existed—Inspection of the car in general and its bumper in particular was imperative for a just decision of the case—Denial of an opportunity to the accused to make the demonstration would be a denial of his Fundamental Right to a fair trial—High Court observed that Trial Court was obligated to make inspections under S. 539-B, Cr.P.C. personally and could not delegate his powers to any body by appointing a commission or otherwise—Trial Court should have recorded a memorandum of any relevant fact observed at such inspection which should form part of the file—Appeal was allowed by accepting the application filed by accused in circumstances.

2018  PCrLJ  109   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD TARIQ VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—“Possession of narcotic”—Elements—Alleged recovery of narcotics, was not made from the direct physical and conscious possession of the accused, but was recovered from the house of acquitted co-accused—Mere presence of accused, would not be sufficient to connect accused with alleged narcotic substance—Prosecution had to prove two elements of possession i.e. (i) corpus, the element of physical control; and (ii) animus or intent with which such control was exercised and not merely the physical presence of accused in the house, the possession could not be inferred—Prosecution had not established connection with the parcel of sample deposited with the office of Chemical Examiner; it was unsafe to base conviction of accused on the basis of testimony of prosecution witnesses which could not be said to be trustworthy on the facts and circumstances of the case—Prosecution had failed to prove the guilt of accused beyond reasonable doubt—Trial Court, was not justified in convicting accused for committing the offence without any legal evidence worthy of credit available on record—Inherent illegality in the matter, being present, conviction of accused could not be upheld—Findings of the Trial Court were set aside—Accused was acquitted of the charge, and was directed to be released, in circumstances.

2018  MLD  1642   LAHORE-HIGH-COURT-LAHORE

NAVEED AKHTAR VS State

2. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Sentence, reduction in—Prosecution case was that 1020 grams of heroin was recovered from accused, out of which 5 grams were forwarded to Forensic Science Laboratory for analysis—Forwarded sample of heroin, when weighed in Laboratory, it transpired to be 2.37 grams instead of 5 grams which showed that complainant/Police Officer, used a faulty scale to measure the weight of recovered heroin—Prosecution, was obliged to prove every bit of its case beyond doubt and was obliged to address the difference of said weight—Recovered quantity of 1020 grams of heroin, was to be reduced in same ratio as weighed by Forensic Science Laboratory—Held, that 483.48 grams of heroin was recovered from accused; which quantity of heroin attracted the provisions of S.9(b) of Control of Narcotic Substances Act, 1997—Conviction and sentence of accused under S.9(c) of Control of Narcotic Substances Act, 1997 was set aside and he was convicted under S.9(b) of said Act—Accused was directed to undergo rigorous imprisonment for 1 year and 7 months and to pay fine of Rs.13,000.

2018  MLD  1416   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ZAFAR VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997),Ss. 9(c) & 2(d)(ii)—Prohibition ( Enforcement of Hadd) Order (4 of 1979), Art.4—Possession of narcotic substance weighing 3 kilograms—Bail, grant of—Recovery of “Bhang”—Recovery of “Bhang” from the accused, was without specifying parts thereof—Trial Court would determine as to whether the case against the accused fell within ambit of S. 2(d)(ii) of Control of Narcotic Substances Act, 1997 or under the Prohibition (Enforcement of Hadd) Order, 1979—-Accused was first offender having no criminal antecedents and was behind the bars for the last about one month—Investigation of the case was complete and person of the accused was no more required by the police for the purpose of further investigation—Conclusion of trial was not in sight, therefore, further detention of accused in jail would serve no useful purpose—Accused was admitted to bail, in circumstances.

2018  YLRN  124   LAHORE-HIGH-COURT-LAHORE

ZAFAR ALI SHAH VS ZAKIR HUSSAIN

1. 497(5)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic drugs—Application for cancellation of post arrest bail—Applicant was alien to the proceedings and allowing him to move an application for cancellation of bail would open a floodgate permitting every private individual to settle his personal scores with an accused booked in FIR bearing no direct nexus with that person—Allowing a private individual to move for cancellation of bail allowed to an accused wherein such person was neither a complainant, a witness nor directly aggrieved in any manner would be in complete negation of the mandate of Chapter XXXVIII of Cr.P.C. and it would certainly disturb the fiber of law and frustrate the object and scheme of prosecution—Without touching upon the merits of the case, High Court held that application was not maintainable on account of lack of locus standi which was dismissed accordingly.

2018  YLRN  9   LAHORE-HIGH-COURT-LAHORE

ALLAH DITTA VS State

Rr. 4 & 5—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession and trafficking of narcotic—Delay in sending samples—Non-compliance of Control of Narcotic Substances (Government Analysts) Rules, 2001—Effect—Rules 4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001, were directory and not mandatory in nature—Mere fact that samples were sent to Forensic Science Laboratory beyond the prescribed period of 72 hours would not be fatal unless accused showed that the samples were tampered or he was otherwise prejudiced by the delay.

2018  YLRN  9   LAHORE-HIGH-COURT-LAHORE

ALLAH DITTA VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S.103—Possession of narcotic substance—Appreciation of evidence—Private witness was not associated as recovery witness— Effect— Prosecution case was that accused got recovered 1200-gram heroin during the course of investigation of another case—Defense had contended that no private witness was associated to act as mashir of arrest and recovery, which was violation of provision of S.103, Cr.P.C.—Validity—Section 25 of Control of Narcotic Substances Act, 1997 had excluded the applicability of S.103 Cr.P.C.—Association of witnesses from the public was not mandatory in narcotic cases—Appeal against conviction was dismissed in circumstances.

2018  YLRN  9   LAHORE-HIGH-COURT-LAHORE

ALLAH DITTA VS State

1. 9(c)—Possession of narcotic substance—Appreciation of evidence—Police official as witness—Validity—Testimony of police official was as good as evidence of any other witness unless the accused was able to establish that police witness who appeared against him had personal motive/malafides to falsely implicate him in the offence—Accused had attempted to show that the complainant was inimical towards him as he had made complaint against him—Such plea could not believed as said complaint could not be a cause for foisting such a huge quantity of narcotics—Record showed that accused had a long criminal history and had even previously been involved in narcotics cases—Appeal against conviction was dismissed in circumstances.

2018  YLRN  9   LAHORE-HIGH-COURT-LAHORE

ALLAH DITTA VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Prosecution case was that 1200-grams heroine was recovered from the accused during the course of investigation in another case—Prosecution produced complainant and recovery witness in order to prove the charge against the accused—Statements of said witnesses were coherent and confidence inspiring—Said witnesses had corroborated each other on all material points including date, time and place of occurrence, the quantity of recovered narcotics and the manner in which recovery was effected—Version of the said witnesses was vouched by the report of Forensic Science Agency—Circumstances established that accused was involved in the offence—Appeal against conviction was dismissed accordingly.

2018  PCrLJN  220   LAHORE-HIGH-COURT-LAHORE

ZIA UR REHMAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Prosecution case was that twenty seven kilograms of garda charas in twenty seven packets, thirty three kilograms charas in thirty three packets and ten kilograms of opium in ten packets were recovered from the secret cavity made in the roof of truck driven by accused, while co-accused was sitting on the front seat—Out of the recovered narcotics ten grams were separated from each packet and sealed into seventy parcels for Chemical Analysis—In order to bring home guilt of the accused persons, prosecution had examined as many as five witnesses—Record showed that witnesses of recovery were completely in line with the prosecution case set forth in the complaint—Said witnesses remained firm and their statements could not be shattered in cross examination—Ocular account was supported by report of Government Analyst—Dual function of the complainant, being complainant and Investigating Officer, caused no prejudice to the accused persons—Prosecution had produced all the necessary evidence, which could safely be termed as cogent enough to discharge the initial burden of proof—Nothing was available on record, which could form basis for discarding confidence inspiring evidence of the prosecution—No reason existed for the Police Officials to falsely implicate the accused persons in the heinous offence—Substitution was always a rare phenomenon in criminal cases and it did not appeal to a prudent mind that after effecting such a huge quantity of narcotics, actual culprits had been let off by the police—Circumstances established that prosecution had successfully established the guilt of the accused persons—Appeal was dismissed.

2018  PCrLJN  11   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD YOUSAF VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Complainant and recovery witness supporting the prosecution version—Lesser sentence—Effect—Complainant and recovery witness had supported the prosecution version with regard to recovery of substance—Defence had failed to bring on record any evidence favouring the defence version—Evidence of prosecution witnesses could not be rendered untrustworthy on account of their being official witnesses—Trial Court had already inflicted lesser sentence to the accused—Prosecution had established its case through tangible and confidence inspiring evidence—Trial Court had rightly recorded conviction and sentence against the accused—Appeal was dismissed in circumstances.

2018  YLR  2358   KARACHI-HIGH-COURT-SINDH

ABDUL WAQAR VS State

1. 9(c)—Possessing and trafficking narcotics—Benefit of doubt—All the prosecution witnesses were police officials and no private person was associated without any valid reason to witness recovery proceedings, despite place of incident was a busy place—No efforts were made to persuade any person from the locality to act as witness of incident—Material discrepancies had been noticed in the documents produced by the prosecution at trial and the deposition of the prosecution witnesses in respect of timings—Weight of recovered charas was 2500 grams, but as per report of Chemical Examiner the gross weight of charas was 2554 grams—Prosecution had failed to justify how the weight of charas was increased by 54 grams—Said ambiguity had made the case of prosecution highly doubtful—Prosecution had failed to satisfy on the point of safe custody of property at Police Station and its transit to Chemical Examiner—Prosecution had not examined Head Muharrir and the Police Official who deposited the charas to the office of Chemical Examiner—Prosecution had failed to discharge its liability of proving the guilt of accused beyond shadow of doubt—While extending benefit of doubt, conviction and sentence recorded by the Trial Court against accused by impugned judgment, were set aside—Accused was acquitted of the charge and was ordered to be released forthwith, in circumstances.

2018  YLR  2031   KARACHI-HIGH-COURT-SINDH

WAJAHAT ALI ZAIDI VS State

Ss. 497, 537 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 21 & 25 — Possession of narcotic weighing 2250 grams— Bail, refusal of— More than two kilograms of Charas was allegedly recovered from the accused—Punishment provided under clause (c) of S.9 Control of Narcotic Substances Act, 1997 was either death, imprisonment for life or imprisonment for a term which might extend to fourteen years with fine which might upto one million rupees and the same fell under prohibitory clause of S.497, Cr.P.C.—Section 21 of Control of Narcotic Substances Act , 1997 dealt with power of police officer to enter, search and seize without warrant by an officer not below the rank of Sub-Inspector of police or equivalent authorized in such behalf by the government—Investigation by an unauthorized Officer was an irregularily careable under S.537, Cr.P.C.—Section 25 of Control of Narcotic Substances Act, 1997 had excluded applicability of S. 103, Cr.P.C. in such cases—Bail, in circumstances, was refused to the accused.

2018  YLR  1992   KARACHI-HIGH-COURT-SINDH

NAZAR MUHAMMAD alias NAZROO VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Benefit of doubt—Alleged recovered charas was sent to the Chemical Examiner two days after its recovery and prosecution had failed to produce any entry of Malkhana as well as statement of incharge thereof in order to establish its safe custody—Despite the fact that case was of prior information, the complainant had admitted that neither he asked any private person to associate as mashir to witness the recovery proceedings, nor he tried so, though there were so many people available at the place—Evidence produced by the prosecution, was not reliable, trustworthy and confidence inspiring and there were material contradictions in the evidence of the prosecution witnesses—Delay of two days in sending samples of charas to Chemical Examiner could not be ignored—Report of Chemical Examiner, was also not in accordance with prescribed rules—Material contradictions were noticed in the evidence of the complainant and mashir which could not be relied upon—Prosecution having failed to prove its case against accused beyond reasonable shadow of doubt, extending benefit of doubt to accused, impugned judgment passed by the Trial Court was set aside and accused was ordered to be released forthwith.

2018  YLR  1496   KARACHI-HIGH-COURT-SINDH

ZARDULLAH KHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession and trafficking of narcotics—Bail, refusal of—Accused was arrested red-handed with huge quantity of 375 Kgs of heroin—Accused had been booked by the prosecution as main exporter of the subject consignment and he had admitted his guilt—Each of the container had been broken by the Inspector in the presence of accused—Accused had acquired the godown from prosecution witness only for storage of sanitary material and had filed undertaking regarding the goods for export—Recovery of heroin powder was witnessed by the Police Officials, they were as good witnesses as any other person, and they had no ostesible reason to falsely implicate the accused in a case of serious nature—Chemical Examiner’s report of subject narcotic substance was positive, which supported the prosecution case—Case of accused was hit by prohibition contained in S.51 of Control of Narcotic Substances Act, 1997—No material had been produced to suggest that accused was falsely implicated in the alleged crime—Section 25 of Control of Narcotic Substances Act, 1997 having excluded applicability of S.103, Cr.P.C., no case of further enquiry was made out—Rule of consistency was not applicable in the case—Merely saying that accused had been implicated by Anti-Narcotic Force, was not sufficient to discard the prosecution story as being false, which was even otherwise a factual controversy and at bail stage only tentative assessment of the record was to be made—Plea that handwriting expert’s report did not support the prosecution case required evidence and Trial Court seized of the matter was to look into that aspect of the case; as at bail stage that was hardly a ground of bail—Offence against accused was punishable with life imprisonment—Witnesses had supported the case against the accused—Trial of the case was at the verge of con-clusion and could be concluded within a period of two months—Accused having not made out a case for grant of bail, appli-cation for bail was dismissed, in circum-stances.

2018  YLR  1436   KARACHI-HIGH-COURT-SINDH

FAZAL MOULA VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c), 14 & 15—Possession of narcotic drugs, aiding, abetment or association in narcotic offences—Bail, refusal of—Accused allegedly was arrested red-handed while he was receiving charas (narcotic) packets and putting in the diggy of car—Samples so separated from the recovered lot when were sent to Forensic Science Laboratory were analyzed as ‘charas’ by Chemical Examiner—Counsel for accused was unable to point out any misreading, non-reading of material and law available on the subject—Accused was involved in other case of recovery of charas; which fact was conceded by accused—Offences punishable under the Control of Narcotic Substances Act, 1997 were by its nature heinous in nature and against the society at large—Bail was refused accordingly.

2018  YLR  1400   KARACHI-HIGH-COURT-SINDH

MUHAMMAD MUBEEN KHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c), 14 & 15—Possession of narcotic drugs, aiding abetment or association in narcotic offences—Bail, refusal of—Second bail application— Maintainability— Scope—High Court had already rejected the bail application of the accused on merits—Second bail application was filed within one month of the rejection of first such application—Contention of counsel for accused that some of the grounds shown in earlier bail application were not dealt with separately while rejecting the bail application, therefore plea for bail of the accused could be reconsidered in the second application, was patently untenable for the reason that High Court had already rejected first bail application on merits—Second bail application on the face of it was misconceived and not entertainable as admittedly there was no fresh ground available to the accused to file the second bail application—Bail was refused.

2018  YLR  1270   KARACHI-HIGH-COURT-SINDH

GUL ZAMAN VS State

69. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9 & 51—Possessing and trafficking of narcotics—Bail, refusal of—Section 51 of Control of Narcotic Substances Act, 1997 had provided that bail was not available in cases where the death sentence could be awarded—Accused had been challaned under S.9(c) of the Control of Narcotic Substances Act, 1997—Massive amount of charas (69.6 Kg) had been recovered from accused, which potentially could lead to death penalty or life sentence—Sufficient material was available on record to connect accused to the offence for which he had been charged—All the prosecution witnesses, had supported the prosecution case—Recovery was made from accused on the spot with positive chemical report—Accused hailed from Khyber Pakhtunkhwa Province, the possibility of his absconsion, if he was granted bail, could not be ruled out—Accused was third time involved in the case, which suggested that he was a hardened criminal—Drug dealing, being a heinous crime against society, possibility of capital punishment existed—High Court observed that prolonged delay in conclusion of the trial, was condemnable in the strongest possible terms—Matter could be dealt with by issuing a further direction to the Trial Court to complete the trial within a given period—Bail application was dismissed and the Trial Court was directed to hear the matter on a day to day basis and complete the trial within three months.

2018  YLR  911   KARACHI-HIGH-COURT-SINDH

IMTIAZ ALI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)—Possession of narcotic drugs—Bail, refusal of—Accused was exclusively caught in possession of charas (narcotic) in a stolen car and charas was undoubtedly was linked to him—Offence fell within the prohibitory clause of S.497, Cr.P.C.—Chemical examination report was positive and any delay in forwarding the chemical report would not be fatal to the prosecution case as R. 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001 was directory—Accused had produced no material to show mala fide on the part of the police and had simply made a bald allegation—Argument of a false and concocted FIR being not sustainable was rejected—Under S. 51, Control of Narcotic Substances Act, 1997 bail could only be granted in such like cases sparingly—Bail was refused accordingly.

2018  YLR  503   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AKRAM VS State

Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c), 21 & 51—Possession of narcotic drugs—Bail, refusal of—Accused was arrested red-handed with possession of charas and heroin—Chemical Examination Report supported the prosecution case—Recovery of charas and heroin was duly witnessed by police officials who were as good witnesses as any other person—Police had no ostensible reason to falsely implicate accused—Case of accused was hit by prohibition contained in S. 51, Control of Narcotic Substances Act, 1997—Alleged offence was punishable with life imprisonment—Accused had not made out a case for grant of bail—Bail was refused accordingly.

2018  YLR  417   KARACHI-HIGH-COURT-SINDH

Sardar MUHAMMAD AZAD KHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8, 9, 14 & 15—Possession of narcotic drugs, export and trafficking of narcotic drugs, aiding, abetment or association in narcotic drugs—Bail, refusal of—Huge quantity of narcotic drugs was recovered from a container shipped from one country to another—Scrutiny of shipment showed that documents, cell numbers, emails of both the accused persons were found involved in commission of offence—Accused was unable to point out any mis-reading, non-reading of material and law on the subject—One out of the two accused persons was previous convict in a narcotic case, said fact was conceded by accused—No enmity, ill-will or grudge was alleged against prosecution witnesses and sufficient material was brought by prosecution on the record—Bail was refused accordingly.

2018  YLR  190   KARACHI-HIGH-COURT-SINDH

JAN MUHAMMAD alias JANU VS State

4. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic drugs—Bail, refusal of—Accused belonged to place “A” while the arresting police was from place “B” and as such had no animus or nexus with the accused to involve him in a false case—Prima facie 4.5 kilogram charas (narcotic) was recovered from the accused and chemical report was positive, therefore, S. 9(c) of Control of Narcotic Substances Act, 1997 would be attracted putting the case within prohibitory clause of S. 497, Cr.P.C.—Absence of independent mushirs (recovery witnesses) was not helpful to the accused—Bail, in such like cases, would be granted very cautiously and sparingly especially where massive recoveries had been made and prima facie there appeared sufficient material to connect the accused with the offence for which he was charged—Bail was refused accordingly.

2018  PCrLJ  1393   KARACHI-HIGH-COURT-SINDH

BUDHO VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Prosecution case was that a sack containing fifty packets of charas weighing fifty kilograms was recovered from the diggy of the vehicle driven by accused, while co-accused persons were sitting on rear seat of the vehicle—Complainant (Investigating Officer) sealed the recovered charas in the same sack at the spot and arrested the accused—Prosecution, in order to bring home guilt of the accused persons, had examined complainant and recovery witness—Complainant and recovery witness both had fully supported the prosecution case—Said witnesses were subjected to lengthy cross-examination but nothing came on record to discredit their evidence—Said witnesses were unanimous on all material aspects of the case—No discrepancy or material contradiction was found in their evidence—Investigating Officer had sent entire charas to the Chemical Examiner for analysis without loss of time—Evidence of Excise Officials was fully supported by positive chemical report—Plea that huge quantity of fifty kilograms charas had been foisted had no justification—Evidence of prosecution witnesses was quite reliable, trustworthy and confidence inspiring—Objection of defence that there were material contradictions in the evidence of the prosecution had no force as the courts were supposed to dispose of the matter with dynamic approach, instead of acquitting the drug paddlers on technicalities—In the present case, presence of accused being a driver in the car was not denied and it had been established by cogent evidence—Driver of the vehicle invariably raised the plea that he had no knowledge when narcotics or other contraband items were recovered from the vehicle, but depending upon the facts and circumstances of the case, contention of the defence was found without merit—Driver could not be absolved from the responsibility—Evidence showed that co-accused persons were sitting on the rear seat of the car and it was not a passenger bus—Co-accused persons had not raised the plea that they had hired the said car as taxi, as such they were equally responsible for committing the offence charged against them—Circumstances established that prosecution had proved its case against the accused persons—Appeal was dismissed.

2018  PCrLJ  1307   KARACHI-HIGH-COURT-SINDH

RAHEEL ABBAS VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking narcotics—Bail, grant of—Case against accused had been challaned and accused was no more required for investigation—Case of prosecution being based upon the evidence of Police Officials, no question would arise for tampering their evidence at the hands of accused—Case of prosecution rested upon the evidence of Police Officials, their evidence was required to be minutely scrutinized at the time of trial as to whether offence as alleged in the FIR was committed by accused in a manner as narrated by the complainant or otherwise—Nothing was on record to show that accused was previous convict or had been arrested in other case of similar nature in the past—Complainant (Sub-Inspector of Police), had acted in the case as Investigating Officer—Evidence of the complainant, who himself conducted investigation, though was admissible, but for the safe administration of justice, he should have entrusted the investigation to some other Police Officer, so that nobody could raise any finger on the investigation—Trial Court was yet to determine as to whether investigation carried out by the complainant who himself had acted as Investigating Officer of the case, could safely be relied upon or otherwise—Accused had already sat in the B. Com. (Part-I) examination and relevant documents were on record—Examination was scheduled to be held—If at such a stage bail was refused, career of accused would be spoiled—Accused, was admitted to bail, in circumstances.

2018  PCrLJ  1200   KARACHI-HIGH-COURT-SINDH

GHULAM MUSTAFA VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence— Sentence, reduction in— Prosecution case was that 250-kilograms charas in different bags were recovered from the house of accused who was arrested on the spot—Ocular account was furnished by two witnesses including complainant—Record showed that a huge quantity of 250-kilograms charas was recovered during search of the house of accused—Accused had pleaded that provision of S. 103, Cr.P.C. had been violated, whereas the applicability of S. 103, Cr.P.C. in narcotics cases had been excluded—Non-inclusion of private witness in recovery proceedings was not a serious defect to vitiate the conviction—Prosecution witnesses had furnished straight forward and confidence inspiring evidence and there was nothing on record to show that they had deposed against the accused maliciously or out of any animus—Police Officials could not plant such a huge quantity of narcotic upon the accused from their own source—Witnesses were cross-examined at length, but no material discrepancy or contradiction in the evidence was pointed out by the defence—Complainant had fully supported the version of FIR and recovery of charas from the house of accused—Mashir also corroborated the evidence of complainant—No enmity, ill-will or grudge had been alleged or proved against the prosecution witnesses to falsely implicate the accused—Prosecution had succeeded to bring the guilt of accused home and defence had failed to point out any material illegality or serious infirmity committed by the Trial Court while passing the impugned judgment—Family members of the accused were extremely poor and were virtually starving due to confinement of accused in jail—Jail roll reflected that the accused had served out the sentence of twenty three years, eight months and twenty eight days including remissions and by now the accused remained in custody for twenty four years, two months and twenty eight days coupled with the fact that accused was first offender and had no previous criminal record to his credit—Appeal was partly allowed in such circumstances and conviction of accused was maintained, but the sentence of life imprisonment of the accused was altered and reduced to the period he had already undergone.

2018  PCrLJ  1200   KARACHI-HIGH-COURT-SINDH

GHULAM MUSTAFA VS State

Ss. 9(c) & 21—Possession of narcotics—Appreciation of evidence—Arrest of accused in violation of S. 21, Control of Narcotic Substances Act, 1997—Allegation against accused was that 250-kilograms charas was recovered from the house of the accused—Accused contended that he was arrested in violation of S. 21 of Control of Narcotic Substances Act, 1997—Effect—Provisions of S. 21 of Control of Narcotic Substances Act, 1997 were not mandatory and non-compliance thereof under peculiar circumstances of the case, would not affect the recovery of such a huge quantity of narcotic substance—Complainant had stated that he had received information at about 2.00 during the night, therefore, it was not possible for him to obtain search warrant at the cost of disappearance of the accused and narcotic—Non-compliance of the provision of S. 21 of the Control of Narcotic Substances Act, 1997 could not make the conviction of the accused bad in the eyes of law.

2018  PCrLJ  1015   KARACHI-HIGH-COURT-SINDH

ABDUL REHMAN alias JUMAN VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic substance—Appreciation of evidence—Police officials as sole recovery witnesses—Competence—Principles—Prosecution case was that 15-kilograms opium was recovered from the bag of accused—Prosecution witnesses were police officials—Defence had alleged that no private witness was associated at the time of recovery, which was violation of provision of S. 103, Cr.P.C.—Validity—In view of S. 25 of Control of Narcotic Substances Act, 1997, application of S. 103, Cr.P.C. in narcotics cases had been excluded and non-inclusion of any private person was not a serious defect to vitiate the conviction of accused—Appeal against conviction was dismissed in circumstances.

2018  PCrLJ  1015   KARACHI-HIGH-COURT-SINDH

ABDUL REHMAN alias JUMAN VS State

1. 9(c)— Possession of narcotics— Appreciation of evidence—Prosecution case was that 15-kilograms opium was recovered from the bag of accused—Evidence of complainant and recovery witness showed that 15-kilograms opium had been recovered from the bag of the accused in presence of mashirs—Accused was transporting the same in a taxi car and the taxi driver ran away, but the accused was apprehended—Opium was sent to the Chemical Examiner promptly and the positive report was received—Record showed that Anti Narcotics Force Officials had no animosity against the accused and there was no reason for the Anti-Narcotics Force Officials to foist such huge quantity of opium upon the accused—All the prosecution witnesses had deposed in line to support the prosecution evidence—Report of Chemical Examiner was positive—Witnesses had passed the test of lengthy cross examination but the defence failed to make any dent in the prosecution evidence or to pin point any material contradiction fatal to the prosecution evidence—No enmity whatsoever had been brought on record against prosecution witnesses—Record showed that complainant tried to call private persons from the road and made request to 4/5 persons but they were reluctant to act as mashir—Reluctance of general public to become witness in such like cases had become judicially recognized fact and there was no way out to consider the statement of the official witnesses as no legal bar or restriction had been imposed—Circumstances established that the judgment passed by the Trial Court did not suffer from any illegality, irregularity or infirmity so as to call for interference—Appeal against conviction was dismissed in circumstances.

2018  PCrLJ  1015   KARACHI-HIGH-COURT-SINDH

ABDUL REHMAN alias JUMAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Officials of Anti-Narcotics Force as witnesses—Officials of Anti Narcotics Force were the competent witnesses like other independent witnesses—Testimony of said officials could not be discarded merely on the ground that they were employees of Anti-Narcotics Force.

2018  PCrLJ  1015   KARACHI-HIGH-COURT-SINDH

ABDUL REHMAN alias JUMAN VS State

Ss. 9(c) & 21—Criminal Procedure Code (V of 1898), S. 156(2)—Search and investigation—Non-observance of the provisions—Defence had objected that in the present case, the Investigating Officer was the complainant as well as witness of the occurrence and recovery—Effect—Police Officer was not prohibited to be the complainant if he was a witness to the commission of offence and also to be the Investigating Officer, so long as it did not in any way cause prejudice to the accused person.

2018  PCrLJ  829   KARACHI-HIGH-COURT-SINDH

GHULAM SHABIR SHAR VS State

1. 9(c)—Possession of narcotic drugs—Appreciation of evidence—Complainant (police) allegedly apprehended accused and seized from his hand the polythene bag containing four pieces of Charas weighing two kilograms; same was sealed at the spot and memo of arrest and recovery was prepared in presence of witnesses, and then the FIR was lodged at the Police Station—Investigating Officer prepared memo of site inspection, recorded statement of witnesses under S. 161, Cr.P.C. and sent the case property to Chemical Examiner for analysis—Report of Chemical Examiner showed that parcel was found in three seals packets containing four brown coloured pieces of Charas—Case property was also produced before Trial Court during evidence of prosecution witnesses—All the three prosecution witnesses implicated accused being apprehended at specific day, time and place and being in possession of Charas—None of the prosecution witnesses had any enmity with the accused nor was it ever suggested—Credibility of recovery of Charas was attached with memo of recovery even if the sealed parcel was stated to have been signed by the witness at Police Station—Defence plea of accused that accused was arrested seven days before the occurrence and upon non-fulfilment of demand of illegal gratification he was implicated falsely was of no force because neither the accused nor any of his relatives made any complaint to Police nor any application was moved before the court regarding his illegal detention and the person who allegedly arrested accused did not belong to alleged wing of Police—No misreading, non-appreciation of evidence, illegality or factual infirmity existed in the impugned judgment— Appeal was dismissed accordingly.

2018  PCrLJ  600   KARACHI-HIGH-COURT-SINDH

SHERAZ VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c) & 51—Possession of narcotic drugs—Bail, refusal of—Accused was arrested red-handed along with charas (narcotic) while he was driving a vehicle—Person on driving seat of the vehicle could be held responsible for transportation of the narcotics having knowledge of the same because possession could be joint one with two or more persons—Discretion under S. 497, Cr.P.C. might not be exercised liberally in case of huge recovery of narcotics—Bail could not be granted to an accused person charged with an offence under Control of Narcotic Substances Act, 1997 or under any other law relating to narcotics where the offence was punishable with death—High Court declined grant of bail.

2018  PCrLJ  473   KARACHI-HIGH-COURT-SINDH

BABAR JAMEEL VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c), 14, 15 & 51—Possession of narcotic drugs, aiding, abetment or association in narcotic offences—Bail, refusal of—Accused was arrested red-handed with possession of Diazepam tablets (psychotropic substance)—Chemical Examination Report supported the prosecution case—Recovery of Diazepam tablets was witnessed by Police Officials who were as good witnesses as any other person—Police had no ostensible reason to falsely implicate accused—Case of accused was hit by prohibition contained in S. 51, Control of Narcotic Substances Act, 1997—Diazepam was mentioned in S. 2(za) at Serial No. 24 of Schedule of Control of Narcotic Substances Act, 1997 which came within the definition of “psychotropic substance” and was prohibited to possess and transport—Alleged offence fell under section 9(c) Control of Narcotic Substances Act, 1997 which was punishable with life imprisonment—Accused had failed to substantiate his claim that alleged recovered Diazepam tablets was for exceptions as provided in law, therefore, no case of further inquiry was made out—Bail was refused accordingly.

2018  PCrLJ  257   KARACHI-HIGH-COURT-SINDH

LIAQUAT ALI VS State

1. 9 (c)— Possession of narcotic substance—Appreciation of evidence—Police officials as sole recovery witnesses—Competency of—Principles—Prosecution case was that 59 kilograms charas was recovered from the vehicle of the accused persons—Contention was that prosecution witnesses being police officials their evidence required independent corroboration—Validity—Mere fact that prosecution witnesses were police officials, by itself could not be considered a ground to discard their statements—Police officials were as good witnesses as private persons of the society—Reluctance of general public to become witness in such like cases was a judicially recognized fact and there was no option left but to consider the statement of an official witness—No legal bar had been imposed in that regard.

2018  PCrLJ  257   KARACHI-HIGH-COURT-SINDH

LIAQUAT ALI VS State

1. 9(c)—Control of Narcotic Substance (Government Analysts) Rules, 2001, Rr. 4 & 5—Interpretation, scope, and application of Rr.4 & 5, Control of Narcotic Substances (Government Analysts) Rules, 2001—Contention of the accused was that charas was sent to the Chemical Examiner after nine days—Validity—Rules 4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 had placed no bar on the Investigating Officer to send the samples beyond seventy two hours of the seizure—Language employed in the Rules and the effects of its breach provided therein had made the Rules directory and not mandatory—Said Rules could not control the substantive provisions of the Control of Narcotic Substances Act, 1997 and be applied in such a manner that its operation should not frustrate the purpose of the Act under which these were framed—Failure to follow the Rules would not render the search, seizure and arrest under the Control of Narcotic Substances Act, 1997 an absolute nullity and made the entire prosecution case doubtful, except for the consequence provided in the rules—Substantial compliance was sufficient in directory provisions and even where there was no compliance at all, the act would not be invalidated by such non-compliance if the act otherwise was done in accordance with law—Delay otherwise in sending the incriminating articles to the concerned quarter for expert opinion could not be treated fatal in the absence of objection regarding the same having been tampered with or manipulated—In the present case, there was no allegation of the accused persons that charas was tampered with during the process of its transit—Accused persons should have to take such plea before the Trial Court which was not done—Appeal against conviction was dismissed in circumstances.

2018  PCrLJ  257   KARACHI-HIGH-COURT-SINDH

LIAQUAT ALI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Ocular account—Allegation against accused persons was that two bundles of charas were recovered from their vehicle, which was weighed and found to be 59 kilograms—Ocular account was furnished by three witnesses including the initiator—Prosecution witnesses had narrated convincing chain of events, which was largely corroborated either by witnesses or documents—Investigating Officer sent entire case property to the Chemical Examiner and received positive chemical report—Circumstances established on the basis of evidence that accused was driving the vehicle at the time of arrest while co-accused was sitting with him—Knowledge and awareness would be attributed to the accused as he was the driver of the vehicle and co-accused could not be absolved from his responsibility as he was sitting with the driver—Co-accused could not explain as to why he was sitting with driver in the private vehicle—Facts and circumstances of the case connected the accused persons with the commission of offence—Appeal against conviction was dismissed in circumstances.

2018  PCrLJ  257   KARACHI-HIGH-COURT-SINDH

LIAQUAT ALI VS State

1. 9(c)—Transportation of narcotics—Responsibility of driver of the vehicle—Scope—Person, who was on driving seat of the vehicle was responsible for transportation of the narcotics.

2018  PCrLJ  257   KARACHI-HIGH-COURT-SINDH

LIAQUAT ALI VS State

Ss. 9(c) & 29— Qanun-e-Shahadat (10 of 1984), Art. 122—Possession of narcotics—Appreciation of evidence—Burden of proof—Allegation against the accused persons was that 59 kilograms of charas was recovered from their vehicle—Positive Chemical Report had been produced in the evidence, which proved that substance recovered from the secret cavity of the vehicle of the accused was charas—Prosecution therefore, had discharged its initial onus of proving that substance recovered from secret cavity of vehicle was charas—Accused persons had not produced any evidence to rebut the presumption, against them under S. 29 Control of Narcotic Substances Act,1997—Circumstances established that prosecution proved its case against the accused persons beyond reasonable doubt—Appeal against conviction was dismissed in circumstances.

2018  PCrLJ  227   KARACHI-HIGH-COURT-SINDH

MUHAMMAD LAIQ alias SUHNO VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4—Possession of narcotic drugs—Bail, refusal of—Three kilograms of charas (narcotic) was allegedly recovered from the accused—Punishment provided under clause (c) of S. 9, Control of Narcotic Substances Act, 1997 was either death, imprisonment for life or imprisonment for a term which might extend to fourteen years with fine which might upto one million rupees—Entire charas was sent to Chemical Examiner for analysis and his report was in positive—Investigation was conducted by officer of local police against whom no allegation of enmity was levelled—Association of any private witness was not the requirement of Control of Narcotic Substances Act, 1997 in view of S. 25 of the said Act which had excluded applicability of S. 103, Cr.P.C.—Non-mentioning of number of slabs of narcotic substance in FIR and memo of recovery was not fatal to prosecution case when number of packets were mentioned—Delay of a few days in sending case property to Chemical Analyzer was of no consequence for the reasons that R. 4 of Control of Narcotic Substance (Government Analysts) Rules, 2001 which prescribed seventy two hours for sending contraband articles to Chemical Analyzer was directory and not mandatory—Sentencing policy was not applicable at bail stage—Sufficient material was available on record to connect accused with commission of alleged offence—Bail was refused accordingly.

2018  PCrLJ  66   KARACHI-HIGH-COURT-SINDH

NAEEM AKHTAR alias ALI HAIDER VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c), 14 & 15—Possession of narcotic drugs, aiding, abetment or association in narcotic offences—Bail, refusal of—One hundred kilogram charas (narcotic) was recovered from the car and subsequently on pointation of accused, a total of three thousand, two hundred and thirteen kilogram charas was recovered from a warehouse—Such huge quantity of narcotics palpably could not be foisted upon the accused—Delay in registration of FIR was properly explained in the FIR that showed that in recovering the charas kept in different packets and in sorting it out and finally sealing it, time was consumed—Delay in conclusion of trial occurred due to change of advocates by the accused and their absence on dates of hearing when the witnesses were present—Non-compliance of directions by High Court to conclude trial within a specific period could not be considered as valid ground to grant bail to accused—Bail was refused accordingly.

2018  MLD  1979   KARACHI-HIGH-COURT-SINDH

RAJAB ALI VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that police party spotted a rickshaw and motioned to stop—Police Officer identified the driver as accused—Driver, after leaving the rickshaw, ran away in the adjoining street—Said police Officer ran after him and while running, a black colour packet fell down from the apparel of the accused who, however, succeeded in escape—Said packet was picked up and opened wherein charas was recovered, similar packet was also found concealed in the spare wheel of rickshaw—Recovered quantity of charas was weighed and found 2-kilo and 30-grams, from which a sample of 10-grams was separated for chemical analysis and the sample as well as case property were sealed on the spot—Record showed that Police Officer/witness not only claimed to have identified the accused by his name, his parentage as well as residential address, but surprisingly the final report was submitted against the accused under S.512, Cr.P.C. without describing any effort of arrest of the accused—Said conduct on part of the Police Officer/witness was quite strange and even was against the implied duties—Complainant in his examination-in-chief identified the accused present in the court as the same but in cross-examination, he admitted that he did not know the accused prior to the incident and he did not see the accused sitting in the rickshaw and he had seen the accused from his back side, while he was running—Identification of accused by the complainant in such situation was based on hearsay evidence, which was not reliable and the same did not come under the definition of res-gestae—Complainant stated in his examination-in-chief that only 10-grams of charas was separated as sample for sending to Forensic Science Laboratory for chemical analysis—Such sampling first required recovery of narcotics from possession of the sent-up accused and only then a claim of conviction could be examined—Record showed that a person who was running a brothel house had lodged FIR against the accused—After lodging the said FIR, the wife of the accused had lodged FIR against the complainant and said Police Officer—Such circumstances suggested that Police Officer had a motive to involve the accused—Specific allegation of animosity and ill-will was alleged by the accused against the said Police Officer, who admitted to have been prosecuted on complaint of wife of the accused—Such a witness, in circumstances, must have associated private witnesses for alleged recovery particularly when the alleged place of incident was thickly populated area—Admitted enmity/annoyance between accused and the star witness/ Police Officer, safe escape of accused from scene, falling of packet from apparel of accused and recovery of another packet, concealed in spare wheel of rickshaw, were the circumstances, which brought serious clouds over testimony of such interested witness and made recovery doubtful—Recovered quantity of charas was shown as 2-kilo and 30-grams, but only a small sample of the same was sent for chemical analysis—Prima facie, in the present case, the process of sampling was not in accordance with law—Conduct of the star witness appeared to be not consistent and probable, hence no conviction could legally sustain on such testimony—Investigating Officer had admitted in his cross-examination that he had not tried to examine any private person of the locality at the time of site inspection, did not prepare the memo of site inspection, did not try to locate the owner of rickshaw nor the said rickshaw was produced in the court as case property—Delay of five days in sending the allegedly recovered material to Office of Chemical Examiner and there being nothing on record to ensure safe custody of such property during intervening period, prosecution had failed to prove the case against the accused beyond any shadow of doubt, benefit of which, would resolve in favour of accused—Appeal was allowed in circumstances and accused was acquitted by setting aside conviction and sentences recorded against him by the Trial Court.

2018  MLD  1971   KARACHI-HIGH-COURT-SINDH

REHMAN SHER VS State

Ss. 6, 9(c), 25 & 29—Possessing and trafficking narcotics—Appreciation of evidence—Twenty kilograms of charas was recovered from the diggi of taxi, which was in full control of accused being its driver—Quantity of narcotic exceeding ten Kilograms, case fell under Cl.(c) of S.9 of Control of Narcotic Substances Act, 1997, for which death penalty or imprisonment for life had been provided—Record of taxi in question had shown that registration number affixed on the taxi was false one which had been allotted to a truck—Case of accused fell within four corners of S.6 of Control of Narcotic Substances Act, 1997—No enmity, ill-will or grudge had been alleged against prosecution witnesses—Sufficient material had been brought by the prosecution on the record, including report of Chemical Examiner relating to positive report of narcotic substance—Section 25 of Control of Narcotic Substances Act, 1997 had excluded the application of S.103, Cr.P.C.—Alleged recovery was witnessed by the Excise Officials and accused had failed to bring anything on record that he had falsely been roped in the offence because of any rivalry with the official witnesses—Person who was on driving seat of the vehicle, would be held responsible for transportation of narcotic having knowledge of the same—Evidence led by the prosecution, was in line with the case with no material variation or lapses—Memo of recovery and the FIR, stood fully corroborated and proved to the satisfaction of the Trial Court—No defence evidence at all had been adduced—Prosecution having successfully proved its case against accused, Trial Court had rightly convicted him.

2018  MLD  1835   KARACHI-HIGH-COURT-SINDH

SHOAIB ALI VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Benefit of doubt—Complainant did not associate any private person to witness the recovery proceedings though he had sufficient time to collect and associate an independent person to act as Mashir in the case—Overwriting was noticed in the Mashirnama of arrest and recovery in respect of date of incident; some writing over the Roznamcha entry No.3 had also been noticed—Recovered charas was sent to the Chemical Examiner one day after its recovery—Prosecution, neither produced any entry of Malkhana nor examined Head Moharrar of Malkhana in respect of safe custody of narcotic—Person by whom sample was sent to chemical examiner was not examined—Trial Court overlooked all the material aspects of the case—Prosecution case was full of discrepancies, lacunas, contradictions and against the settled principles—Several circumstances existed in the case which had created doubt in the prosecution story—Prosecution had not discharged its liabilities—Benefit of doubt was extended to accused and conviction and sentence awarded to him were set aside and he was ordered to be released forthwith.

2018  MLD  1396   KARACHI-HIGH-COURT-SINDH

SHAKEEL alias HAKLA VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that police received spy information that two persons were sitting in suspicious manner at the place of incident—Police proceeded to the place of incident where the accused while seeing the police party started firing upon them, who also fired in self-defence—Police had apprehended the accused, while co-accused ran away—During search of the accused, one 12-bore repeater with five live rounds and a shopper were recovered from his possession, which contained 225 rods of charas/hashish weighing 2980 grams wrapped in blue plastic—Prosecution witness admitted that charas was lying in the street near accused and thereafter admitted that charas was recovered from the house of co-accused—Record showed that it was a case of spy information, and place of arrest was thickly populated area—Presence of the private persons had also come on record but complainant made no effort to associate any independent mashir to give more credibility to the evidence of the police official—Material contradictions in the evidence of the prosecution witnesses were noticed with regard to the availability of the private persons at the time of arrest and recovery—Record transpired that there was no evidence that charas was kept in safe custody from the time when it was recovered until it was sent for chemical examination—Evidence of witnesses showed that charas was handed over to police official but said official had not been examined at trial—No evidence was available to show that recovered charas was deposited to Malkhana—No evidence was available to show safe custody of charas in Malkhana and its safe transit to the Chemical Examiner—Overwriting in the date of entry and in the mashirnama of arrest and recovery with regard to the weight of the charas was noticed—If the chemical report was proved positive, even then the same was of no assistance to the prosecution in circumstances—Circumstances established that prosecution had failed to prove its case beyond shadow of doubt, benefit of which would resolve in favour of accused—Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

2018  MLD  1329   KARACHI-HIGH-COURT-SINDH

Mst. MARVI BHATTI VS State

6. 9(c)—Possession of narcotic substance—Appreciation of evidence—Benefit of doubt—Prosecution case was that 3250-grams charas was recovered from possession of accused contained in a black shopping bag—Evidence of the complainant showed that police party departed from police station on patrol at 6.00 a.m.—Prosecution produced Roznamcha Entry, but the same did not bear any date—Complainant stated that following their departure from the police station, the police party went to Cinema Chowk, where they stayed half an hour—Police party then went to National Highway road, where they stayed half an hour—Police party, thereafter, came from bypass and stopped their mobile for half an hour, received spy information that one lady having charas in a black shopper was standing at the bus stop, and on that basis they proceeded towards the bus stand—Despite the stops/intervals, the police party was shown to have been in place and apprehended the accused at 7.20 a.m., having also called for the lady constable after receiving the tip-off and awaited her arrival prior to heading for the bus stand—Complainant did not say that the identity of the lady had been revealed to him by the informer—Complainant deposed that the memo of arrest and seizure and the mashirnama of place of incident were prepared by him; however, it was evident that the handwriting of both the said documents was different, which was not explained plausibly—Witness conceded in his cross-examination that the handwriting of both the documents was different—Memo. of arrest and seizure was silent as to the manner in which the charas allegedly recovered from the accused was sealed—Nothing was available on record to show as to how case property was kept/handled prior to sending sent to the Chemical Examiner—Prosecution had not been able to establish that after the alleged recovery, the substance so recovered was kept in safe custody and safely transmitted to the office of the Chemical Examiner without being tampered or replaced while in transit—Report of Chemical Examiner showed that one of the pieces of charas received for analysis was said to have been wrapped in a plastic “panni”, which was not mentioned in the memo of arrest and seizure—Complainant admitted that one small piece of chars was wrapped in “panni”, whereas the witness contrarily stated that the charas was not wrapped in other plastic “panni”, which cast doubt on the matter—Circumstances established that many discrepancies were available on record, which created doubt about the veracity of the prosecution case—Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

2018  MLD  1322   KARACHI-HIGH-COURT-SINDH

ABDUL SATTAR VS State

Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 25—Possessing and trafficking narcotics—Bail, refusal of—Accused was arrested at the spot and huge quantity of charas (3000 grams) was recovered from his possession, which being costly, could not be foisted—Report of Chemical Examiner revealed that recovered property was charas—Accused, had failed to show enmity with the Police or any reason for his false implication in the case—Witnesses in their statements under S.161, Cr.P.C., had fully supported the version of FIR—Offence for which accused had been charged fell within restrictive clause of S.497(1), Cr.P.C.—Application of S.103, Cr.P.C. in such cases had been excluded by S.25 of the Control of Narcotic Substances Act, 1997—No case for exercise of discretion in favour of accused having been made out, bail application being devoid of merits, was dismissed.

2018  MLD  1311   KARACHI-HIGH-COURT-SINDH

UMED ALI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that five packets containing five kilograms of charas were recovered from the possession of the accused—Out of the said contraband item 10-grams from each packet were separated for sending the same to the Chemical Examiner for analysis and report—Record showed that present case was a case of spy information and the police had plenty of time to call independent mashirs from thickly populated area which they completely failed to do—Said factor would have given credibility to their case—Time of the arrival and the FIR were the same which was not believable as there ought to be at-least a 10-15 minutes gap in arriving and registering the FIR—Recovery and arrest witness stated that accused told that he purchased the narcotic from a person, but statement of said person was not recorded by the police—Record transpired that in one packet, there were one big piece and three small pieces yet no part of the small pieces were sent for chemical analysis, which made the recovery doubtful—Circumstances established that prosecution had failed to prove its case against the accused beyond a reasonable doubt, benefit of which would resolve in favour of accused—Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

2018  MLD  1311   KARACHI-HIGH-COURT-SINDH

UMED ALI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Non-safe custody of recovered substance—Effect—Prosecution case was that five packets containing five kilograms charas were recovered from the possession of accused—Out of the said contraband item 10-grams from each packet were separated for chemical analysis—Record showed that there was no evidence that the recovered narcotics was kept in safe custody between the time of its recovery and sending it to the Chemical Examiner—No Malkhana entry was produced and the keeper of the Malkhana was not examined nor any person concerned to the safe custody and safe transit of the contraband was produced—Chemical report, in circumstances, could not be relied upon.

2018  MLD  1257   KARACHI-HIGH-COURT-SINDH

The STATE/ANTI-NARCOTICS FORCE  VS MUHAMMAD BUX

1. 9(c)—Civil Procedure Code (V of 1908), S.103—Possession of narcotics—Appreciation of evidence—Appeal against acquittal—Prosecution case was that ten bundles of charas each weighing one kilogram were recovered from the bag of accused—Record showed that it was a case of spy information—Evidence of complainant revealed that at the time of arrest of the accused so many people were there, despite that, complainant did not bother to associate any independent person from the place of incident to witness the arrest and recovery proceedings—Provisions of S.103, Cr.P.C. were not attracted in case of personal search of the accused in narcotics cases; however, where alleged recovery was made in a hotel and people were available there, omission to secure independent mashirs, particularly, in the case of spy information, could not be brushed aside lightly by the Court—Number of contradictions existed between the statements of witnesses, which were material and fatal to the prosecution case—Judgment of the Trial Court was based upon sound reasons, which was neither perverse nor arbitrary—High Court would interfere only if the judgment was arbitrary, capricious or against the record—Judgment of Trial Court did not suffer from any mis-reading and non-reading of the evidence—Appeal was dismissed in circumstances.

2018  MLD  1237   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AAMIR alias PAPPA VS State

1. 9(c)—Explosives Act (IV of 1884), Ss.4 & 5—Sindh Arms Act (V of 2013), S.23(1)(a)—Possessing and trafficking narcotics—Recovery of explosive material and arms—Appreciation of evidence—Benefit of doubt—Case of prosecution was that Police had recovered one bomb, one .32 bore revolver containing four bullets and 2200 grams charas from possession of accused—First Information Report registered in that respect was cancelled under “C” class and said summary had been approved by the concerned Magistrate on the ground that Bomb Disposal Officer had furnished report that no bomb/explosive substance was found—Accused who was challaned under S.23(1)(a) of Sindh Arms Act, 2013 and Trial Court after trial had acquitted him from the charge of recovery of revolver along with four live bullets on the basis of material contradictions in the evidence of prosecution witnesses—Benefit of doubt was extended to accused and he was acquitted of the charge of recovery of revolver as well as of bullets—Prosecution had failed to bring home guilt of accused without reasonable shadow of doubt—Police also recovered charas and its sample was sent to Chemical Examiner after about two days of its recovery—Prosecution had failed to establish safe custody of charas at Police Station—Prosecution neither produced any record showing that property was deposited in Malkhana nor had examined Moharrir or the person who deposited the case property in the office of Chemical Examiner—Prosecution having failed to prove its case against accused, conviction and sentence recorded by the Trial Court, were set aside extending him the benefit of doubt and he was acquitted of the charge.

2018  MLD  1025   KARACHI-HIGH-COURT-SINDH

SADAM HUSSAIN VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Safe custody of recovered substance—Prosecution case was that 1300-grams charas was recovered from the possession of accused—Out of the said contraband item 100-grams were separated for chemical analysis—Record showed that there was an unexplained delay of seven days from the recovery of charas to sending it to the Chemical Examiner—Nothing had come on record to show that the recovered charas was kept in safe custody during said period—No evidence was available to show that the charas was handed over to Incharge Malkhana as no copy of the Malkhana entry was produced—Incharge Malkhana was not examined to prove the safe custody of the charas throughout the said seven days—Witness who sent the sample for chemical examination had not been examined by the prosecution in respect of safe custody or safe transit of the charas—Said aspect showed that sample might have been tampered with/interfered with after its recovery and before it was sent to the Chemical Examiner, which would mean that the report of the Chemical Examiner could not be safely relied upon—Positive report of the Chemical Examiner would not assist the prosecution case in absence of proof of safe custody of the contraband.

2018  MLD  1025   KARACHI-HIGH-COURT-SINDH

SADAM HUSSAIN VS State

1. 9(c)—Constitution of Pakistan, Art. 10-A—Possession of narcotic—Appreciation of evidence—Benefit of doubt—Fair trial—Prosecution case was that police party upon receiving spy information reached at the place of occurrence and apprehended the accused and recovered 1300-grams charas from his possession—Out of the said contraband item 100-grams were separated for chemical analysis—Despite having spy information and the alleged place of incident being a busy area apparently no efforts had been made by the police to pick up an independent person of the locality to witness the arrest and recovery proceedings which casted doubt on said arrest and recovery—No effort was made to send a fake purchaser to the accused to see if he was actually selling the narcotic—In the present case, it was shown that counsel for the accused had no knowledge/experience of the law, which amounted to violation of the right of accused of fair trial and due process—Circumstances established that prosecution had failed to prove its case against the accused beyond reasonable doubt, benefit of which would resolve in favour of accused—Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

2018  MLD  794   KARACHI-HIGH-COURT-SINDH

LUTUF ULLAH VS State

Ss.497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 25 & 51—Possession of Narcotic Substance weighing 3 K.G—Bail, refusal of—Rule of consistency—Applicability—Scope—Accused persons were allegedly found seated in car with narcotic substance hidden beneath the front seat of the car—Contention of accused that co-accused was allowed bail was beside the mark as accused was arrested red-handed with possession of narcotic—Recovery was duly witnessed by the police officials who were as good witnesses as any other person and who had no reason to falsely implicate the accused—Section 25 of Control of Narcotic Substances Act, 1997 excluded the applicability of S. 103, Cr.P.C.—Case of the accused was hit by the prohibition contained in S. 51 of the Control of Narcotic Substances Act,1997 , therefore , no case of further inquiry was made out—Rule of consistency was not applicable as accused had failed to produce any material to suggest that he was falsely implicated in the case—Mere statement of accused that he had been implicated by the Anti-narcotic Force for non-fulfilling of their illegal demand was not sufficient—Bail was refused accordingly.

2018  MLD  422   KARACHI-HIGH-COURT-SINDH

Syed WARIS KHAN VS State

Ss. 6 & 9(c)—Criminal Procedure Code (V of 1898), Ss. 340 (1) & 537—Constitution of Pakistan, Art. 10-A—Federal Capital and Sindh Courts Criminal Circulars, Chapter VII, Circular 6—Possession of narcotic drugs—Appreciation of evidence—Accused’s right to be defended by counsel—Ten packets (10 Kg) of charas was allegedly recovered from rear seat of rickshaw driven by accused—Offence under S.9(c) of Control of Narcotic Substances Act, 1997 was punishable for death or imprisonment for life therefore accused was required to be defended by a counsel and trial to be conducted in presence of his counsel—If accused was unable to engage counsel, Trial Court would have provided facility of a counsel on State expenses before framing of charge—In the present case, charge and examination-in-chief of one prosecution witness was recorded in absence of counsel for the accused—Trial in absence of counsel for the accused was an illegality which could not be cured under S.537, Cr.P.C.—One of the duties of Trial Court was to see that accused was represented by a qualified legal practitioner in the case involving capital punishment—Trial Court did not perform its function diligently so as to protect the rights of the accused in the case involving capital punishment—Case was remanded to Trial Court for re-trial after framing fresh charge in presence of the advocate for accused—Appeal was allowed accordingly.

2018  MLD  193   KARACHI-HIGH-COURT-SINDH

SARWAR alias GHULAM SARWAR VS State

28. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that 1050-grams hashish (charas) in a plastic bag was recovered from the possession of accused-appellant—Record showed that it was a case of spy information, and it was mentioned in the FIR that complainant left the police station after placing entry in the daily diary of the police station—Said daily diary’s entry was an important piece of evidence, which showed the movement of police party before arresting the accused but the same was not produced—Complainant deposed that only a sample of 10-grams of hashish (charas) was sent to the Chemical Examiner which the report of Chemical Examiner showed that sample containing 15-grams of substance was received on 21-4-2003—Incident allegedly had taken place on 28.1.2003, and no explanation was given about the late sending of the sample—Recovery witness deposed that place of incident was a thickly populated area, but the complainant being Police Officer did not try to associate a private witness—Said witness stated that he went with the complainant after the arrest of the accused to the police station, where he stayed for half an hour and then returned to his Police Post—Complainant stated that he sent the witness to his Police Post directly from the place of incident and he returned to the police station with accused and case property—Said contradictions were not minor—Said circumstances had created serious doubt in the prosecution case, benefit of which would resolve in favour of accused-appellant—Accused was acquitted by setting aside conviction and sentence recorded by Trial Court.

2018  MLD  129   KARACHI-HIGH-COURT-SINDH

ASGHAR ALI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c), 14 & 15—Possession of narcotic drugs, aiding, abetment or association in narcotic drugs—Bail, grant of—Further inquiry—No private witness was associated in spite of prior spy information—Representative part of recovered narcotic for chemical analysis was sent with delay—Accused was behind the bars since nine months and was no more required for any purpose of investigation—Prosecution had not claimed that accused was previously involved in same nature of cases—All the prosecution witnesses were Police Officials hence there was no question of tampering with the evidence—Prima facie, accused had succeeded to bring his case within purview of subsection (2) of S.497, Cr.P.C.—Bail was granted accordingly.

2018  YLRN  285   KARACHI-HIGH-COURT-SINDH

Syed FAYYAZ HUSSAIN GILANI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9—Bail, refusal of—Bail on medical ground—Principles—Accused contended that he was entitled to bail on medical ground as he was suffering from severe heart disease as shown in the medical report—Prosecution had neither challenged composition of Medical Board nor its findings, but had submitted to send the accused to hospital until the completion of trial—Held, accused, being innocent until proved guilty, had the right to proper medical treatment to safeguard his life even if he was facing the trial of most heinous crimes—Court was to ensure that the life of the accused was preserved whilst he was in incarceration, if he was suffering from serious life threatening ailment—Test for granting bail on medical ground would be (a) the sickness or ailment with which the accused was suffering was such that the same could not be properly treated within premises of jail and (b) that some specialized treatment was needed and (c) continued detention of accused in jail was likely to affect his capacity or was hazardous to his life—Satisfaction of the Court for the purpose would be based on the medical report—In the present case, one of the doctors of Medical Board who was called to appear to confirm the medical report which showed that the accused had history of severe cardiac problem and his health condition was such that he could suffer cardiac-arrest at any time which would require heart surgery—Prison hospital, lacking emergency medical aid, would be detrimental to the health of accused and hazardous to his life and could result in his death unless prompt medical treatment was provided which was not available in jail—High Court directed to move the accused from prison to the cardiac hospital where he would remain under guard until the completion of his trial—Bail petition of accused was dismissed, in circumstances.

2018  YLRN  240   KARACHI-HIGH-COURT-SINDH

REHMATULLAH VS State

Ss. 9(c) & 25—Possessing and trafficking narcotics—Appreciation of evidence—Both the accused persons, were responsible for transportation of huge quantity of charas having knowledge of the same in their vehicle—Nowhere it was mentioned or suggested by both the accused that vehicle in question, was either hired by someone else or loaded by the labourers and that they had no knowledge about the availability of narcotic substance in it—Applicability of S.103, Cr.P.C. in the narcotic cases had been excluded and non-inclusion of any private witness was not a serious defect to vitiate the conviction—Excise Officials, were competent and their evidence could not be discarded only for the reasons that they were Excise Officials—Said officials had furnished straight forward and confidence inspiring evidence and there was nothing on record to show that they had deposed against the accused persons maliciously or out of any animus—No proof of enmity with the complainant and the prosecution witnesses, having been brought on record, in absence thereof, competence of prosecution witnesses being officials, was rightly believed—Chemical Examiner’s report regarding charas, was sufficient to prove that the substance recovered from accused persons could be used to cause intoxication—All witnesses had deposed in line to support the prosecution case and despite cross-examination at length, defence had failed to make any dent in the prosecution case or to extract any material contradictions fatal to prosecution case—Prosecution had succeeded to prove the guilt of accused persons and accused persons, had failed to point out any material illegality or infirmity committed by the Trial Court—Impugned judgment, did not call for any interference—Appeal was dismissed being devoid of merits.

2018  YLRN  240   KARACHI-HIGH-COURT-SINDH

REHMATULLAH VS State

Ss. 9(c) & 29—Possessing and trafficking of narcotics—Presumption—Where the prosecution prima facie proved recovery from accused, the court was required to presume that accused was guilty, unless he proved that he was not in possession of such drugs—Burden then would be upon the accused to establish his innocence and absolve himself from the allegations regarding recovery of narcotic substances; while the prosecution had only to show by evidence that accused was in custody or directly concerned with recovered narcotic substance—Recovered charas from the secret cavities of truck, stood established, hence it was the turn of accused persons to prove the contrary—Without such proof, accused would be held guilty by virtue of S.29 of the Control of Narcotic Substances Act, 1997.

2018  YLRN  237   KARACHI-HIGH-COURT-SINDH

AYAZ ALI VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of five Kilogram narcotic substance (Charas)–Bail, refusal of—Possibility of foisting narcotic—Scope—Accused contended that police was inimical to him as he had already filed petitions against the police—Complainant/police contended that huge quantity of such costly narcotic substance, could not be foisted—Deeper appreciation of evidence was required to ascertain the defense plea, regarding mala fide of police, which was not possible at bail stage—Police officials were as good witnesses as any other person, unless something contrary was established against them during the trial—Foisting of huge quantity of narcotic substance upon the accused required deeper appreciation of evidence which was not allowed at the bail stage—Forensic Science Laboratory report had confirmed that recovered contraband was Charas—Case of the accused fell under the prohibitory clause of S. 497 Cr.P.C.—Bail was refused in circumstances.

2018  YLRN  152   KARACHI-HIGH-COURT-SINDH

OSHAQ ALI JAMRO VS State

5. 9(b)—Possession of narcotic substance—Appreciation of evidence—Benefit of doubt—Prosecution case was that 200-grams charas was recovered from possession of accused contained in polythene bag—Ten grams was separated, as sample for chemical examination—Mashirnama of arrest and recovery was prepared at the spot—Ocular account was furnished by two witnesses including complainant—Record revealed that complainant and witness had deposed that they tried to associate private mashirs, but private persons were not available, made dishonest improvements in the prosecution case as nothing alike was mentioned either in the mashirnama of arrest and recovery or even in FIR—Witnesses had stated that the alleged charas was in several pieces, but the same was not mentioned in the masirnama or even in the FIR—Alleged charas was shown to have been recovered on 5.2.2009, but the Chemical Examiner Report showed that the parcel was received by the office of the Chemical Examiner on 18.2.2009, after twelve days of the alleged recovery—No plausible explanation was furnished from the prosecution as to why such delay was caused in sending alleged charas to the Chemical Examiner—Nothing could be brought on record to show that the charas remained in safe custody during the period spent in dispatching the alleged charas to the Chemical Examiner—Material discrepancies and infirmities, rendered the prosecution case highly doubtful, benefit of which would resolve in favour of accused—Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

2018  YLRN  126   KARACHI-HIGH-COURT-SINDH

MAJID BALOCH VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(b)—Possession of narcotic drugs—Bail, refusal of—Accused’s bail application before Trial Court had already been dismissed by a well-reasoned order which required no interference—Question of amount of sample of norcotic substance for examination of Chemical Examiner could not be gone into at bail stage as the same required a deeper appreciation of evidence—Accused was caught red-handed at the airport attempting to smuggle heroin in an ingenious manner—Narcotic was concealed in the baggage at the Airport, thus there was no chance that same was foisted on accused—No enmity had been alleged between customs officials and accused—Chemical report was positive—Accused was not entitled to bail in circumstances— Bail was refused accordingly.

2018  YLRN  123   KARACHI-HIGH-COURT-SINDH

Dil MURAD VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25—Possession of narcotic drugs—Bail, refusal of—Section 25, Control of Narcotic Substances Act, 1997 expressly excluded the provision of S.103, Cr.P.C. in cases falling within the ambit of said Act—Questions of delay in sending narcotics and as to whether the same were not tampered with would be determined at trial—Police Officer was not prohibited under the law to be complainant if he was a witness to the commission of offence and also to be an Investigating Officer, so long it did not in any way prejudiced the accused person—Entire seizure of narcotic was sent to chemical examiner who, in his report had mentioned that a sample from each piece was tested which was tested positive to be charas (narcotic)—No case for admitting the accused to bail had been made out—Bail was refused accordingly.

2018  YLRN  106   KARACHI-HIGH-COURT-SINDH

ADAM MARRI VS State

28. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that a polythene bag contained three pieces of charas 02 big and 01 small weighing 1100-grams was recovered from the possession of accused-appellant—Evidence of police constable revealed that 02 small pieces and 01 big piece of charas was recovered from the possession of accused—Report of Chemical Examiner showed that parcel contained 02 big piece and 01 small piece of charas and prosecution had no explanation for such ambiguity—Allegedly, charas was recovered from the possession of the accused on 28.06.2012 but it was dispatched to the Chemical Examiner on 09.07.2012 for analysis—Positive report of Chemical Examiner was of no help in view of delay in sending the narcotic to the Chemical Examiner—No evidence had been produced by the prosecution to establish that narcotic was kept in safe custody at police station during the said period—Police official had not deposed anything regarding safe custody of charas at Malkhana; no entry regarding its safe custody at Malkhana had been produced before the Trial Court—Safe transit of the material to Chemical Examiner from police station had not been proved—Prosecution had alleged that charas was transmitted to the Chemical Examiner through police constable but said constable had not been examined to prove the safe transit of charas—Circumstances had created serious doubt in the prosecution case, benefit of which would resolve in favour of accused—Accused was acquitted in circumstances by setting aside conviction and sentence recorded by Trial Court.

2018  YLRN  50   KARACHI-HIGH-COURT-SINDH

Haji GHULAM HYDER VS State

20. 9(b)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that 500-grams of charas in a plastic shopper was recovered from the possession of accused-appellant—Record showed that it was a case of spy information, therefore, the complainant had sufficient time to call independent mashirs to witness the recovery proceedings, but it was not done—Allegedly, a piece of charas of 500 grams was recovered from the possession of accused on 20.3.2008 but it was sent to the Chemical Examiner for analysis on 15.4.2008—Delay in sending the charas to the Chemical Examiner had not been explained by the prosecution—Three pieces of charas were produced during trial whereas only one piece was recovered from the possession of accused-appellant—None of the prosecution witnesses had stated as to what happened to the recovered substance and with whom the case property had been deposited for safe custody—Overwriting in the arrival and departure entries were found—Said circumstances had created serious doubt in the prosecution case, benefit of which would resolve in favour of accused-appellant—Accused was acquitted by setting aside conviction and sentence recorded by Trial Court.

2018  YLRN  50   KARACHI-HIGH-COURT-SINDH

Haji GHULAM HYDER VS State

1. 9(b)—Possession of narcotics—Appreciation of evidence—Police officials as witnesses—Reliance—Scope—Police officials were as good witnesses as of other private persons unless mala fide against police officials was brought on record—In the present case, accused had raised plea that he was victim of political enmity and had been involved in a number of criminal cases for the political reasons—When there was defect in the prosecution case and defence plea raised by the accused, it would be unsafe to rely upon evidence of police officials without independent corroboration, which lacked in the present case—Accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

2018  YLRN  46   KARACHI-HIGH-COURT-SINDH

SIKANDAR alias SIKOO VS State

1. 9(c)—Possession of narcotic drugs—Appreciation of evidence—Sentence, reduction in—Accused was apprehended with a shopping bag which contained three pieces of charas (narcotic)—Report of Chemical Examiner showed that only ten grams of norcotic was sent to the Chemical Examiner for analysis and it was not made clear that ten grams which were sent to the Chemical Examiner were taken from all the pieces of charas recovered from the accused—Sentence of accused for ten grams of charas under S.9(b) Control of Narcotic Substances Act, 1997 would meet the ends of justice in circumstances—Samples were to be secured from every packet of narcotic substance recovered in a case and each such sample would be separately tested by Chemical Examiner—Accused had already served out sentence of 13 months and 8 days excluding remissions—Accused was on bail, his bail bonds were ordered to be cancelled and surety discharged—Appeal was disposed of accordingly.

2018  YLRN  41   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ISMAIL VS State

1. 9(c)—Possession of narcotic drugs—Appreciation of evidence—Accused was driving the truck while co-accused was sitting beside the driver at the time of arrest and Charas (narcotic) was recovered from fuel tanks of the truck—Accused being driver could not be absolved from responsibility regarding narcotics being carried in his vehicle—Plea raised by accused under S.342, Cr.P.C. that he was driving the truck at the request of owner who was released by officials on some consideration and Charas was recovered from the truck, was not believable—Co-accused had taken the plea that he had no concern with the driver and he had taken lift on way for reaching his destination—Co-accused had not entered into the witness box to record his statement under S.340(2), Cr.P.C. in disproof of prosecution allegations nor he had produced any evidence in defence—Plea of co-accused was not believable for the reason that it was truck and not bus—Case against both the accused had been proved and defence pleas raised by them appeared to be afterthought and the same had not been substantiated by reliable evidence at trial—Appeal was dismissed accordingly.

2018  YLRN  39   KARACHI-HIGH-COURT-SINDH

MUHAMMAD BUDHAL  VS State

Ss. 9(b) & 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that six pieces of opium weighing 50-grams recovered from accused and forty two pieces of charas weighing 170 grams were recovered from the co-accused—Accused got recovered 2-kilograms and 150-grams of opium from his house—Prosecution produced two witnesses comprising complainant and recovery witness to prove its case—Record showed that there were material contradictions in the statement of said witnesses—Complainant (official) had deposed that he received spy information through cell phone while witness deposed that spy informer was with the complainant—Witness deposed that lady searcher put her signatures on the mashirnama while complainant deposed that no lady constable/searcher accompanied them—Complainant stated that dummy was sent to the accused persons to purchase the narcotics while witness stated that no dummy was sent by the complainant—Report of Chemical Examiner showed that parcels of case property bore the signatures of Excise Inspector, Excise Constable and lady searcher, whereas lady searcher was admittedly was not with the raiding party—Prosecution case was that the case property was sealed at the spot—If said version of the prosecution was taken as true, how the parcels of the case property had the signatures of the lady searcher, who admittedly was not with the raiding party—Alleged recovered opium and charas, therefore, were not sealed at the spot—Circumstances created doubt that opium and charas were sealed at the spot and sent to Chemical Examiner—Report of Chemical Examiner, in circumstances, had become doubtful and established that prosecution had not been able to prove its case against the accused-appellants beyond any reasonable shadow of doubt— Accused-appellants were acquitted by setting aside conviction and sentence recorded by Trial Court.

2018  YLRN  32   KARACHI-HIGH-COURT-SINDH

Mst. HASEENA BALOCH VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S.103—Possession of narcotic substance—Appreciation of evidence—Prosecution case was that 4-kilogram heroin was recovered from the possession of accused—Defense had contended that alleged incident had taken place in broad day time and place of incident was situated in heart of city but no private witness was associated to act as mashir of arrest and recovery, which was violation of provision of S. 103 Cr.P.C.—Validity—Section 25 of Control of Narcotic Substances Act, 1997 had expressly excluded application of S. 103 Cr.P.C. to the cases registered under the Act—Appeal against conviction was dismissed in circumstances.

2018  PCrLJN  228   KARACHI-HIGH-COURT-SINDH

SULTAN ROOM BADSHAH URF BACHA VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c) & 25—Possession of narcotic drugs—Bail, refusal of—Section 25, Control of Narcotic Substances Act, 1997 expressly excluded applicability of S. 103, Cr.P.C. in narcotic cases—Non-existence of criminal record of accused could not be made sole basis for grant of bail—Ground that S. 6, Control of Narcotic Substances Act, 1997 was not attracted as police did not apprehend any purchaser of narcotics was misconceived as said section was also applicable to mere possession of narcotics—Prima facie, accused was apprehended red-handed in possession of narcotics—Bail was refused accordingly.

2018  PCrLJN  219   KARACHI-HIGH-COURT-SINDH

TURK ALI BROHI VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Sentence, reduction in—Prosecution case was that on spy information, the complainant being Police Officer stopped a truck and after in-depth search, found 20-kilograms of charas in a white plastic bag in the shape of slabs—200-grams of charas from each slab totalling 8-kilograms was taken for analysis and rest of 12-kilograms of charas was sealed separately—Prosecution, in order to substantiate the charge against the accused, examined complainant and mashir—Said witnesses had deposed in same line that on spy information, they stopped the truck in question, arrested a suspected person and found charas in the truck—Samples from all the slabs were separated and sent for chemical examination—During cross-examination, defence failed to bring on record any defect regarding the recovery of charas, separation of samples for chemical examination or any variation in the weight of samples sent to the Chemical Examiner—Record transpired that samples were sent within time for chemical examination and Chemical Examiner’s report was in positive—No suggestion was put from the defence side regarding enmity of prosecution witnesses against the accused to implicate him falsely or to foist such a huge quantity of narcotic material upon him—Nothing had been brought on record by the defence against the Investigating Officer to show any animosity or ulterior motives of false implication—Circumstances established that prosecution had succeeded to bring the guilt of accused to home, thus appeal was liable to be dismissed—Only 200-grams from each slab, totalling 8-kilograms of charas was sent for chemical examination, and as per policy of sentence only 8-kilograms of charas sent to the chemical analyst was to be considered while convicting the accused—As remaining 12-kilograms of charas was not sent for analysis, therefore, accused could not be burdened for the said quantity of charas—Accused was neither shown to be a previous convict nor involved in any other case of drug trafficking—By applying the policy of sentence, while dismissing the appeal sentence of accused was reduced from imprisonment for life to imprisonment for ten years and six months with fine, in circumstances.

2018  PCrLJN  218   KARACHI-HIGH-COURT-SINDH

SHAFIQ AHMED VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Prosecution case was that four plastic bags containing 80-kilograms of charas were recovered from the possession of two accused—Accused persons had claimed their false implication in the case but failed to show any enmity with the prosecution witnesses—Huge quantity of charas could not be foisted upon the accused persons—No material contradictions were found in the depositions of prosecution witnesses—No enmity, ill-will or grudge had been alleged by the accused persons against the prosecution witnesses—Sufficient material had been brought by the prosecution on record including positive report of Chemical Examiner—Accused persons had failed to bring anything on record that they had been falsely roped in the offence because of any rivalry with the official witnesses—Prosecution had succeeded to discharge the burden on its part and conversely the accused persons had failed to rebut the same—Circumstances established that prosecution had successfully proved its case against the accused persons and the impugned judgment being based on sound and cogent reasons did not warrant any interference—Appeal was dismissed in circumstances.

2018  PCrLJN  214   KARACHI-HIGH-COURT-SINDH

Syed INAYAT ULLAH VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Prosecution case was that twelve bags containing 90-kilograms of heroin was recovered from a container booked by accused, likely to be smuggled to other countries, hence the FIR—Record showed that no enmity, ill-will or grudge had been alleged against the prosecution witnesses—Sufficient material had been brought by the prosecution on the record including positive report of Chemical Examiner—Accused had failed to bring anything to show that he had falsely been roped in the offence because of any rivalry with the official witnesses—Circumstances established that prosecution had successfully proved its case against the accused and there was hardly any improbability or infirmity in the impugned judgment recorded by the Trial Court, which being based on sound and cogent reasons did not warrant any interference and was accordingly maintained—Appeal was dismissed in circumstances.

2018  PCrLJN  211   KARACHI-HIGH-COURT-SINDH

MUHAMMAD SULTAN alias MACHHAR VS State

1. 9(b)—Possession of narcotic drugs—Appreciation of evidence—Benefit of doubt—Allegation against accused was that 470 grams of Charas was found in his exclusive possession and due to non-availability of private witnesses, the official witnesses were appointed as marginal witnesses of arrest and recovery—Prosecution separated only 10 grams of Charas from the recovered quantity—Effect—Mode and style of sampling had not been described by the complainant either in the memo of arrest and recovery or during deposition—Prosecution case was that they apprehended the accused on the tip of information but they did not try to associate any private person—Report of the Chemical Examiner described the date of receiving the case property but record was silent about the date of sending the case property—Exhibited letter of sending the case property showed endorsement of receiving the property on certain date but different date was mentioned with a different pen in ink on the carbon copy—Prosecution case was not free from doubt, in circumstances—Accused was entitled to benefit of doubt—Conviction and sentence recorded by the Trial Court were set aside—Appeal was allowed accordingly.

2018  PCrLJN  204   KARACHI-HIGH-COURT-SINDH

MUMTAZ VS State

1. 9(c) & (b)—Possessing and trafficking narcotics—Appreciation of evidence—When, on spy information, Police party had proceeded to the place of incident, they were under legal obligation to have associated with them independent person to witness the possible arrest of accused and recovery of narcotic from him; but that was not done for no obvious reason; which rendered their proceeding to the place of incident doubtful—One plastic shopper containing charas in shape of three pieces weighing 1250 grams, was allegedly recovered from the accused—One piece weighing to be 250 grams, was sealed for purpose of chemical examination and sent to Chemical Examiner—Liability of accused, if any, was only to the extent of 250 grams of charas which was subjected to chemical examination which constituted offence punishable under S.9(b) of Control of Narcotic Substances Act, 1997—Sample of charas was sent to Chemical Examiner, with an unexplained delay of ten days from recovery of charas; possibility of substitution or tampering with the sample, could not be ruled out in circumstances—In presence of such inconsistency, the evidence of complainant and his witnesses, could not be relied upon to maintain conviction and sentence against accused—Prosecution had not been able to prove its case against accused beyond shadow of doubt—Plea of innocence of accused taken before the Trial Court, could not be lost sight of, in circumstances—Conviction and sentence, awarded to accused by the Trial Court could not be sustained, which were set aside—Accused was acquitted of the offence and was ordered to be released forthwith, in circumstances.

2018  PCrLJN  179   KARACHI-HIGH-COURT-SINDH

MUHAMMAD RIAZ VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Prosecution case was that 120 plastic bundles containing 120-kilograms charas were recovered from the secret cavities of the truck driven by the accused—Out of the said charas, complainant separated 200-grams from each bundle and sealed the same separately for sending to the Chemical Examiner—Record showed that accused was arrested while he was in possession of the truck—Accused was found sitting on driving seat of the truck—Prosecution had examined complainant and mashir, both the witnesses had fully supported the prosecution case on material points and had categorically deposed that the accused was arrested at Excise Check Post and charas was recovered from the secret cavity of the truck—Complainant had produced chemical report which showed that the parcels were received at laboratory on the next day of the incident in sealed condition and seals were perfect—Result of the test showed that packets were found containing charas—Accused had pleaded that the complainant had acted as Investigating Officer of his own FIR and that there was violation of S. 103, Cr.P.C., as no private person was joined in recovery proceedings except police officials—Police Officer was not prohibited under the law to be a complainant if he was witness of an offence—Such officer could also be an Investigating Officer so long as it did not prejudice the accused person—Application of S. 103, Cr.P.C. in narcotics cases had been excluded by S. 25 of Control of Narcotic Substances Act, 1997, therefore the contention of accused carried no weight—Accused was found sitting on driving seat and driving the truck at the time of incident, hence he was incharge of the truck, which was in his control and possession and he was responsible for the same—No previous enmity or mala fide had been alleged by the accused against the complainant and mashir—Complainant and mashir had supported each other on material points and there was no major contradictions in their evidence—Prosecution had proved its case against the accused beyond any shadow of doubt and the impugned judgment passed by the Trial Court did not suffer from any infirmity, hence the same was maintained—Appeal being devoid of merits was dismissed in circumstances.

2018  PCrLJN  171   KARACHI-HIGH-COURT-SINDH

ABDUL MAJEED VS State

Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25—Possession of over four kilograms of narcotic substance—Bail, refusal of—Accused was nominated in the FIR with specific role and was arrested at the spot and contraband narcotic had been recovered from his exclusive possession—Held, offences punishable under Control of Narcotic Substances Act, 1997 were by their nature heinous and considered to be the crime against the society at large—Deeper appreciation of the evidence was not permissible, hence the newspaper clippings, filed along with the bail application could not be considered at bail stage—Section 25 of Control of Narcotic Substances Act, 1997 stipulated that non-citing of public witness was not fatal to the prosecution case as S. 103, Cr.P.C. had been excluded from its application in the cases of narcotic substances—Bail was refused, in circumstances.

2018  PCrLJN  126   KARACHI-HIGH-COURT-SINDH

MUHAMMAD SAEED KHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic drugs—Bail, refusal of—No adverse inference for having not associated the private person in recovery proceedings could be drawn against prosecution—Report relating to the samples of charas (narcotic) sent in sealed parcels to Forensic Science Laboratory was positive—Contention that accused was taken away by three/four persons eleven days prior to the incident was without any material consideration—Offences punishable under the Control of Narcotic Substances Act, 1997 were against society at large and were heinous in nature, therefore, approach of court was to be dynamic and technicalities would be overlooked—Bail was refused.

2018  PCrLJN  94   KARACHI-HIGH-COURT-SINDH

ABDUL SALAM VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession and trafficking of narcotics—Bail, grant of—Case had been challaned and accused was no more required for investigation—Prosecution case rested upon the evidence of Police Officials, no question therefore, would arise for tampering of their evidence at the hands of accused—Case of prosecution rested upon evidence of Police Officials, their evidence was required to be minutely scrutinized at the time of trial as to whether the offence as alleged in the FIR was committed by accused in a manner as narrated by the complainant or otherwise—Nothing was on record to show that accused was a previous convict or had been arrested in a case of similar nature in the past—Complainant/Sub-Inspector of Police had conducted investigation—Contention of accused was that investigation by said police official could not be safely relied upon—Evidence of complainant Police Official, who was also Investigating Officer, though was admissible, yet for safe administration of justice, it was incumbent upon complainant to hand over the investigation of the case to any disinterested Police Official so that nobody could raise finger upon the investigation of Police Official—Complainant, was not attending the court although non-bailable warrants had been issued against him; while accused was being regularly produced before the Trial Court by the jail authorities—Conclusion of trial was not at sight—Two accused from whom 1480 grams of charas each was recovered had been granted bail by the Trial Court—Case of accused being on the same footing, he was entitled for same treatment—Accused after having made out his case for grant of bail, was admitted to bail, in circumstances.

2018  PCrLJN  91   KARACHI-HIGH-COURT-SINDH

GHULAM NABI VS State

1. 9(c)— Possession of narcotic substance— Appreciation of evidence—Prosecution case was that one shopper containing eight pieces of charas which on weighing was 4000 grams was recovered from the possession of accused—Prosecution examined complainant, Investigating Officer and recovery witness—Said witnesses had supported the prosecution case and corroborated each other—Prosecution witnesses were consistent on the material points that the narcotic was recovered from the possession of accused, which was sealed at the spot—Case property was sent to Chemical Examiner for report on the next day—Nothing adverse could be brought on record about the prosecution case despite lengthy cross-examination—Recovered substance was proved to be charas by the report of Chemical Examiner—Accused had failed to prove enmity with the police—Circumstances established that prosecution had succeeded to prove its case against the accused beyond any shadow of doubt and no ground for interference in the impugned judgment was made out—Appeal against conviction was dismissed accordingly.

2018  PCrLJN  91   KARACHI-HIGH-COURT-SINDH

GHULAM NABI VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic substance—Appreciation of evidence—Police officials as sole recovery witnesses, competency of—Principles—Prosecution case was that 4000 grams charas was recovered from the possession of accused—Prosecution witnesses were police officials—Defence had alleged that no private witness was associated at the time of recovery, which was violation of provision of S. 103, Cr.P.C.—Validity—Application of S. 103, Cr.P.C. had been excluded in such cases under S. 25 of Control of Narcotic Substances Act, 1997—Record showed that at the time of recovery, private persons were not present there, thus the alleged contention of defence had no value—Appeal against conviction was dismissed accordingly.

2018  PCrLJN  82   KARACHI-HIGH-COURT-SINDH

ARIF GUL VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic drugs—Bail, refusal of—Accused was having huge quantity of Hasheesh (narcotic) weighing three kilograms—Accused seemed habitual offender/seller of narcotics—Offence punishable under Control of Narcotic Substances Act, 1997 was offence against the society—Testimony of police official could not be excluded, no enmity was alleged by accused—Bail was refused accordingly.

2018  PCrLJN  78   KARACHI-HIGH-COURT-SINDH

FARHAN KHAN VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic drugs—Bail, refusal of—Name of accused did not find place in FIR, no role as alleged in FIR was attributed to the accused—Accused was found as facilitator of crime being proprietor of a trading company—Money transactions revealed that Shipper and Exporter both were equally responsible for transportation of goods in the container; there was huge quantity of prohibited contraband and yet it would be determined after trial, whether the accused was proved to be the facilitator—Unexplained and noticeable absconsion of accused disentitled him to the concession of bail notwithstanding merits of the case—No enmity was shown by accused with Anti Narcotic Force personnel for his false implication—Accused was fully implicated in smuggling of hazardous drugs detrimental to human life in connivance with other accused/facilitators who were earlier convicted by Trial Court and their conviction was upheld by the Supreme Court—Bail was refused accordingly.

2018  PCrLJN  75   KARACHI-HIGH-COURT-SINDH

AFZAL AHMED VS State

20. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c) & 51—Possession of narcotic drugs—Bail, refusal of—Huge quantity of narcotics 20.8 kilograms in weight was recovered from consignments belonging to accused—Chemical Examination Report was positive—Punishment of offence by the accused fell within prohibitory clause of S. 497, Cr.P.C.—Section 51 of Control of Narcotic Substances Act, 1997 provided that bail would not be granted to accused charged with offence under said Act or any other law relating to narcotics where offence was punishable with death—Discretion under S. 497, Cr.P.C. could not be exercised with regard to offences punishable with death or imprisonment for life unless court was satisfied that charge was false or groundless—Deeper appreciation of record at bail stage could not be gone into but only it was to be seen as to whether accused was, prima facie, connected with commission of offence or not—Case of accused was distinguishable from case of co-accused who had already been admitted to post-arrest bail; rule of consistency was not applicable to the present case—Bail was refused accordingly.

2018  PCrLJN  67   KARACHI-HIGH-COURT-SINDH

MUHAMMAD QASIM VS State

1. 9(b)—Possession of narcotic drugs—Appreciation of evidence—Complainant had stated that mashirnama was written by his subordinate and said subordinate deposed that mashirnama in question was written by another person—Complainant stated that statements under S. 161, Cr.P.C. of prosecution witnesses were recorded by him while prosecution witnesses deposed that said statements were recorded by Munshi (clerk of police station)—Complainant had deposed that he sent the sample to Chemical Examiner on the next date through carrier, perusal of report of Chemical Examiner showed that said carrier deposited parcel of case property in the office of Chemical Examiner after two days of its handing over to him by complainant—Prosecution had not examined carrier to explain as to whether the property was kept in safe custody for two days—Benefit of doubt was extended to accused not as a matter of grace or concession but as a matter of right in circumstances—Prosecution had failed to prove its case against accused beyond shadow of doubt; impugned judgment was set aside and accused was acquitted of the charge—Appeal was allowed accordingly.

2018  PCrLJN  64   KARACHI-HIGH-COURT-SINDH

NAIMATULLAH VS State

1. 9(c)— Possession of narcotic substance— Appreciation of evidence—Prosecution case was that 2400 grams charas was recovered from the possession of accused—Accused was arrested at the spot—On conclusion of usual investigation, challan was submitted against accused accordingly—Trial Court framed charge against the accused under S. 9(c) of Control of Narcotic Substances Act, 1997—Accused pleaded not guilty and claimed to be tried—Prosecution produced witnesses in order to prove the charge against the accused—Statement of accused under S. 342, Cr.P.C. was recorded—Prosecution thereafter, submitted an application under S. 227, Cr.P.C. to alter the charge, which was allowed—Amended charge was framed under S. 9(c) of Control of Narcotic Substances Act, 1997—Prosecution did not re-examine or re-summon the witnesses—Accused was convicted on the basis of evidence produced before altering the charge—Validity—Trial Court adopted illegal procedure by allowing the prosecution to rely upon the same evidence which was taken before amended charge—Sufficient description of samples had been mentioned in the amended cheque—Trial Court was bound to re-call witnesses already examined for re-examination afresh—High Court observed that slipshod method adopted by the Trial Court could not be appreciated which caused miscarriage of justice—After the amended charge, only the statement of accused was recorded on oath, which was illegality committed by the Trial Court—Circumstances established that conviction and sentence of accused was not sustainable—Appeal against conviction and sentence was allowed and case was remanded for decision afresh after re-calling and re-examination of prosecution witnesses already examined.

2018  PCrLJN  30   KARACHI-HIGH-COURT-SINDH

TAIZ ALI VS State

Ss. 6 & 9— Possession of narcotic drugs— Appreciation of evidence—Benefit of doubt—Complainant had deposed that opium was recovered in the round shape from the possession of accused but at the time of cross-examination he replied that opium produced in Court was not in round shape—None of the prosecution witnesses had deposed as to what had happened to the recovered substance after its recovery and with whom the same had been deposited for safe custody for such a long time—Prosecution witnesses had given different versions with regard to the places of patrolling for reaching at the place of arrest of accused and recovery of opium as given by the complainant—Although applicability of provisions of S. 103, Cr.P.C. had been excluded under the Control of Narcotic Substances Act, 1997 yet it did not debar or prohibit the officers making recoveries on such places which were necessarily surrounded by people to take some steps to associate private persons in the process so as to lend credence to the recovery and create confidence in general public—Accused had raised a specific plea that they had been involved falsely by police, in such circumstances prosecution evidence required independent corroboration which was lacking in the case, therefore, case of prosecution was doubtful—Accused was entitled to benefit of doubt—Conviction and sentence recorded by the Trial Court was set aside—Appeal was allowed accordingly.

2018  PCrLJN  26   KARACHI-HIGH-COURT-SINDH

ROSHAN VS State

1. 9(c)— Criminal Procedure Code (V of 1898), S. 156—Investigation conducted by complainant—Validity—No prohibition existed in the law for the police officer to investigate the case lodged by him.

2018  PCrLJN  26   KARACHI-HIGH-COURT-SINDH

ROSHAN VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic substance—Appreciation of evidence—Police officials as sole recovery witnesses, competency of—Principles—Prosecution case was that 3-kilograms of charas was recovered from the possession of accused—Prosecution witnesses were police officials—Defense had alleged that no private person was associated at the time of recovery—Validity—Accused had failed to show any ill-will or motive on the part of the Anti Narcotics Force officials to falsely implicate him, as such non-citing of the public witness was not fatal to the prosecution case—Private persons were reluctant/refused to act as witness—Application of S. 103, Cr.P.C. was excluded in such cases in view of S. 25 of Control of Narcotic Substances Act, 1997—Appeal against conviction was dismissed in circumstances.

2018  PCrLJN  26   KARACHI-HIGH-COURT-SINDH

ROSHAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Allegation against accused was that 3-kilograms of charas was recovered from his possession—Prosecution witness/officer of Anti Narcotics Force had given detail of recovery of charas from the accused, which was largely corroborated by witnesses—Positive report of Chemical Examiner was available on record—Departure and arrival entries of the witnesses were produced—Despite lengthy cross examination, nothing favorable to the accused could be extracted—Evidence of witness/officer of Anti Narcotics Force supported by recovery witnesses was confidence inspiring and was reliable and trustworthy—No mala fide on the part of officials of Anti Narcotics Force had been brought on the record—Evidence of officials of Anti Narcotics Force was corroborated by positive chemical report and recovery of motorcycle—Not a single major contradiction in the evidence of the Anti Narcotics Force officials had been brought on record to discard their testimony—Circumstances and facts of the case established that charas was recovered from the possession of accused, which connected the accused with the commission of offence—Appeal against conviction was dismissed in circumstances.

2018  PCrLJN  18   KARACHI-HIGH-COURT-SINDH

Mst. NASEEM BIBI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 9(c)—Possession of narcotic drugs—Bail, refusal of—Complainant (police) alleged that huge quantity of narcotics was recovered from the possession of accused and from the vaults of their car—Accused were family members of the main culprit who was notorious for similar offence—Accused were involved with him in the transportation of a huge quantity of narcotics which was sufficient to attract the charge of criminal conspiracy of doing a particular criminal act i.e. transportation of drugs in huge quantity—Accused were travelling together and womenfolk of the family of the main accused and at the time of recovery the narcotics were in their joint possession—Court was to curb such manic sternly and not to show sympathy in such like case—Concession in granting bail to the female accused would be unfair and even if accused were released temporarily, in all probability, they would continue their nefarious activities of trafficking or dealing in intoxicants clandestinely—In the present case, prima facie, no case of further inquiry within the meaning of subsection (2) to S. 497, Cr.P.C. had been made out for the grant of bail—Bail was refused accordingly.

2018  PCrLJ  87   ISLAMABAD

REGIONAL DIRECTOR ANTI-NARCOTICS FORCE, RAWALPINDI VS MUHAMMAD ASLAM

1. 9—Recovery of narcotic substances—Sentence, quantum of—Stereotype formula—Authorities were aggrieved of sentences awarded to accused persons on the basis of their confessional statements under a stereotype formula, despite the fact that narcotic substances of different quantity was recovered—Validity—Convictions and appeals were based on confessional statements made by accused persons before Trial Court—None of the accused challenged conviction by preferring appeal—Such convictions had attained finality and were accordingly maintained—Judgments were not sustainable to the extent of sentences handed down in each case as stereotype formula was adopted by Trial Court for awarding sentence in each case—High Court declared such awarding of sentence as illegal, arbitrary exercise of discretion and in violation settled principles of law—High Court remanded the cases to Trial Court to determine quantum of sentence afresh, in each case—Appeal was allowed accordingly.

2018  MLD  1942   HIGH-COURT-AZAD-KASHMIR

RIASAT alias SATI VS The STATE through Advocate General Azad Jammu and Kashmir, Muzaffarabad

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking narcotics—Bail, grant of—Allegedly, 1200 grams charas had been recovered from accused at day time—Police had not associated any private person as witness of recovery of alleged charas nor made an effort to involve any private person to act as a witness to maintain transparency of alleged recovery; nor furnished any explanation in that regard which had made the story of prosecution doubtful—Benefit of doubt could be extended in favour of accused even at bail stage—Accused was behind bars for two months—Where recovery of substance, did not exceed the limit of 1500 grams, the case being of borderline between clauses (b) and (c) of S.9 of Control of Narcotic Substances Act, 1997, accused was entitled to bail—Challan had been submitted before the court of competent jurisdiction and statements of two prosecution witnesses had been recorded—Prima facie there were contradictions in the statements of prosecution witnesses so recorded; on that ground also, accused was entitled to bail—No recovery had been made from accused, rather he had been involved in a false case—Accused was granted bail in circumstances.

2018  YLR  2695   Gilgit-Baltistan Chief Court

State VS NAZIR REHMAT

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Petition for enhancement of sentence—One kilograms charas was recovered from the possession of each of the accused—Accused persons pleaded guilty to the charge—Trial Court accepted their plea of guilt and convicted them and awarded the punishment of the period already undergone with a fine of Rs. 30,000/—-Prosecution had alleged that a lenient view had been taken, which would encourage the likeminded criminals—Validity—Record showed that accused persons pleaded guilty at the time of framing of charge—Courts had always taken a lenient view in such like cases, harsh view would not advance the cause of justice—Appeal was dismissed in circumstances.

2018  PCrLJ  389   Gilgit-Baltistan Chief Court

CHACK MATAR VS State

Ss. 497 & 59—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic drugs—Bail, refusal of—Section 51, Control of Narcotic Substances Act, 1997 was a clear bar to grant the bail to the accused booked under the Act—Contention of counsel that very arrest of the accused by the local police was illegal was devoid of any force as under S. 59, Cr.P.C. even a private person could arrest an accused who committed a non-bailable and cognizable offence—No doubt local police could register a case in case of recovery of narcotics but soon after registration of FIR the accused and recovered material must be handed over to Anti-Narcotics Force authorities for further proceedings otherwise the very object of Special Law would be made redundant—Accused was, prima facie, linked with the commission of offence—Bail was refused accordingly.

2018  MLD  1931   Gilgit-Baltistan Chief Court

State VS MANZOOR HUSSAIN

1. 497(5)—Control of Narcotic Substances Act ( XXV of 1997), Ss. 9(c) & 21—Possession of one kilogram of Charas and five grams of opium—Bail, application for cancellation of—Border line offence—Scope and effect—Contention that post-arrest bail was wrongly granted by the Trial Court in the offence which fell under prohibitory clause of S.497, Cr.P.C. and that accused/respondent was directly charged in promptly lodged FIR—Admittedly, only 1000 grams of Charas was recovered from the possession of the accused as evident from the contents of FIR—Where recovery of contraband did not exceed the limit between 900 grams to 1500 grams the case, being border-line between Ss. 9(b) and 9(c) of Control of Narcotic Substances Act, 1997 , prima facie, did not fall within the ambit of prohibitory clause of S. 497(1) Cr.P.C and grant of bail in such case was a rule and refusal was an exception—Record revealed that Head Constable had lodged the FIR against the accused and arrested him which was a gross violation of provision of S. 21 of Control of Narcotic Substances Act, 1997, hence case of the accused was one of further inquiry—When bail was granted by the Court of competent jurisdiction on the basis of valid reasons, the same could not be cancelled until and unless exceptional grounds were established by the prosecution—Trial Court had rightly granted bail to the accused and no valid grounds were available to cancel the same—Application for the cancellation of post-arrest bail was dismissed accordingly.

2018  MLD  1728   Gilgit-Baltistan Chief Court

IMRAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking narcotics—Bail, grant of—Further inquiry—Prosecution case was that 456 grams charas was recovered from the accused and co-accused—Police had discharged the co-accused hence rule of consistency would apply to the case of accused—Co-accused-petitioner had not been nominated in the FIR and nothing had been recovered from his possession, hence case to the extent of co-accused-petitioner required further inquiry—Meagre quantity of narcotic was allegedly recovered from the possession of accused as such, his case did not fall within the ambit of prohibitory clause of S.497, Cr.P.C.—Grant of bail, in such like cases, was a rule and refusal an exception—Accused were admitted to bail in circumstances.

2018  MLD  971   Gilgit-Baltistan Chief Court

MUHAMMAD NABI VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic drugs exceeding one kilo-gram—Bail, dismissal of—Complainant (police) alleged that accused was apprehended in possession of charas (drug)—Accused was caught red-handed and huge quantity of narcotic was recovered from him—Accused was habitual offender and concession of bail could not be decided in favour of such type of criminal—Bail was declined accordingly.

2018  YLRN  97   Gilgit-Baltistan Chief Court

SHABIR HUSSAIN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Arms Ordinance (XX of 1965), Ss. 13, 20 & 65—Explosive Substances Act (VI of 1908), Ss. 3 & 4—Possession of narcotic drugs, firearms and explosives—House of accused was raided after obtaining search warrants from Magistrate and a huge quantity of charas, crackers, one pistol and some cartridges of Small Machine Gun were recovered from possession of accused—Accused was a habitual offender and was involved in such like cases, his release on bail would frustrate the principles for grant of bail—Tentative assessment of material collected during investigation suggested that a prima facie case was established against the accused—Bail was refused accordingly.

2018  YLRN  27   Gilgit-Baltistan Chief Court

FIDA MOHAMMAD VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic drugs—Bail, refusal of—Counsel for accused mainly argued that ordinary police had no power to chalk FIR for offence of S.9(c) Control of Narcotic Substances Act, 1997 and such defect in the investigation of case entitled accused for grant of bail—Chief Court observed that local police had no power whatsoever to chalk FIR of the occurrences of offences falling in Control of Narcotic Substances Act, 1997—Police was directed to approach the Court of Anti-Narcotics for return of the challan if already submitted and if not so far submitted the challan they should return the case file to the police of Anti-Narcotics—If the challan had already been submitted before the Court of Judge Narcotics, he might also return the file to the Narcotics Force who would resubmit the challan after doing needful—Possibility of chalking the FIR with ulterior motive by the local police could not be overruled—Accused could not take benefit of mistakes of the police even at bail stage—Bail was refused accordingly.

2018  YLRN  19   Gilgit-Baltistan Chief Court

EHSANULLAH VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c)—Possession of narcotic drugs—Bail, grant of—Border line case between S.9(b) & S.9(c) Control of Narcotic Substances Act, 1997—Without commenting on merits/ demerits, Court, in the present case, was of opinion that only 1000 grams of “Charas” (narcotic) was allegedly recovered from the possession of the accused which would fall under S.9(b) and not under S.9(c) of the Act, 1997—Sentence for the offence under S.9(b) was only seven years which did not fall within the prohibitory clause of S.497 Cr.P.C.—Bail was granted accordingly.

2018  PCrLJN  100   Gilgit-Baltistan Chief Court

MALANG JAN VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic substance—Bail, grant of—Prosecution case was that accused-petitioners got recovered three packets of charas, each packet weighing one kilogram—One chitank of charas was separated from the recovered stuff for Chemical Expert opinion—Accused contended that no independent witness was associated at the time of alleged recovery—No search warrant was obtained by the police and only a meager quantity of charas was separated for Chemical Expert opinion—Prosecution had contended that a huge quantity of charas was recovered from the accused-petitioners and offence fell in the prohibitory clause of S. 497, Cr.P.C.—Accused-petitioners were directly charged in the FIR and as alleged three kilograms of charas had been recovered from a wooden crate, on the pointation of accused-petitioners—Contents of FIR and recovery memo showed that both the accused-petitioners were in police custody in another case and were taken to the place of recovery—Recovery was effected on their joint pointation, which was not admissible in evidence—Record showed that one chitank charas was separated for Chemical Expert opinion—Prosecution could not explain as to from which packet, one chitank charas was taken for expert opinion—Said circumstances created ambiguity, benefit of which would be extended to accused even at bail stage— Accused-petitioners were therefore, allowed bail in circumstances.

2018  PCrLJN  85   Gilgit-Baltistan Chief Court

KHUSH AMDEEN VS State

Ss. 497 & 156(2)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic drugs—Bail, grant of—Border line case between S. 9(b) and S. 9(c) of Control of Narcotic Substances Act, 1997—Any irregularity during investigation of the case could not be called in question in view of S. 156(2), Cr.P.C.—Contention of counsel for the accused that it was a border-line case between S. 9(b) and S. 9(c) of the Act was valid—Bail was granted accordingly.

2017  SCMR  1874   SUPREME-COURT

MUHAMMAD SARFRAZ VS State

1. 9(c)—Possession of narcotic—Reappraisal of evidence—Accused was caught red-handed and charas (narcotic) weighing 5 kilograms contained in 5 packets was recovered from his exclusive possession—Some quantity of narcotics was extracted from each packet and five separate sealed parcels for chemical analysis were prepared and forwarded to the office of the Forensic Science Agency—Report of the Chemical Examiner was positive—Recovery witnesses remained consistent on each and every material point and no material contradiction in their statements was pointed out—Said witnesses had no animosity or ill will towards the accused, hence they had no motive to falsely implicate the accused—Statements of said witnesses were further corroborated by the report of the Chemical Examiner—Although there was a minor delay in sending the sample parcels to the Forensic Science Agency but the rules to that effect were directory and not mandatory—Nothing on record established that the said parcels were ever tampered with rather the evidence led by the prosecution established that the parcels received by the said agency, remained intact—Both the courts below had correctly observed that the prosecution had proved its case beyond any shadow of doubt against the accused—Petition for leave to appeal was dismissed accordingly.

2017  SCMR  1194   SUPREME-COURT

IMTIAZ AHMED VS State

1. 497(1), proviso—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, grant of—Delay in conclusion of trial—Medical grounds—Judge of Trial Court had shown negligent conduct in the progress of the trial, neglecting his obligatory duty to conclude the same in minimum possible time—Accused was in jail for almost 3 years, while conclusion of the trial was not in sight because the prosecution witnesses were not turning up, in spite of coercive process being issued against them—Investigating officer of the case, who was a star witness for the prosecution, was fugitive from law in another criminal case, therefore, conclusion of the trial in the near future could not be expected—Furthermore, the accused was of advanced age and suffered from sickness, and while in custody, he had undergone an eye surgery—Accused was granted bail in such circumstances.

2017  SCMR  531   SUPREME-COURT

JAVED VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, grant of—Accused suffering from physical disability—Allegation against accused was that he was present with the principal accused in a car, which contained 35 kilograms of narcotic (charas)—Accused was a crippled person who had suffered from polio virus and both his legs were not normal—Concession could be granted to an accused who was disabled—Presently there was no clear evidence/material to reasonably establish the connection of the accused with the principal accused, who was still at large and who was in exclusive control of the car, being its owner, and to whom knowledge of the presence of the narcotics could be conveniently attributed—Prosecution could lead evidence at trial to reasonably connect the accused with the constructive knowledge about the presence of the narcotics in the car but on the available record it was not a case where bail could be justifiably refused—Accused was granted bail accordingly.

2017  SCMR  283   SUPREME-COURT

The STATE/ANF VS MUHAMMAD ARSHAD

1. 9(b)—Smuggling of heroin abroad—Reappraisal of evidence—Accused had allegedly swallowed 50 capsules containing 550 grams of heroin and attempted to smuggle the same aboard through a flight—Trial Court convicted and sentenced the accused to five years’ imprisonment and fined him Rs. 50,000—High Court acquitted the accused on appeal—Validity—Admittedly, accused was arrested from the airport and was then immediately taken to nearby hospital where X-Ray of his stomach was taken which depicted foreign bodies—X-Ray as well as the receipt of the hospital had been produced in evidence—After the X-Ray, the accused was taken to another hospital where the doctor administered the requisite medicines so that whatever was in accused’s stomach was flushed out—At all times custody of accused was secured through police personnel—Entire process, right from the arrest of the accused and administration of necessary medicine to facilitate quick excretion, had not been questioned by the defence in the cross-examination of the prosecution witnesses—Recovered capsules after excretion were immediately presented to the concerned doctor and then were sealed and sent to the Chemical Examiner—Upon chemical examination it was confirmed that the capsules contained 550 grams of heroin powder—In the presence of deposition of the doctor, it mattered not whether the accused excreted the capsules on the bed or in the toilet or whether the capsules were washed or not as such details were of no relevance—Ample evidence was available on record to find the accused guilty—Trial Court had rightly convicted the accused—Appeal was allowed accordingly and judgment of High Court was set aside and that of Trial Court was restored.

2017  SCMR  161   SUPREME-COURT

MUHAMMAD AKHTAR VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51—Possession of narcotic—Bail, refusal of—Accused had been apprehended red-handed while in possession of bhiki (poast) weighing 30 kilograms and a sample of the recovered substance had subsequently been tested positive by the Chemical Examiner—Prosecution witnesses who had witnessed the alleged recovery had no ostensible reason to falsely implicate the accused in a case of present nature—Case against the accused was also hit by (prohibition contained in) section 51 of the Control of Narcotic Substances Act, 1997—Bail was refused accordingly.

2017  PLD  671   SUPREME-COURT

STATE through the Deputy Director (Law), Regional Directorate, Anti-Narcotics Force VS MUJAHID NASEEM LODHI

3. 9—Possession of heroin—Reappraisal of evidence—Admission of guilt during trial—Effect—Sentence, reduction in—Accused was apprehended while in possession of 3.1 kilograms of heroin, while the co-accused was found in possession of 900 grams of heroin—Both accused and co-accused admitted their guilt during trial and the accused also showed remorse for his actions—Trial Court sentenced the accused to three years’ imprisonment with fine, whereas the co-accused was sentenced to four months’ imprisonment with fine—State through the Anti-Narcotics Force challenged the quantum of sentence passed against the accused by the Trial Court and sought enhancement of the same in accordance with the sentencing guidelines for narcotics substances laid down in the case of Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362); held, that in the said case the High Court had observed that in a particular case carrying some special features relevant to the matter of sentence a Court may depart from the norms and standards prescribed but in all such cases the Court concerned shall be obliged to record its reasons for such departure—In the present case, the Trial Court had recorded reasons for passing a sentence against the accused and made a departure from the sentencing guidelines provided in Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362)—Trial Court had observed that the accused had made a confession before the court besides expressing remorse and repentance with an assurance not to deal with narcotics in future—Co-accused had also made a confession before the Trial Court and on the basis of such confession he was also awarded a sentence which departed from the sentencing guidelines provided in Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362) but the State had not sought enhancement of his sentence—Reasons recorded for passing a reduced sentence against the accused and for making a departure from the sentencing guidelines provided in Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362) were found to be proper by the Supreme Court in the peculiar circumstances of the present case.

2017  YLR  878   QUETTA-HIGH-COURT-BALOCHISTAN

WAQAS ALI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Allegation against accused was that 275 packets of baked charas, each packet contained 1-kg, total 275-kg was recovered from the vehicle of accused—Record showed that accused along with vehicle were brought to police station, where the recovery proceedings were carried out—Police had failed to carry out the recovery proceedings at the spot—Complainant had failed to tender any plausible explanation as to why the alleged contraband was not sealed at the spot—Non-sealing of samples soon after its recovery created serious doubt in the prosecution case—No implicit reliance could be placed on Chemical Examiner’s report as the said report had lost its evidentiary value—Police had not separated samples for analysis either at the spot or even in the police station—Entire contraband was sent to Forensic Science Laboratory for analysis only to fill-up such lacuna—Admittedly conduct of police indicated their being in league with the accused party showing their negligence and incompetency—Accused was acquitted, in circumstances by setting aside conviction and sentence recorded by Trial Court.

2017  YLR  878   QUETTA-HIGH-COURT-BALOCHISTAN

WAQAS ALI VS State

1. 9(c)—Recovery of narcotic substance—Appreciation of evidence—Narcotic in different packets—Chemical examination—Procedure—Charas in 275 packets contained one kilogram in each packet was allegedly recovered from the vehicle of accused—Police had transmitted seven parcels of contraband, out of which six parcels contained forty packets, while one parcel contained thirty five packets and each packet in the parcels weighed 1-kg—Samples were not drawn from each packet—Non-drawing of samples from each packet separately for chemical analysis clearly indicated the negligence of the Chemical Examiner, which was not in any manner advantageous for the prosecution case.

2017  YLR  878   QUETTA-HIGH-COURT-BALOCHISTAN

WAQAS ALI VS State

1. 9(c)—Recovery of narcotic substance—Appreciation of evidence—Narcotic substance in different packets—Vehicle used in trafficking the narcotics—Prosecution failed to prove that accused was the owner of the vehicle from which alleged charas was recovered—Record showed that someone else was owner of the vehicle—Investigating Officer had failed to investigate the actual owner of the vehicle in order to substantiate the allegation that contraband was being smuggled by the accused or was being transported at the behest of the owner of the vehicle or that the vehicle was disposed of by its owner—Mere presence of the accused in the vehicle was not enough to hold him responsible for the recovered contraband as the recovery of contraband was not effected on the pointation of the accused—Prosecution had failed to prove the conscious possession of knowledge of the accused about the contraband concealed in the secret cavities of the vehicle—Accused was acquitted in circumstances by setting aside conviction and sentence recorded by Trial Court.

2017  YLR  878   QUETTA-HIGH-COURT-BALOCHISTAN

WAQAS ALI VS State

S.9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)—Seizure of narcotics—Chemical analysis—Appreciation of evidence—Benefit of doubt—Delay in sending samples of contraband for analysis—Validity—Record showed that alleged contraband was sent to Forensic Science Laboratory for analysis after lapse of one month and twenty four days from the date of its recovery—Investigating Officer ought to have sent the samples for analysis within 72 hours to the Forensic Science Laboratory as required by R.4(2) Control of Narcotic Substances (Government Analysts) Rules, 2001—No explanation was available to show that during the intervening period, whether the samples were kept in safe custody and that the same was not manipulated or replaced/ changed—Delay of one month in sending the sample for examination would cast serious doubt about the prosecution case, benefit of which would resolve in favour of accused—Appeal was allowed and conviction and sentences recorded by Trial Court against accused persons were set-aside in circumstances.

2017  YLR  878   QUETTA-HIGH-COURT-BALOCHISTAN

WAQAS ALI VS State

Ss.9(c) & 36—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 & 6—Possession of narcotic substance—Appreciation of evidence—Chemical Examiner Report —Proof—Record showed that Report of Chemical Examiner bore only one signature of the Analyst—Control of Narcotic Substances (Government Analysts) Rules, 2001 prescribed Form-II, which stipulated the signatures of two authorized officers of the Laboratory—Report was silent about the necessary protocol, the test applied and the result—Neither any protocol was mentioned in the Report nor any test was referred to on the basis whereof the Chemical Expert had concluded that the samples sent for examination contained “raw charas”—Said Report did not mention the name of police officer, who had taken the contraband to the office of the Chemical Examiner—Admittedly, no police officer had been produced in court to depose about safe custody of the samples entrusted to him for being deposited in the office of Chemical Examiner—Such report, which suffered from legal flaws could not be considered as conclusive proof and was not to be considered as admissible in evidence—Non-conclusive and non-speaking laboratory report, which was not compiled according to mandate of law and rules framed thereunder, could not be relied for conviction—Accused was acquitted, in circumstances by setting aside conviction and sentence recorded by Trial Court.

2017  YLR  113   QUETTA-HIGH-COURT-BALOCHISTAN

ELLA-UD-DIN VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Accused was driving the car in question, while co-accused was sitting next to him on front seat—On search of car 82 packets of backed charas of one Kg. each, were recovered—Specimen from each packet was separated for chemical analysis and a separate parcel of 500 grams was sealed for chemical analysis—Accused persons were arrested on the spot with recovered contraband substance—Sending the recovered contraband item with delay of beyond the period of 72 hours, would not vitiate the trial—Contradictions in the statements of prosecution, though were always fatal to the prosecution case, but a distinction was to be made between minor inconsistencies or variance in the testimony of witness from the contradictions in the evidence—Only such statements would be termed as contradictory which were either destructive of each other or were totally different to the extent that two versions could not be reconciled—Minor discrepancies in the present case, were not of such nature—Alleged contraband was recovered from the secret cavities of the car; driver could not be absolved from the responsibility, as he being the driver would have knowledge about the prohibited substance secretly concealed in the car—Knowledge and the conscious possession of both accused persons, could not be ruled out in presence of un-impeachable prosecution evidence—Co-accused was rightly held responsible for committing the offence, charged against him—Ocular testimony, recovery of substance, positive Forensic Science Laboratory report, had fully proved case against accused persons—Accused persons, could not establish that they were substituted—Prosecution successfully proved its case against the accused persons without shadow of doubt, no interference was required by High Court—Impugned judgment passed by Special Judge for narcotics, was upheld, and appeal was dismissed in circumstances.

2017  PCrLJ  1426   QUETTA-HIGH-COURT-BALOCHISTAN

State VS MUHAMMAD BAKHSHAL

1. 9(c)—Possession of narcotics—Appreciation of evidence—Appeal against acquittal—Prosecution case was that 102 packets of charas were recovered from the vehicle, wherein, accused/respondents were seated—Prosecution produced witnesses including complainant, recovery witness and Investigating Officer in order to prove its case—Complainant reiterated the contents of Murasila on the basis of which FIR was registered—Recovery witness stated that he witnessed the preparation of parcels and other formalities on the spot besides identification of articles produced in the Trial Court—Said witness acknowledged his signatures on recovery memos—Investigating Officer stated about the investigation conducted by him—Said witnesses were cross-examined at length but remained firm on material points—Main accused/driver was rightly convicted and sentenced as he was custodian of the vehicle and responsible for article concealed/lying in the vehicle, however, case of present respondents was on different footings—Said accused/respondents raised plea at initial stage in respect of their taking lift in the said vehicle which could not be rebutted through reliable and confidence inspiring evidence—Prosecution witnesses did not utter even a single word showing that the said accused/respondents were equally responsible for contraband kept and concealed in the secret cavities of the vehicle—Circumstances established that accused/respondents were not involved in the offence—Appeal against acquittal was dismissed accordingly.

2017  PCrLJ  409   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD HASHIM VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)—Seizure of narcotic—Chemical analysis of narcotics—Appreciation of evidence—Benefit of doubt—Record showed that case was registered on 29th March, 2015 and recovery of alleged contraband was also effected on the same date—Investigating Officer ought to have sent the samples for analysis within 72 hours to the Forensic Science Laboratory as required by R. 4(2) Control of Narcotic Substances (Government Analysts) Rules, 2001—Report of Forensic Science Laboratory had shown that samples were sent to it on 3rd March, 2015, much prior to its recovery as well as registration of the case—Said glaring contradiction had seriously damaged the case of the prosecution—In said circumstances, Forensic Science Laboratory’s report, in circumstances, had lost its evidentiary value and no implicit reliance could be placed thereon—Appeal was allowed and conviction and sentences recorded by Trial Court against accused persons were set aside in circumstances.

2017  PCrLJ  409   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD HASHIM VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic substance—Appreciation of evidence—Recovery witness failing to identify accused persons—Effect—Prosecution/recovery witness had failed to identify the accused persons during trial which suggested that prosecution recovery witness was not present at the time of recovery proceedings, thus creating serious doubt about recovery of contraband—Benefit of such doubt would resolve in favour of accused—Appeal was allowed and conviction and sentences recorded by Trial Court against accused persons were set aside, in circumstances.

2017  PCrLJ  409   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD HASHIM VS State

1. 9(c)—Possession and trafficking of narcotics—Appreciation of evidence—Benefit of doubt—Failure to establish conscious possession of narcotic—Effect—Allegedly 40-kilograms charas in two bags were found beneath the seats of accused persons—Neither the recovery memo nor the FIR contained the seat numbers and even no tag or documentary evidence had come on record connecting the accused with the said bags—Mere presence of the accused persons in the passenger bus or recovery of bags beneath their seats was not enough to fix the responsibility upon the accused persons for transporting huge quantity of narcotics—Prosecution had not established physical and conscious possession on the part of the accused—Circumstances of the case cast reasonable doubt about the veracity of the prosecution case, benefit of which would resolve in favour of accused persons—Appeal was allowed and conviction and sentences recorded by Trial Court were set aside.

2017  PCrLJ  409   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD HASHIM VS State

1. 9(c)—Possession and trafficking of narcotics—Appreciation of evidence—Recovery witness, credibility—Prosecution witness had alleged that accused persons had claimed the ownership of the two bags of contraband at the time of checking—Validity—If the accused persons had any nexus with the said bags containing huge quantity of contraband, they would never have claimed the ownership of the same or at the best, they could have kept mum—Said deposition of prosecution witness was neither believable nor appealed to the logic, hence the same was highly doubtful—Appeal was therefore allowed and conviction and sentences recorded by Trial Court against accused persons were set aside in circumstances.

2017  PCrLJ  409   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD HASHIM VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic substance—Appreciation of evidence—Benefit of doubt—Applicability of S. 103, Cr.P.C.—Contraband was allegedly recovered from two bags found beneath the seats occupied by the accused persons—No private witness was associated in the recovery proceedings despite the fact that many passengers were travelling in the said bus at that time—Investigating Officer did not call any passenger, driver or cleaner to attest the arrest and recovery proceedings, which was violation of S. 103, Cr.P.C.—Fact remained that S. 25 of Control of Narcotic Substances Act, 1997, excluded the applicability of S. 103, Cr.P.C. in narcotics cases, but great care and caution was to be taken for association of a private witnesses if available at the time of arrest and recovery—Circumstances of the case had created serious doubt in the case of prosecution, benefit of which resolved in favour of accused—Appeal was allowed and conviction and sentences recorded by Trial Court against accused persons were set aside in circumstances.

2017  PCrLJ  85   QUETTA-HIGH-COURT-BALOCHISTAN

ELLA-UD-DIN VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Accused was driving the car in question, while co-accused was sitting next to him on front seat—On search of car 82 packets of baked charas of one Kg. each, were recovered—Specimen from each packet was separated for chemical analysis and a separate parcel of 500 grams was sealed for chemical analysis—Accused persons were arrested on the spot with recovered contraband substance—Sending the recovered contraband item with delay of beyond the period of 72 hours, would not vitiate the trial—Contradictions in the statements of prosecution, though were always fatal to the prosecution case, but a distinction was to be made between minor inconsistencies or variance in the testimony of witness from the contradictions in the evidence—Only such statements would be termed as contradictory which were either destructive of each other or were totally different to the extent that two versions could not be reconciled—Minor discrepancies in the present case, were not of such nature—Alleged contraband was recovered from the secret cavities of the car; driver could not be absolved from the responsibility, as he being the driver would have knowledge about the prohibited substance secretly concealed in the car—Knowledge and the conscious possession of both accused persons, could not be ruled out in presence of un-impeachable prosecution evidence—Co-accused was rightly held responsible for committing the offence, charged against him—Ocular testimony, recovery of substance, positive Forensic Science Laboratory report, had fully proved case against accused persons—Accused persons, could not establish that they were substituted—Prosecution successfully proved its case against the accused persons without shadow of doubt, no interference was required by High Court—Impugned judgment passed by Special Judge for narcotics, was upheld, and appeal was dismissed in circumstances.

2017  MLD  1471   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD YOUSAF VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 & 6—Seizure of narcotic—Appreciation of evidence—Report of test or analysis—Scope—Ninety kilograms charas was alleged to have been recovered in three bags from the car of accused, out of which, one kilogram from each bag was separated and sent for chemical analysis—Control of Narcotic Substances (Government Analysts) Rules, 2001 provided two prescribed Forms i.e. Form-1 and Form-2; Form-1 had been prescribed as per Rule-5, which provided procedure and manner for sending the sample to the laboratory and receipt in the laboratory and the examination of sample with reference to the test memorandum and Form-2 described the manner and procedure for certification of test or analysis of narcotics substance—Form-1 was not available on the record; three reports were produced by the prosecution as three parcels of the chars were dispatched for chemical analysis—Said three reports had only one signature of the analyst, whereas Form-2, stipulated signatures of two authorized officers of the laboratory—Signatures of two authorized officers on the chemical analysis report were mandatory under the Rules and it was necessary that the report would contain the necessary protocol and procedure/tests applied for in reaching the conclusion that the sample received by the laboratory was narcotic substance—Report which suffered from legal flaws could not be considered as conclusive proof and would not be termed or considered as admissible in evidence—Non-conclusive and non-speaking laboratory report, which was not compiled according to mandate of law and rules framed thereunder, could not be relied for sustaining the conviction—Accused was acquitted in circumstances, by setting aside conviction and sentence recorded by the trial court.

2017  MLD  1471   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD YOUSAF VS State

Ss. 9(c) & 29—Seizure of narcotic—Burden of proof—Section 29 of the Control of Narcotic Substances Act, 1997 provided that, after successfully discharging the initial burden of proof by the prosecution, the accused had to discharge the onus of his innocence through cogent and reliable evidence—Burden could not be shifted to the accused, when the prosecution had either failed to establish the recovery or to prove that the recovered articles were contraband items—Section 29 of the Act did not absolve the prosecution from the primary duty to prove its case beyond any reasonable doubt—Burden on prosecution to prove its case could not be shifted to the accused in an artificial manner—Law contemplated and provided a procedure for doing any act, when such procedure was not complied with, that would amount to violation of law—Circumstances established that, in the present case, prosecution had failed to discharge the onus—Accused was acquitted in circumstances, by setting aside the conviction and sentence recorded by the Trial Court.

2017  MLD  1097   QUETTA-HIGH-COURT-BALOCHISTAN

NAIMATULLAH VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)(c)—Possession of narcotic substance—Bail, grant of—Case of further inquiry—Quantity of narcotic—Prosecution case was that 1340 grams narcotic substance was recovered from the garage, where the accused persons were allegedly present—Recovery of narcotic substance did not exceed the limit between 900 to 1500 grams, the case being of borderline between clauses (b) and (c) of S.9 of Control of Narcotic Substances Act, 1997, benefit of such situation was to be extended to the accused persons—Accused persons, in circumstances, were entitled for bail—Investigation had been completed and accused persons were no more required further to the police—Further detention would not serve any useful purpose and there was no apprehension of tampering with the prosecution evidence—Accused persons were therefore, admitted to bail.

2017  MLD  674   QUETTA-HIGH-COURT-BALOCHISTAN

MOHSIN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Allegation against accused was that 87kgs heroin was recovered from the vehicle of accused—Two hundred grams of heroin was separated for chemical analysis and was sent to Forensic Science Laboratory—Recovered substance, after chemical analysis was found heroin—Prosecution failed to prove that accused was the owner or in possession of the vehicle at the time, when recovery was effected from the said vehicle—Nothing had brought on record that the Investigating Officer had approached the concerned Excise Department, from where the verification of the vehicle could easily have been made—Circumstances established that no investigation in such behalf was carried out by the Investigating Officer—Prosecution had failed to establish that after the alleged recovery, the substance so recovered was either kept in safe custody or that the samples drawn from the substance were safely transmitted to the office of Forensic Science Laboratory without being tampered with or replaced while in transit—Accused was acquitted in circumstances by setting aside conviction and sentence recorded by Trial Court.

2017  MLD  674   QUETTA-HIGH-COURT-BALOCHISTAN

MOHSIN VS State

Ss. 9(c) & 36—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 & 6—Possession of narcotic substance—Appreciation of evidence—Chemical Examiner Report—Safe custody of narcotic substance—Proof—Allegation against accused was that 87-kgs heroin was recovered from the vehicle of accused—Two hundred grams of heroin was separated for chemical analysis and was sent to Forensic Science Laboratory—Relevant law on the subject provided two prescribed form, manner and procedure for certification of test or analysis of narcotic substances—Neither any protocol was mentioned in the report nor any test was referred to on the basis whereof the Chemical Expert had concluded that the samples sent for examination contained heroin—Said report did not contain the signatures of two authorized officers as well as the name of police officer, who had taken the contraband to the office of the Chemical examiner—Admittedly, no such police officer had produced to depose about safe custody of the samples entrusted to him for being deposited in the office of Chemical Examiner—Such report, suffered from legal flaws which could not be considered as conclusive proof and was not to be considered as admissible in evidence—Non-conclusive and non-speaking Laboratory Report, which was not compiled according to mandate of law and rules framed thereunder, could not be relied for conviction—Accused was acquitted, in circumstances by setting aside conviction and sentence recorded by Trial Court.

2017  MLD  288   QUETTA-HIGH-COURT-BALOCHISTAN

SHAHID DADA VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)—Seizure of narcotic—Chemical analysis Appreciation of evidence—Benefit of doubt—Prosecution had alleged that 03 kilogram charas was recovered from the possession of accused—Delay of about six months and twenty four days in sending the sample of narcotic to Chemical Examiner for analysis– Said delay was not explained by the prosecution—Alleged narcotic was whether in safe and secure custody during the intervening period had not been explained by prosecution—Exercise of sending the narcotic for analysis was required to be completed within seventy-two hours of the recovery as per law—Such inordinate delay was fatal to the case of prosecution as there was no guarantee that during the intervening period, the sample was not changed, replaced or tampered—Appeal was allowed and conviction and sentences recorded by trial court against accused were set-aside in circumstances.

2017  MLD  288   QUETTA-HIGH-COURT-BALOCHISTAN

SHAHID DADA VS State

S.9(c)—Criminal Procedure Code (V of 1898), S.103—Possession of narcotic substance—Appreciation of evidence—Non association of private person as witness—Validity—Contraband was allegedly recovered from a populated area of the locality—Prosecution witnesses were police officials—No private witness had been associated by the Investigating Officer at the time of alleged recovery despite having spy information about the offence—Admittedly, Investigating Officer did not call any private witness to associate the proceedings—Manner of recovery therefore had lost its sanctity—Appeal was allowed and conviction and sentences recorded by trial court against accused were set-aside in circumstances.

2017  MLD  288   QUETTA-HIGH-COURT-BALOCHISTAN

SHAHID DADA VS State

S.9(c)—Recovery of narcotic substance—Appreciation of evidence—Narcotic recovered in different packets—Chemical examination—Procedure—Charas in three packets was allegedly recovered from possession of accused but only a “small” and unspecified quantity was taken from every packet as a sample and were mixed up and made into one sample of 20 grams which was sent to Chemical Examiner for analysis—As to from which packet the substance was taken for analysis could not be ascertained—Such circumstances cast serious doubt about the veracity of prosecution case, benefit of which would resolve in favour of accused—Appeal was allowed and conviction and sentences recorded by trial court against accused were set-aside in circumstances.

2017  MLD  288   QUETTA-HIGH-COURT-BALOCHISTAN

SHAHID DADA VS State

Ss.9(c) & 25—Criminal Procedure Code (V of 1898), S.103—Possession of narcotic substance—Appreciation of evidence—Benefit of doubt—Applicability of S. 103, Cr.P.C.—Scope—Contraband was allegedly recovered from a populated area of the locality—No private witness was associated in the recovery proceedings, which was violation of S. 103, Cr.P.C.—Fact remained that S. 25 of Control of Narcotic Substances Act, 1997, excluded the applicability of S. 103, Cr.P.C. in narcotics cases, but there should be some plausible explanation on the record that attempts were made to associate any independent witness from the locality—Record had shown that no such efforts/attempts were made by the Investigating Officer—Accused had pleaded his false implication and also denied his arrest from the place of occurrence—Association of an independent witness was necessary to attest the recovery proceedings—Circumstances of the case had created serious doubt in the case of prosecution, benefit of which resolved in favour of accused—Appeal was allowed and conviction and sentences recorded by trial court against accused were set-aside in circumstances.

2017  PLD  21   PESHAWAR-HIGH-COURT

Mst. SHAH SANAM alias SHEMA VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking narcotics—Bail, refusal of—Counsel for accused pleaded that accused lady, could be granted bail, as she was a widow, and she had remained in judicial lock-up for the last two months—Plea, was repelled in view of the recovery of huge quantity of contraband charas from the direct personal possession of accused—Offence for which accused was charged squarely fell within the restrictive limb of S.497, Cr.P.C.—Mere womanhood or widowhood, was no good ground to enlarge accused on bail in such like cases and that too, when the smuggling of narcotics through ladies and minors had become a common phenomenon—Accused, prima facie linked with the commission of offence, was disentitled to bail—Bail petition being bereft of any merits, stood dismissed, in circumstances.

2017  YLR  126   PESHAWAR-HIGH-COURT

SHARAFAT KHAN VS State

1. 9(c)—Possession, import and export, trafficking or financing the trafficking of narcotic drugs—Appreciation of evidence—Charas weighing 25000 grams was alleged to have been recovered from possession of the accused—Trial Court sentenced the accused to undergo life imprisonment along with payment of fine—Positive report of Forensic Science Laboratory, confirming the recovery of Charas, had substantiated the prosecution version—Prosecution had not only placed on the record the report of the Chemical Examiner but also produced witnesses, besides the complainant and marginal witnesses, to the recovery memo in order to prove taking samples from each packet, sealing of the same in separate parcels on the spot immediately after the recovery and their safe custody till the samples had been received in the Forensic Science Laboratory on day of the recovery without having been tampered with during that period—Court, in order to arrive at just decision, had taken extraordinary step to open the sack and also the packets; said exercise had further reaffirmed the fact the complainant had taken samples from a corner of each slab in the packet—Complainant/SHO had recorded a note on the recovery memo to the effect that the place of occurrence was although busy road but despite of his efforts no one from the public had volunteered to become witness to the recovery—Accused had failed to discharge the burden to prove existence of malice on part of the police for his false implication—High Court observed that it was beyond imagination that the police would have stooped so low to substitute an innocent person for the real culprit and implicate him in a case of recovery of such a huge quantity of contraband, when nothing existed on the record to impute the devilish role of police, that too at the behest of a person whose very nexus with the case was not established—Prosecution witnesses remained consistent and coherent regarding material facts of the case—Accused had declined to avail the opportunity of both recording his statement on oath as his own witness and producing defence—Appeal was dismissed accordingly.

2017  PCrLJ  1661   PESHAWAR-HIGH-COURT

RIAZ UR REHMAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic drugs—Bail, grant of—Accused was behind the bars for one and a half year and directions were issued to Trial Court twice to conclude the trial but even after the lapse of more than a year, Trial Court had examined only one witness—If the Trial Court proceeded trial with such speed that would not be concluded in a near future—High Court directed to release the accused on bail in circumstances.

2017  PCrLJ  438   PESHAWAR-HIGH-COURT

HAROON KHAN VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic substance—Bail, grant of—Further inquiry—Prosecution story was that 8400 grams charas was recovered from the vehicle driven by accused and co-accused was accompanying the accused in the vehicle—Co-accused was sitting in the vehicle and to see as to whether he had conscious knowledge about the concealment of narcotics in the vehicle in which, he was sitting, was the question, which was to be determined by the Trial Court after recording evidence—Case of co-accused was that of further inquiry—Co-accused was allowed bail in circumstances.

2017  PCrLJ  438   PESHAWAR-HIGH-COURT

HAROON KHAN VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic substance—Bail, refusal of—Prosecution story was that 8400 grams charas was recovered from the vehicle driven by accused and co-accused was accompanying him in the vehicle—Accused being driver of the vehicle had its full control, as such, he could not be exonerated from the liability—Reasonable grounds existed for believing that accused had committed an offence, which fell within the restrictive limbs of S. 497(1), Cr.P.C.—Bail was declined to the extent of accused.

2017  PCrLJ  335   PESHAWAR-HIGH-COURT

MUHAMMAD NOMAN VS State

1. 9(c)— Possession of narcotic substance— Appreciation of evidence—Prosecution case was that four packets of 1250 grams each, total five KG charas garda were recovered from the possession of accused—Prosecution proved its case by producing eye as well as recovery witnesses—Marginal witnesses of recovery memo were unanimous about recovery of substance—Other prosecution witnesses also supported the prosecution version—Recovered substance was proved to be charas by the positive report of chemical analysis—Appeal against conviction was dismissed accordingly, however keeping in view very young age of accused (19 years), his sentence of 12 years was reduced to six years—Order accordingly.

2017  PCrLJ  335   PESHAWAR-HIGH-COURT

MUHAMMAD NOMAN VS State

1. 9(c)— Possession of narcotic substance—Appreciation of evidence—Sentence, reduction in—Four packets, each containing 1250 grams charas garda were recovered from the possession of accused—Accused was only 19 years old at the time of commission of offence—Appeal against conviction was dismissed, however keeping in view very young age of accused, his sentence of twelve years was reduced to six years—Order accordingly.

2017  PCrLJ  335   PESHAWAR-HIGH-COURT

MUHAMMAD NOMAN VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic substance—Appreciation of evidence—Police officials as sole recovery witnesses, competency of—Principles—Four packets, each containing 1250 grams charas garda were recovered from the possession of accused—Prosecution witnesses were police officials—Contention was that private witness had been associated at the time of alleged recovery—Private persons would not indulge themselves, in such cases, due to the fear of enmity and to avoid protracted trial proceedings—Police officials were as good witnesses as other witnesses, unless any ill will, grudge or enmity with the accused was shown on their part—Appeal against conviction was dismissed accordingly, however keeping in view very young age of accused (19 years), his sentence of 12 years was reduced to six years—Order accordingly.

2017  PCrLJ  335   PESHAWAR-HIGH-COURT

MUHAMMAD NOMAN VS State

Ss. 9(c), 21 & 22—Criminal Procedure Code (V of 1898), S. 537—Allegedly five KG charas garda was recovered from the possession of accused—Case was registered by the Assistant Sub-Inspector, who was not competent—Accused was apprehended by Sub-Inspector and on his report, case was registered by Assistant Sub Inspector, therefore S. 21 had not been violated—Sections 21 & 22 of the Act were directory in nature—Non-compliance of said sections would be an irregularity, which could be cured under S. 537, Cr.P.C.—Non-compliance of Ss.21 & 22 of the Act would not cause prejudice to the case of accused.

2017  MLD  1376   PESHAWAR-HIGH-COURT

SIFAT ULLAH VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession and trafficking of narcotics—Bail—Statutory ground of delay in conclusion of trial—Prosecution case was that 25-kilograms charas was recovered from secret cavities of the car of the accused-petitioner, 5-kilograms heroin was recovered from the cavities of car of other accused-petitioner, 5-kilograms 200 grams opium was recovered from the car of yet another accused-petitioner—Record showed that the accused-petitioner, in the case of recovery of 5-kilograms 200 grams opium, was arrested on 9.3.2015—Trial of the said accused-petitioner had not been concluded and delay in the conclusion of trial was not attributed to him—No evidence was forthcoming on record, which could show that case of said accused fell within the ambit of fourth proviso of S. 497, Cr.P.C.—Accused-petitioner was therefore, entitled to be released on bail on the ground of statutory delay—Accused was admitted to bail accordingly—Record transpired that none of the accused-petitioners of the other two cases had earned the ground of statutory delay of two years in the conclusion of their trial, thus, they were not entitled to be released on bail on the ground of statutory delay—Both the petitions for bail being premature were dismissed accordingly.

2017  MLD  1367   PESHAWAR-HIGH-COURT

Mst. JAVERIA VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, grant of—Further inquiry—Female accused with suckling baby—Welfare of minor—FIR showed that at the time of arrest, accused was having her 1½ years old suckling baby/daughter in her lap who was with her inside the jail—No doubt considerable quantity of opium had been shown recovered from her possession but her suckling daughter in her lap was languishing in jail with her mother for no sin—Welfare of minor was irreconcilable with life of jail, thus instead of detaining the innocent infant in the jail for the crime allegedly committed by her mother, it would be in the interest of justice as well as welfare of minor, if her mother was released from the jail—Holy Prophet Muhammad (S.A.W.) had suspended the sentence on pregnant woman, not only till delivery of her child, but also till suckling period, i.e. two years, obviously for the welfare of her child, which depicted paramount importance and significance of the right of a suckling child in Islam—Without touching the merits of the case while following the said golden principle of administration of justice, accused was allowed bail in circumstances.

2017  YLRN  61   PESHAWAR-HIGH-COURT

JAHANGIR VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possessing and trafficking narcotics—Bail, grant of—Further inquiry—Huge quantity of narcotics had not been recovered from direct possession of accused, rather from the secret cavities of vehicle being occupied by co-accused—Accused had not been named in the initial FIR, rather he was nominated by co-accused in his statement recorded under S.161, Cr.P.C.—Except said statement of co-accused, no evidence was collected by Investigating Agency, which had made the case of accused that of further inquiry under S.497(2), Cr.P.C. for the purpose of bail—Co-accused, had nowhere mentioned the name of accused, even in his statement under S.342, Cr.P.C.—Co-accused did not name accused, nor described his role in the commission of offence—Bail could be granted, if an accused had good case for bail on merits and mere absconsion, would not come in way while granting the bail—Mere abscondence of an accused, could not be deemed sufficient to refuse bail to him, if his case called for further probe into his guilt within the scope of S.497(2), Cr.P.C.—Bail could not be withheld as a punishment—Mistaken relief of bail could be repaired by convicting accused, if proved guilty, but no proper reparation could be offered for unjustified incarceration, albeit, his acquittal in the long run—No recovery of contraband had been effected from the direct possession of accused or at his instance and pointation—Accused could not be deprived of the concession of bail, as he was no more required to the Police for further investigation—Accused was admitted to bail, in circumstances.

2017  YLRN  52   PESHAWAR-HIGH-COURT

MISHAL KHAN alias MISAL KHAN VS State

1. 9 (c)—Possession of narcotic substance—Appreciation of evidence—Benefit of doubt—Prosecution case was that 80 KG charas contained in 68 packets were recovered from the secret cavities of fuel tank of the truck, which was driven by one of the accused—Prosecution witness admitted that each and every packet of alleged charas was not weighed separately–Little quantity was separated from each and every packet but the exact weight of each quantity of narcotics separated from each packet had neither been mentioned nor shown—Admittedly the sample had not been sent for chemical analysis—Validity—Prosecution had not proved the exact weight of recovered substance—Attending circumstance and non-availability of chemical analysis report suggested doubt about the weight and nature of the recovered narcotics substance, benefit of which had to go to the accused—Appeal was allowed accordingly and conviction and sentence of accused persons under S. 9(c) of Control of Narcotic Substances Act, 1997, was set aside.

2017  YLRN  52   PESHAWAR-HIGH-COURT

MISHAL KHAN alias MISAL KHAN VS State

1. 9 (c)—Possession of narcotic substance—Appreciation of evidence—Recovery witnesses—Benefit of doubt—Prosecution witness of paramount importance was not confident to state that the recovered substance was charas “Pukhta” or charas “Gardah”—Prosecution witness admitted that sample from each packet had not been sent for laboratory—Recovery memo was silent to the effect as to how much contraband was recovered from the custody of which accused—Such circumstances created a dent in the veracity of the recovery being effected, and thus serious doubts had arisen, benefit of which had to go to the accused—Appeal was allowed accordingly and conviction and sentence of accused persons under S. 9(c) of Control of Narcotic Substances Act, 1997, was set aside.

2017  YLRN  52   PESHAWAR-HIGH-COURT

MISHAL KHAN alias MISAL KHAN VS State

1. 9(c)—Possession of narcotic substance—Appreciation of evidence—Benefit of doubt—Prosecution case was that charas was recovered from the secret cavities of the diesel tank of the truck, which was removed from the truck—Spot inspection was carried out by the Trial Court as per direction of appellate court to the effect that fuel tank could be fitted in the place of truck from where the same was allegedly removed—Report of spot inspection indicated that fuel tank was tried to be fitted in the empty place for fuel tank in the truck but it was hardly fittable there even by the expert—Such circumstances created serious doubt in the prosecution case—Appeal was allowed accordingly and conviction and sentence of accused persons under S. 9(c) of Control of Narcotic Substances Act, 1997, was set aside.

2017  YLRN  36   PESHAWAR-HIGH-COURT

JIHAD ALI VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession and trafficking of narcotic drug/charas—Bail, refusal of—Accused was caught by Police in possession of narcotic drug/ charas while driving a car and accompanied by three other persons—Trial Court dismissed bail application of accused—Accused was caught at the time of recovery of contraband material—Punishment for such offence fell under prohibitory clause of S.497, Cr.P.C.—Forensic report disclosed the recovered stuff as contraband—Rule of consistancy was not applicable in the case of accused as co-accused released on bail, was just a passenger of the car—Prima facie, accused seemed to be connected with the crime—Bail petition was dismissed accordingly.

2017  PLD  74   PESHAWAR-HIGH-COURT

MUHAMMAD FAYAZ VS State

1. 9(c)—Possession and trafficking narcotics—Appreciation of evidence—Police witnesses, credibility of—Police officials were as good witnesses as other citizens—Control of Narcotic Substances Act, 1997 was a stern law—Accused could be awarded death sentence or life imprisonment on the basis of testimony of police officials—Prosecution in such circumstances, was duty bound to conduct diligent, honest and flawless investigation.

2017  PLD  74   PESHAWAR-HIGH-COURT

MUHAMMAD FAYAZ VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Allegation on the accused was that 171 Kilograms heroin was recovered from the secret cavities of his tanker—Prosecution had not produced the case property as well as tanker in order to strengthen the case against the accused—Effect—Case property was not produced during trial which was best evidence with the prosecution against the accused—Circumstances of the case showed that no recovery of contraband substance as well as tanker was effected from the accused or the prosecution was not interested in pursuing the case against the accused—Such circumstances created reasonable doubt about the veracity of the prosecution case—Benefit of all this was given to the accused as a matter of right—Appeal was accepted and conviction and sentence of accused was set aside.

2017  PLD  74   PESHAWAR-HIGH-COURT

MUHAMMAD FAYAZ VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Allegation on the accused was that 171 Kilograms heroin was recovered from the secret cavities of his tanker—Prosecution instead to produced the case property, submitted that case property had been destroyed—Photocopies of destruction certificates were produced—Neither the original destruction certificates were produced by the prosecution during trial for exhibition nor had brought the actual fact regarding destruction of case property into the notice of Trial Court—Effect—Accused could not be convicted for an offence bearing capital punishment on the basis of mere photocopies of destruction certificates—Such circumstances of the case created doubt in a prudent mind regarding recovery of alleged contraband from the possession of the accused, benefit of which was resolved in favour of accused—Appeal was accepted and conviction and sentence of accused were set aside.

2017  PLD  74   PESHAWAR-HIGH-COURT

MUHAMMAD FAYAZ VS State

1. 9(c)—Qanun-e-Shahadat (10 of 1984), Art. 79—Possession and trafficking narcotics—Unattested document of destruction of case property—Scope—Prosecution produced photocopies of destruction certificates about disposal of case property which was inadmissible in evidence and could not be relied upon—Accused could not be convicted for an offence bearing capital punishment on the basis of mere photocopies of destruction certificates.

2017  PLD  74   PESHAWAR-HIGH-COURT

MUHAMMAD FAYAZ VS State

1. 9(c)—Qanun-e-Shahadat (10 of 1984), Art.129(g)—Possession and trafficking narcotics—Withholding of best evidence—Effect—Destruction of case property—Procedure—Prosecution had to produce original destruction certificates before the court and in case of absence of the same, the Magistrate concerned who had carried out the destruction proceedings could have been examined in support of the stance of the prosecution—By not examining the said witness, prosecution had withheld the best evidence—Presumption could be drawn that party had some motive behind it by not producing the said evidence and in case such evidence was produced, the same would not have supported the prosecution case—Such circumstances made the case of prosecution dubious—Appeal was allowed and conviction and sentence recorded against the accused were set-aside.

2017  PCrLJN  31   PESHAWAR-HIGH-COURT

NAEEM VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Penal Code (XLV of 1860), S. 325—Possession of narcotic substance and attempt to commit suicide—Bail, refusal of—Accused, was alleged to have been arrested while he was in possession of 2700 grams of charas gardah and 300 grams heroin—Accused caused injuries on his body with blade at the time, when police tried to overpower him—Accused caused injuries on his body in order to get sympathy of bystanders and intended escape from the place of occurrence—Act of accused indicated that he was involved in the commission of offence—Offence of the accused fell in the ambit of prohibitory clause of S. 497, Cr.P.C.—Bail refused accordingly.

2017  YLR  604   LAHORE-HIGH-COURT-LAHORE

AFTAB VS State

Ss. 9(b) & 6—-Criminal Procedure Code (V of 1898), S. 516-A, Second proviso—Possession of narcotic drugs etc.—Appreciation of evidence—Safe custody of narcotic substance, requirement of—Two reports of Chemical Examiner, first negative and second positive, regarding same substance were available on record—Second sample parcel was prepared without permission of Magistrate—Effect—Heroin weighing five hundred grams, was alleged to have been recovered from possession of the accused while he was transmitting the same—Trial Court convicted the accused and sentenced him for imprisonment for five years along with payment of fine—Prosecution had not established safe custody of the recovered substance, as reports of the Chemical Examiner regarding the same were contradictory—Prosecution witness deposed during cross-examination that he had delivered the sample parcel to the office of Chemical Examiner, but his report revealed that said sample did not contain heroin—Prosecution witness deposed that he had prepared a fresh sample of the case property and sent the same to Chemical Examiner after moving an application to Magistrate in that regard; neither such application nor order passed on the same by the Magistrate were available on record, which had falsified the prosecution case—Said witness also deposed that at time of preparing the sample, Moharrar was not with him—Said witness, having prepared the second sample of the case property, had sent the same to Chemical Examiner without any permission of the Magistrate—Section 516-A, second proviso, Cr.P.C. empowered the court to order, suo motu or on an application of any party and under its supervision and control, to obtain and prepare samples of the case property—Another prosecution witness also claimed during cross-examination that the second sample parcel had been handed over to him—Said contradiction with regard to the date of preparing and handing over of the second sample parcel to the Moharrar had created serious doubt; therefore, no implicit reliance could be placed on such type of evidence—Nothing was available on record to establish as to in whose presence said second sample had been prepared—Second positive report of Chemical Examiner did not carry any weight, especially, in absence of any evidence with regard to the safe custody of the recovered substance and due to the material illegality committed while preparing the second sample parcel—In view of the said material illegalities and contradictions, prosecution had failed to prove the case beyond any reasonable doubt through material and cogent evidence—High Court, setting aside impugned order, acquitted the accused—Appeal was allowed in circumstances.

2017  YLR  524   LAHORE-HIGH-COURT-LAHORE

TAHIR MAHMOOD VS The STATE/ANTI NARCOTICS FORCE

Ss. 9(c) & 25—Possessing and trafficking narcotics—Appreciation of evidence—Sentence, reduction in—Minor contradictions in the evidence of prosecution witnesses, were not of great importance as statements of said witnesses were recorded in the court after about 4 years of the registration of the case—With the afflux of time, it was quite natural that some minor contradictions could occur in the evidence of the witnesses—All the prosecution witnesses remained firm on the material points and they had successfully discharged the initial burden of proving the recovery—When no prejudice was caused to accused, then functioning of complainant in his dual capacity as complainant as well as Investigating Officer, was neither illegal nor unlawful—Case property having been produced before the Trial Court, non-production of car in question, could not be termed as fatal to the prosecution case, as recovery was not effected from any of the secret compartments or cavities of the said car, rather the heroin was recovered from the bags, which were lying in the rear seat—Control of Narcotic Substances Act, 1997, being a special law, having clearly precluded the applicability of S.103 of Criminal Procedure Code, 1898, non-association of public witness during the recovery proceedings, was of no consequence—Accused persons could not furnish any plausible explanation for their false implication in the case—Plea of alibi taken by accused, was not supported by any independent evidence—Prosecution, had discharged the onus of proof by leading cogent and convincing evidence, but accused had failed to the contrary—High Court observed that approach of the court, while dealing with the case of narcotics, should always be dynamic, and court was to overlook technicality in the larger interest of the country and public at large; court had to consider the entire material on record as a whole and, if it was convinced that the case was proved, conviction should be recorded—Prosecution having successfully proved the charge against accused person by leading sufficient and cogent evidence, Trial Court had rightly appreciated the same while recording the conviction of accused under S.9(c) of Control of Narcotic Substances Act, 1997—Accused persons, were first offenders and having no antecedents of any criminal case to their score, death penalty being harsh punishment was converted into life imprisonment with benefit of S.382-B, Cr.P.C., in circumstances.

2017  PCrLJ  1652   LAHORE-HIGH-COURT-LAHORE

TARIQ AHMED VS State

Ss. 9, 36 & 48—Possessing and trafficking narcotics—Appreciation of evidence—Report of Chemical Examiner—Application for fresh analysis of the contraband— Dismissal of application—Appellant/accused, was found in possession of three cans, each containing twenty seven litres of Acetic Anhydrine, a contraband designated as psychotropic substance under the Control of Narcotic Substances Act, 1997—Trial was in progress, and evidence of recovery witnesses, had already been recorded; the Report of Chemical Examiner was before the court—Appellant, being dissatisfied with the report of Chemical Examiner, moved application for fresh analysis of the contraband for the purpose of determination of its chemical composition—Contention of appellant was that it would be in the interest of justice that the seized contraband be sent to any laboratory other than Punjab Forensic Science Agency—Validity—Prosecution of offences was a State attribute; State functionaries and institutions, were tasked to carry out the job; there was presumption of genuineness to such pursuits—Said powers could not be delegated to private enterprises chosen by a person confronting indictment—Any flaw or defect in the Forensic Report, could not be pressed into service for fresh analysis—Accused was not required to establish his innocence through such methodologies—Forensic analysis of the contraband, in the case, was undertaken soon after registration of the case; it was intriguing as to how the appellant became suspicious about the psychotropic character of the stuff attributed to him—Appellant having denied the charge, no onus was cast upon him within the contemplation of Art. 119 of the Qanun-e-Shahadat, 1984 to discharge any responsibility which could necessitate the proposed exercise—Appeal was dismissed.

2017  PCrLJ  1634   LAHORE-HIGH-COURT-LAHORE

SALAMAT ALI VS State

15. 9(c)— Recovery of narcotic substance—Appreciation of evidence—Benefit of doubt—Statement, delay in recording—Heroin weighing 3 kilograms was alleged to have been recovered from accused who was convicted by Trial Court and sentenced to imprisonment for seven years—Validity—Prosecution was unable to prove manner of seizing of samples—Seized articles were not handed over to Investigating Officer—Parcel of 100 grams heroin was received on 15.04.2011 and the same was deposited in the Office of Chemical Examiner—Statement under S. 161, Cr.P.C. of prosecution witness receiving sample was recorded on 13.08.2013—Investigating Officer had recorded statement of prosecution witness after a long gap and did not offer any explanation—Unexplained and unjustified long delay on the part of Investigating Officer in recording statement of material witness during investigation in case of narcotic substances, rendered the evidence of such witness unreliable—No proof was given by prosecution that seized articles were kept in safe custody and the same were handed over to Investigating Officer—Vital inconsistencies existed in prosecution case which could not be ignored—High Court set aside the findings recorded by Trial Court as the same suffered from legal infirmities and accused was acquitted of the charge—Appeal was allowed in circumstances.

2017  PCrLJ  1264   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ASLAM VS State

1. 9(c)— Qanun-e-Shahadat (10 of 1984), Arts. 133 & 151—Constitution of Pakistan, Art.10-A—Possession of narcotic drugs—Appreciation of evidence—Accused was apprehended by the police on suspicion and was found in possession of charas (narcotic)—Trial Court in case of failure of accused to engage counsel, was legally obliged to appoint counsel for accused on State expense, which was not done—Trial Court recorded examination-in-chief of five prosecution witnesses and accused had no opportunity to cross-examine the prosecution witnesses—To defend any criminal proceeding, whether heinous or minor, was a fundamental and essential right of accused as protected under Art. 10-A of the Constitution—Under Arts. 133 & 151, Qanun-e-Shahadat, 1984 right of cross-examination was not merely a formality but a valuable right conferred by the law—Even otherwise, in reaching just and fair conclusion of trial, the accused must not be stripped of his valuable right of fair, reasonable and impartial trial in due course of law and to do away with the same was the negation of concept of due process of law—Case was remanded to the Trial Court.

2017  PCrLJ  1193   LAHORE-HIGH-COURT-LAHORE

ANTI-NARCOTICS FORCE  VS NASIR KHAN

Ss. 9(c), 47 & 48—Criminal Procedure Code (V of 1898), Ss. 435 & 439—Possession of narcotic drugs—Criminal revision under Ss. 435/439, Cr.P.C.—Maintainability—Complainant assailed the vires of judgment passed by Special Court which on confessional statement of accused had convicted him under S. 9(c), Control of Narcotic Substances Act, 1997—Section 47 of Control of Narcotic Substances Act, 1997 had made Code of Criminal Procedure Code, 1898 applicable to trial and appeals before a Special Court—Section 48 of the Act contemplated an appeal to High Court against an order passed by a Special Court comprising Sessions Judge or Additional Sessions Judge and in the present case, the Court was that of Sessions Judge thus Ss. 435 & 439, Cr.P.C. would be inconsistent to Ss. 47 & 48 of Control of Narcotic Substances Act, 1997—Order passed under the Act could not be assailed by invoking revisional jurisdiction of High Court—Criminal revision was dismissed being not maintainable.

2017  PCrLJ  1077   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD YASIR VS State

Ss. 9(b), 9(c) & 6— Criminal Procedure Code (V of 1898), S. 382-B— Possession of narcotic substances/drugs— Sentence, quantum of—Determination—Weight of the contraband—Accuracy of weight of contraband to be determined by experts of Forensic Science Laboratory/Agency—Scope—Accused was convicted and sentenced under S. 9(c) of the Control of Narcotic Substances Act, 1997—Contention of accused was that he should be sentenced under S. 9(b) instead of S. 9(c) of the Control of Narcotic Substances Act, 1997, since sample of recovered contraband, when subjected to chemical analysis, weighed much less than what was determined by Investigating Officer—Validity—Recovery of contraband (charas) from the accused stood proved, and 1015 grams of the same were recovered, out of which 10 grams were sent for chemical examination, which report reflected the 6.22 grams instead of 10 grams, which raised serious questions about accuracy of scale used by Investigating Officer at time of weighing of contraband, and therefore, scale used by the Investigating Officer was defective—Weight of contraband was of vital importance in deciding quantum of sentence and even difference of one gram was significant and in cases of controversy regarding weight of contraband, preference was to be given to the scale used by experts of the Forensic Science Laboratory—High Court observed that keeping in view deficiency found in weight of the sample, weight of total contraband recovered from accused should be determined after deduction of a percentage from 1015 grams, which meant, that the actual weight of the charas recovered became 631 grams, which fell within the purview of S. 9(b) of the Control of Narcotic Substances Act, 1997—Conviction of accused was converted from that under S. 9(c) of the Control of Narcotic Substances Act, 1997 to one under S. 9(b) of the Act, and his sentence was modified accordingly, along with benefit of S. 382-B, Cr.P.C.—Appeal was disposed of, accordingly.

2017  PCrLJ  1020   LAHORE-HIGH-COURT-LAHORE

SHAUKAT ALI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 15—Possession of narcotic drugs, aiding, abetment or association in narcotic offences—Bail, grant of—Further inquiry—Complainant (police official) had alleged that on spy information a raid was conducted and Charas (narcotic) was recovered and accused was apprehended in company of co-accused from the place of recovery—Case of prosecution was that one co-accused while driving car arrived at venue of recovery and in the meanwhile second co-accused along with accused came there and second co-accused received polythene bag from one co-accused whereas rest of Charas was recovered from beneath the driving seat on pointation of one co-accused—No recovery was effected from the person of accused—Mere fact that accused was accompanying the co-accused from whose possession Charas was recovered, his active involvement in the crime was to be determined at the time of trial after recording of evidence—Case of accused fell within the ambit of further inquiry and probe—Bail was granted accordingly.

2017  PCrLJ  668   LAHORE-HIGH-COURT-LAHORE

ARSHAD MAHMOOD KHAN VS State

1. 9(c)—Possession, import or export, trafficking or financing of narcotic drugs—Appreciation of evidence—Chemical Examiner’s Report—Requirement and evidentiary value—Prosecution had failed to establish the safe custody of the recovered substance and the parcels of samples—Contradictions existed as to deposit of the samples and case property in the Malkhana— Prosecution witnesses had made contradictory statements as to the nature, colour, shape and size of slabs of the recovered Charas Garda—Some of the prosecution witnesses had even stated the recovered substance to be heroin; whereas, the question put to the accused in his examination under S. 342, Cr.P.C. related specifically to Garda Charas and the Chemical Examiner’s Report had also revealed the parcels of samples separated from the recovered substance to be Charas Garda—Contradictions in statements of the prosecution witnesses as to nature of the recovered substance, in absence of positive and material evidence, could not be regarded as minor and irrelevant—Report of the Chemical Examiner must disclose the procedure on which his opinion is based and the reason in support of the opinion—Report of the Chemical Examiner is no evidence unless the same is supported by reasons—Chemical Examiner’s report, except the opinion that the samples contained Charas, had no other data as prescribed by the law, which being a patent infirmity was fatal to the prosecution case—No evidence existed to connect the Chemical Examiner’s Report with the recovered substance—Prosecution was bound to prove/link evidence with the arrest of the accused; seal of the case property and the samples from the time of its recovery and deposit in the Malkhana and later with the office of Chemical Examiner by examining all the witnesses who remained associated with the entire process—Trial court had committed grave illegality in convicting the accused without any legal evidence available on the record— High Court, setting aside the conviction/sentence, acquitted the accused—Appeal against conviction was allowed accordingly.

2017  PCrLJ  576   LAHORE-HIGH-COURT-LAHORE

IZHAR SHAH VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession, import or export, trafficking or financing of trafficking—Bail, grant of—Charas weighing 2015 grams was alleged to have been recovered from the accused—Accused, as mentioned in the FIR, had received an injury on his right knee joint and was being treated by the police, which background reflected upon the veracity of the whole prosecution case—High Court made certain observations about the corrupt practices being carried on by the police and poor quality of investigation in criminal cases—Bail application was allowed accordingly.

2017  PCrLJ  349   LAHORE-HIGH-COURT-LAHORE

STATE through Deputy Director (Law), Regional Directorate Anti-Narcotics Force VS ALI ASGHAR

Ss. 9(c) & 48—Criminal Procedure Code (V of 1898), S. 417—Possession, import or export, trafficking or financing trafficking of narcotics—Appeal against acquittal—Appreciation of evidence—Case property/recovered substances, safe custody of—Principles—Nothing was available on record to establish as to in whose presence the case property had been de-sealed and second sample (as directed by the court) obtained for sending the same to Chemical Examiner—Mere deposition of the prosecution witnesses was not sufficient to prove the safe custody of the case property—Prosecution had not produced the police official before the Trial Court, through whom said second sample of substance had been sent to the Chemical Examiner, which falsified the prosecution case—In absence of any concrete evidence that the recovered substance had been kept in safe custody or that samples had been taken from the recovered substance and transmitted to the office of Chemical Examiner without the same being tampered with or replaced during the transit, the prosecution case could not be said to have been proved—Report of Chemical Examiner did not carry any weight especially in absence of any evidence with regard to the safe custody of recovered substance and safe transmission of the samples to the office of Chemical Examiner—Trial Court had rightly acquitted the accused giving him the benefit of the doubt—Appeal against acquittal was dismissed accordingly.

2017  PCrLJ  323   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ALI VS State

1. 9(c)—Possession, import or export, trafficking or financing of trafficking of narcotic drugs—Appreciation of evidence—Statements of the prosecution witnesses were contradictory regarding recovery and sealing of the recovered ‘Charas Garda’ at the spot—Except the bare opinion that the sealed parcel contained Charas, nothing existed in the analysis report that the Charas was Pukhta or Garda—Prosecution had failed to prove that the recovered Charas was Garda—Prosecution was under the burden to establish/prove by cogent evidence that Charas Garda had been recovered from the possession of the accused—Important link evidence to connect the accused with the Charas Garda recovered from polythene bag wrapped in old clothes was missing; the polythene bag and the old clothes had not been brought on record—Prosecution witness had deposed that Shalwar qameez was lying in the said shopping bag, but the same had not been taken into possession—Trial court had committed grave illegality in convicting the accused without any legal evidence worthy of credence—Appeal against conviction was allowed accordingly.

2017  PCrLJ  323   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ALI VS State

1. 9(c)—Possession, import or export, trafficking or financing of trafficking of narcotic drugs—Investigation and evidence for the offence involves highly technical procedure and calls for strict compliance of the procedure and rules made in that regard.

2017  PCrLJ  14   LAHORE-HIGH-COURT-LAHORE

ABRAR HUSSAIN VS State

1. 9(c)—Possession, import or export, trafficking or financing of trafficking of narcotics—Appreciation of evidence—Non-production of case property before court—Effect—Material contradictions existed in the evidence available on the record—Case property had not been produced by the police before the trial court without any justification, which showed that the police had malice towards the accused regarding recovery of the contraband—Production of the case property before the court was the primary duty of the police in order to bring home the guilt of the accused—Non-production of the case property was fatal to the prosecution’s case, and the same had destroyed the very foundation of the case—Non-production of the case property, therefore, had created a serious dent in the prosecution case—Delay of more than one month in sending the sample of the recovered narcotic to the Chemical Examiner had also cast serious doubt with regard to the occurrence—Prosecution had failed to prove the charge against the accused—High Court, by giving benefit of the doubt, acquitted the accused—Appeal against the conviction was allowed accordingly.

2017  MLD  1529   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SHABBIR alias GOGA BUTT VS State

113. 9(b)(c)—Possessing and trafficking narcotics—Appreciation of evidence—Accused, at the time of his arrest, possessed 1250 grams of contraband charas, which was packed in a shopping bag—Complaint, or seizure memo did not mention as to how many slabs/cakes/slices were there in the said packet—Detail appeared on the record when prosecution witness, deposed that contraband, charas contained 10 complete slabs/slices, and one broken piece, which would mean that charas was consisted of 11 slabs/cakes—Recovered substance, 1250 grams, if devided by eleven, an average of the number of pieces/slices, would make it 113.63 grams against each slice/piece thereof—Testimonies of the prosecution witnesses did not reveal that the complainant segregated a sample from each of the slices/cakes/prices; rather he had deposed that he separated 50 grams from the recovered bulk (1250 grams), so as to render it into one packet for chemical analysis—Such act created a pitfall in the prosecution case—Obscurity hovered over the prosecution case, as to whether sample of 50 grams was segregated by the complainant from one slab/slice, or from all of those which gave rise to a crucial question, which had not been viably answered by prosecution during the course of the trial—Estimation could be that one slab had been used by the complainant to segregate sample of 50 grams for transmitting it to the office of the Chemical Examiner for chemical analysis—Nine or ten slices/slabs of the recovered stuff seemed to have gone un-represented—Rest of the material recovered would be rejected as mere junk—Accused, could be held responsible for having only one slice/slab of charas weighing 113.63 grams in his possession at the time of his arrest—Appeal was partly allowed—Conviction of accused recorded for an offence under S.9(c) of Control of Narcotic Substances Act, 1997 was converted into the one, under S.9(b) of said Act—Accused was sentenced to R.I. for one year and three months, with payment of fine of Rs.9,000.

2017  MLD  30   LAHORE-HIGH-COURT-LAHORE

BILAL alias BALI VS State

S.497—-Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession, import or export, trafficking or financing the trafficking of narcotic drugs—Bail, grant of—False implication—Scope—Accused allegedly had been apprehended at the spot along with the recovered charas—Medico-Legal Report revealed that the duration of the injuries sustained by the accused was within eight to twenty hours, which prima facie proved that the accused might have been manhandled by the police and the contraband might have been planted upon him—High Court made certain observations as to the illegal conduct of the police officials in their dealing with criminals and conduct of investigation with reference to the duty of court under injunctions of Islam—Bail application was allowed accordingly.

2017  YLRN  351   LAHORE-HIGH-COURT-LAHORE

MISSAL KHAN VS State

S.9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Accused was allegedly found possessing five packets of ‘charas’ weighing five Kilograms—Complainant segregated, ten grams charas from each packet for onward transmission to the office of Chemical Examiner for its analysis—Net weight of said five samples was fifty grams in toto—Complaint and seizure-memo, did not disclose as to how many slabs/cakes/slices, were there in one packet—Complainant, deposed in his testimony, that each packet consisted of 9/10 slabs/slices, each showing weight of 111.11 grams or 100 grams—Obscurity hovered over the prosecution case, as to whether sample of ten grams was segregated by the complainant from one slab/slice, or from all 9/10 slabs of a packet—In such an ambiguity, only one estimation could be made that one slab each from all packets, had been used by the complainant to segregate five samples, weighing ten grams each—Prosecution had succeeded in establishing the guilt of accused only to the extent of possessing 500 grams of contraband charas and had failed to establish its case against the accused under S.9(c) of the Control of Narcotic Substances Act, 1997 and could only substantiate offence against accused under S.9(b) of Control of Narcotic Substances Act, 1997—Conviction of accused recorded for offence under S.9(c) of the Act was converted into the one under S.9(b) of the Act—Accused was sentenced to R.I. for one year and six months, and to pay fine—Benefit of S.382-B, Cr.P.C. would be extended to accused, in circumstances.

2017  YLRN  268   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ESA VS State

1. 9(c)—-Possession, import or export, trafficking or financing of trafficking of narcotic drugs—Appreciation of evidence—Plea of alibi, proof of—Sentence, reduction in—Accused, having raised the plea of alibi, had not produced any witness to prove the plea after his examination under S. 342, Cr.P.C—Accused had been allegedly admitted in the hospital for treatment of chest bronchitis, which was far away from his residence; hence, his admission in the hospital was doubtful—Accused had failed to produce the Medical Officer or Record Keeper of the Hospital to substantiate the plea of alibi—During cross-examination of the prosecution witness, no suggestion had been given regarding non-handing over the case property and parcel of sample by the complainant—Deposit of the case property and parcel of the sample by the complainant had not been denied by the accused—Prosecution witnesses were consistent and trustworthy, and the same therefore had to be relied upon without any demur—Accused had virtually admitted the occurrence to some extent—Accused was neither a previous convict nor involved in any cases of like nature; hence, accused’s case called for lenient view as to quantum of sentence—High Court, modifying the sentence, reduced the same to that already undergone by the accused; the amount of fine was also reduced—Appeal against conviction was decided accordingly.

2017  PCrLJN  217   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ISHAQUE VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 476—Penal Code (XLV of 1860), S. 194—Giving false evidence by witness with intent to procure conviction of capital offence—Accused, a police official was convicted and sentenced on the ground that he prepared a forged and fabricated recovery memo in respect of alleged recovery of narcotics, produced before the court and also gave false evidence—Recovery witnesses showed complete obliviousness about the alleged occurrence—Accused rendered a couple of controversial depositions, when appeared as witness in the trial of accused of main case—Effect—Accused had not been charge-sheeted—No evidence had been produced by the prosecution as to the fact of telling a lie by the accused—Testimony of the accused had gratuitously been reproduced in the impugned judgment, without affording any opportunity to the accused during his trial, to offer an explanation thereto, which made the whole affair grossly illegal—Appeal against conviction was accepted.

2017  PCrLJN  214   LAHORE-HIGH-COURT-LAHORE

NOOR IBRAR VS State

Ss. 9(c) & 25— Possessing and trafficking narcotics—Appreciation of evidence—Sentence, reduction in—Accused was apprehended by the Police party at the spot, carrying a bag containing 19 packets—Out of those 19 packets 15 packets contained garda charas weighing 15 Kg, 2 packet containing charas weighing 2 Kg, and other 2 packets contained 2 Kg opium—Complainant and witness of recovery were reliable witnesses—All the prosecution witnesses had made consistent statements before the Trial Court—No glaring contradiction was pointed out in their evidence, which could create any doubt in the prosecution story; so as to extend its benefit in favour of accused—Accused had remained unable to point out any background of animosity between him and Police Officials to justify his false implication in the case—Section 25 of the Control of Narcotic Substances Act, 1997 excluded the application of S.103, Cr.P.C.—Evidence of Police Officials, was worthy of credence as that of any other witness and conviction could not be set aside on that score alone—Judgment of the Trial Court to the extent of accused on the charge of offence under S.9(c) of the Control of Narcotic Substances Act, 1997, did not call for any interference—Quantum of sentence awarded to accused appeared to be unjustified, as 2 packets of charas consisted of many pieces, but the prosecution case was silent about the exact number of pieces of charas recovered from said 2 packets—Testimony of prosecution witnesses, did not reveal that complainant segregated a sample from each of the packets/pieces for chemical analysis, which had created a pitfall in the prosecution case—Besides one and half packet of garda charas weighing 1500 grams, one packet of opium weighing 1000 grams and 200 grams charas, rest of the material recovered, would be rejected as mere junk—Accused, could be held responsible for having said quantity of narcotics—Maintaining conviction of accused, his sentence of imprisonment for life, was reduced to R.I. for six years—Benefit of S.382-B, Cr.P.C., was also extended to accused, in circumstances.

2017  PCrLJN  209   LAHORE-HIGH-COURT-LAHORE

Mst. PARVEEN BIBI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Contradictions in the case of prosecution—Tampering of sample of seized substance—Contradictions in the case of prosecution were on record—Sample taken from the seized substance and sent to the office of Chemical Examiner had not been proved by the prosecution—Nothing was on record that sample of seized substance remained intact and same was deposited with the office of Chemical Examiner without tampering— Possibility that the sample might have been tampered with could not be ruled out—Prosecution had not established the safe custody of recovered substance—Oral evidence of prosecution witnesses had not been corroborated by the report of Chemical Examiner—Mere oral evidence of prosecution did not discharge the heavy burden lay on it—Prosecution had not been able to prove the charge levelled against the accused—Accused was acquitted of the charge and her surety was discharged from the liability—Appeal was allowed in circumstances.

2017  PCrLJN  204   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD JAVED VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.2(d) & 9(c)—Possessing and trafficking narcotics—Bail, grant of—Further inquiry—Contents of the FIR, as well as the report of the Chemical Examiner, did not reveal that when alleged substance was recovered, was containing flowers or fruiting top and it was nowhere mentioned that the cannabis plant (Bhung) was with seeds or not, which was against the provisions of S.2(d) of the Control of Narcotic Substances Act, 1997—Whether the contraband was a simple plant or not, was to be determined by the Trial Court after recording the evidence—Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, prima facie, would favour the accused—Contraband recovered, neither was described in the Control of Narcotic Substances Act, 1997, nor in the Prohibition (Enforcement of Hadd) Order, 1979—Case of accused would become one of further inquiry, entitling him for the grant of post-arrest bail—Accused was granted bail, in circumstances.

2017  PCrLJN  114   LAHORE-HIGH-COURT-LAHORE

ABDUL GHAFFAR alias HAJI BAGGU VS State

1. 9(c)—Possession of narcotic drugs—Appreciation of evidence—Complainant (police official) alleged that he along with other contingents conducted raid and arrested accused persons in possession of charas (narcotic)—Ocular account was furnished by complainant and prosecution witness during first round of trial—After remand of case by High Court, the Trial Court proceeded to re-call the prosecution witnesses and recorded cross-examination—No coercive measure was taken to re-call Moharrir for cross-examination and even the defence also did not submit any application to cross-examine the said witness—Despite grant of opportunity to the accused to cross-examine the said witness, the object of remanding the appeal had not been served as no coercive measures were adopted to procure the attendance of aforesaid witness for cross-examination, which negated the concept of fair trial as contemplated under Art. 10-A of the Constitution—High Court observed that remand of care for the second time was not appropriate as the accused had already suffered the agony of trial for last more than seven years—Accused on such score only deserved acquittal from the charge instead of remanding the case second time—Only evidence available with the prosecution to testify recovery memo was the deposition of prosecution witness who had though testified the same yet it did not find unimpeachable corroboration of any other prosecution witness which was essential to prove the factum of recovery from the accused—Prosecution had another important witness to testify the recovery memo being member of raiding party but the said witness was withheld by prosecution—Presumption under Art. 129(g) of Qanun-e-Shahadat, 1984 would be that had the said witness been produced by the prosecution in the witness box, he would have not supported the prosecution version qua the factum of recovery from the possession of accused—Sole deposition of prosecution witness qua recovery of contraband substance from the accused required corroboration but the same lacked in the case, therefore, his credibility without any corroboration was not safe to be believed—Sample of recovered contraband substance was sent to the Office of Chemical Examiner through carrier (prosecution witness) who deposed that he received a sealed parcel containing charas, he had nowhere submitted that the sealed parcel was earlier submitted in the office of Excise and Taxation and after getting letter from the said office, the parcel was deposited in the office of Chemical Examiner—Report of Chemical Examiner showed the name of forwarding officer as Excise and Taxation Officer who had nothing to do with the same—Excise and Taxation Officer was neither a member of raiding party nor a person to whom the parcel was delivered for onward transmission to the office of Chemical Examiner in the intervening period when the parcel was received from the Moharrir of Police Station and deposited in the office of Chemical Examiner—Name of Excise and Taxation Officer as forwarding officer was a question mark with regard to safe custody of recovered contraband substance—Nothing was available from the record with regard to the role of Excise and Taxation Officer being a forwarding officer—Even if it would be presumed that the parcel was first submitted to the office of Excise for getting covering letter, the possibility of tampering with the sample could not be ruled out—Safe custody of the narcotics was necessary ingredient to prove the charge of narcotics—Even a positive report of Chemical Examiner did not support the prosecution version as the parcel had not been directly received from the representative of the police to the office of Chemical Examiner and intrusion of Excise and Taxation Officer would cast serious doubt with regard to the safe custody of the sample contraband substance—Even a single doubt was sufficient to extend benefit in favour of an accused but the present case was replete with doubts—Accused was acquitted—Appeal was allowed accordingly.

2017  PCrLJN  32   LAHORE-HIGH-COURT-LAHORE

NASEER AHMAD alias MATTO VS State

Ss. 9(c), 15, 18, 21 & 36—S.R.O. 656(I)/2004 dated 2-8-2004—Possessing and trafficking narcotics—Appreciation of evidence—Presence of prosecution witness at the time of recovery was established—Said witness remained firm on all aspects of the recovery proceedings—Sub-Inspector of Police, who appeared as prosecution witness, completely deposed in line with the other prosecution witnesses; and his evidence could not be shattered in any way—Report of Chemical Examiner, also affirmed that recovered substance was “charas”—Accused admitted that none of the officials, had any previous enmity—No convincing evidence was led by accused which could shatter case of prosecution—Prosecution had fully complied with the mandate of S.21 of the Control of Narcotic Substances Act, 1997—Investigation in the case was conducted strictly in accordance with the mode provided under the law—No legal impediment existed in the way of Police Officer, who was a complainant of the case and also acted as an Investigating Officer, simultaneously, unless accused established some prejudice as a consequence of such dual capacity—Quantum of punishment, was dependent upon the quantity of the recovered substance, and if the quantity would exceed ten Kilograms, the punishment would not be less than imprisonment for life—Eleven Kilograms charas having been recovered from accused and two kilograms charas have been recovered from co-accused, accused could not be awarded punishment less than imprisonment for life—Present was not the only case against accused, but he was involved in nine other cases relating to the same offence—Prosecution had fully proved its case against accused; and there was no doubt left with regard to guilt of accused—Trial Court had committed no illegality, while convicting accused—Accused having failed to point out any illegality or material irregularity, requiring interference of High Court, judgment of the Trial Court was maintained, in circumstances.

2017  PCrLJN  15   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD YASIN VS State

1. 9(c)—Possession, import or export, trafficking or financing of trafficking of narcotic drugs etc.—Appreciation of evidence—Prosecution witnesses had fully corroborated each other—Recovered narcotics had remained in safe custody till the same were transmitted to the office of Forensic Science Agency—Report of the Chemical Examiner regarding recovered substance was in positive—Defence witnesses, being close relations, were interested witnesses— Appeal against conviction was dismissed accordingly.

2017  PCrLJN  6   LAHORE-HIGH-COURT-LAHORE

LIAQAT ALI VS State

1. 9(c)—Possessing and trafficking narcotics— Appreciation of evidence— Prosecution had failed to prove the safe custody of the case property—Safe custody of the recovered substance, or its samples, being not discernable from the record, it was extremely unsafe to uphold and maintain conviction and sentence of accused recorded by the Trial Court—Prosecution case was that charas was found in shape of slices, but complainant separated only 10 grams for chemical analysis, which did not meet with the requirements that if no sample was taken from any particular packet/slab; or if different packets not kept separately for their analysis by the Chemical Examiner, then the same would not be representative sample— Prosecution had failed to prove its case against accused and impugned judgment of the Trial Court being based on wrong premises of law and facts, impugned judgment was set aside; accused was acquitted of the charges and being on bail, his surety stood discharged.

2017  YLR  2308   KARACHI-HIGH-COURT-SINDH

RAEES KHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(b)—Possession of narcotic drugs, etc.—Bail, grant of—Further inquiry—Accused was apprehended at the Airport and allegedly twelve polythene packets containing 580 grams crystalline amphetamine were recovered from his suit-case during scanning the baggage—Recovered packets were not weighed separately—Lodging the FIR prior to preparation of recovery and arrest was deviation from prescribed procedure and violation of principles of administration of criminal justice, which had created doubt about sealing and weighing of recovered narcotic substance—Challan had been submitted before the Trial Court and during period of more than five months charge had not been framed—No probability of early commencement of trial existed—Witnesses were government officials, hence there was no apprehension of tampering with prosecution evidence—Alleged offence was punishable up-to seven years which did not fall within ambit of restraining clause of S. 497(2), Cr.P.C.—Accused had succeeded to make out case for grant of post-arrest bail on the ground of further inquiry as contemplated under S. 497(2), Cr.P.C.—Bail was granted accordingly.

2017  YLR  2141   KARACHI-HIGH-COURT-SINDH

Mst. SHAHZADI alias AMIRZADI VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking of narcotics—Bail, grant of—Further inquiry—Both co-accused had already been enlarged on bail—No criminal record of accused existed and she was never challaned in any criminal case—Averments of FIR were silent as to in which shape alleged charas was recovered—Record though did not show that nine pieces of charas were recovered from the possession of accused, but Chemical Examiner had mentioned that nine pieces of charas were examined by him—Recovered charas was also not weighed at the spot and total weight was mentioned approximately, which required serious consideration—Investigation had already been completed, and accused was no more required for investigation—Bail could not be withheld as matter of punishment—Trial could not be concluded within time, due to non-production of under trial prisoner and non-availability of witnesses—After lapse of six months not a single witness had been examined by the prosecution—Complainant, despite prior information neither associated any independent witness, nor he made any serious efforts to hire public person to maintain the transparency of recovery—Accused being a lady of old age was entitled for concession of bail—Accused had made out a case for grant of bail on the ground of further inquiry, she was admitted to post-arrest bail, in circumstances.

2017  YLR  1304   KARACHI-HIGH-COURT-SINDH

ZUBAIR KHAN  VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession and trafficking of narcotics—Appreciation of evidence—Officials of Excise Department as recovery witnesses—Competence—Principles—Prosecution case was that 80 kilograms charas was recovered from the vehicle of accused—Prosecution witnesses were officials of Excise Department—Defence had alleged that no private witness was associated at the time of recovery, which was violation of provision of S. 103, Cr.P.C.—Validity—Application of S. 103, Cr.P.C. had been excluded in such cases in view of S. 25 of Control of Narcotic Substances Act, 1997—Excise officials were as good witnesses as other public witnesses—Evidence of such witnesses could not be discarded merely for the reason that they belong to Excise Department—Complainant and officials of Excise Department had no reason and enmity with accused to falsely implicate him in the present case—Appeal against conviction was dismissed.

2017  YLR  1304   KARACHI-HIGH-COURT-SINDH

ZUBAIR KHAN  VS State

1. 9(c)—Possession and trafficking of narcotics—Appreciation of evidence—Allegation against accused was that 80 packets of charas were found from the truck of accused, each packet contained 1-kg of charas—Complainant and recovery witnesses had proved that accused was driving the truck at the time of his arrest and 80-Kgs charas was recovered from the secret cavities of the truck—Knowledge of charas kept in the truck would be attributed to the accused as he was in-charge of the truck—No other person was sitting in the truck at the time of his arrest—Accused being driver could not be absolved from responsibility regarding the narcotic being carried in his vehicle—Circumstances established the guilt of accused—Appeal against conviction was dismissed accordingly.

2017  YLR  1304   KARACHI-HIGH-COURT-SINDH

ZUBAIR KHAN  VS State

1. 9(c)—Possession and trafficking of narcotics—Driver of the vehicle to be responsible—Person on driving seat of the vehicle would be held responsible for transportation of the narcotics.

2017  YLR  1304   KARACHI-HIGH-COURT-SINDH

ZUBAIR KHAN  VS State

Ss. 9(c) & 29—Possession and trafficking of narcotics—Appreciation of evidence—Proof of possession—Scope—Once the prosecution had established the case under S.29 of Control of Narcotic Substances Act, 1997 burden would be shifted upon the accused to prove contrary to the plea of prosecution—In the present case, Chemical Examiner’s report was in positive, which proved that substance recovered from the secret cavities of the truck of the accused was charas—Prosecution had established that the person who was found in possession of the narcotics had committed the offence while the defence had failed to discharge its burden in terms of S.29(d) of Control of Narcotic Substances Act, 1997—Appeal against conviction was dismissed accordingly.

2017  YLR  1292   KARACHI-HIGH-COURT-SINDH

MURAD ALI VS State

1. 9 (c)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic substance—Appreciation of evidence—Benefit of doubt—Admittedly, police had prior information that the accused along with absconding accused were going on motorcycle with narcotics in their possession—Despite that fact, police did not collect any private person to witness the occurrence—Exclusion of S.103 Cr.P,C, by S. 25 of the Control of Narcotic Substances Act, 1997 was not meant to completely absolve the police from asking for private witnesses to witness recovery process—Attempt to associate private witnesses was not likely to result in escape of the accused—Accused was acquitted, in circumstances, by setting aside conviction and sentence recorded by the Trial Court.

2017  YLR  1292   KARACHI-HIGH-COURT-SINDH

MURAD ALI VS State

1. 9(c)—Possession of narcotic substance—Appreciation of evidence—Benefit of doubt—Non-examination of Investigating officer—Effect—Prosecution case was that three-kilo and 30-grams of charas was recovered from the possession of accused—Accused was arrested at the spot—Prosecution had failed to examine the Investigating Officer and no plausible and cogent reason was produced in that context—Importance of the Investigating Officer in such like cases was always material—Investigating Officer was not supposed to blindly accept what the complainant alleged in the FIR but without being influenced from status or position of complainant, he had to bring the truth on surface—Non-examination of the Investigating Officer in such like cases would be fatal or material prejudice to the accused—Said material irregularity was sufficient for setting aside the conviction—Accused was acquitted, in circumstances.

2017  YLR  1292   KARACHI-HIGH-COURT-SINDH

MURAD ALI VS State

1. 9(c)—Possession of narcotic substance—Appreciation of evidence—Benefit of doubt—Prosecution case was that three kilo and 30-grams charas was recovered from the possession of accused—Prosecution had examined only two witnesses in order to prove the charge against the accused—Said witnesses were not steadfast on material points i.e. departure to alleged recovery of the contraband articles—Delay in sending the sample of the narcotic to the Chemical Examiner for examination and report—No attempt was made by prosecution to prove safe custody of the substance, adverse presumption would be drawn against the prosecution—Accused was acquitted, in circumstances, by setting aside conviction and sentence recorded by the Trial Court.

2017  YLR  874   KARACHI-HIGH-COURT-SINDH

QAMAR ZAMAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 14 & 15—Possession and trafficking of narcotics, aiding, abetment or association in such offences—Bail, grant of—Further inquiry—Challan had been submitted and accused was no more required for further investigation—All prosecution witnesses were police officials and to procure their attendance was not a difficult task for the prosecution, and there was no apprehension of tampering with prosecution evidence—Accused was behind the bars for the last more than one year and during the said period, even charge had not been framed against the accused—Early commencement of trial was not expected in near future—Prosecution had not furnished any substance that accused was involved in cases of similar nature in past nor he was previous convict and there was no probability of his abscondance—Further detention of accused would not serve any useful purpose—Accused was allowed bail in circumstances.

2017  YLR  874   KARACHI-HIGH-COURT-SINDH

QAMAR ZAMAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 14 & 15—Possession and trafficking of narcotics, aiding, abetment or association in such offences—Bail, grant of—Further inquiry–Prosecution case was that accused was apprehended from the Airport’s departure lounge and from his bag, narcotic drug was recovered—Complainant had a plenty of time after receiving information, to associate any private person to act as witness to maintain the transparency of the recovery of narcotic substance but he did neither make any effort to associate public nor any private witness prior to the interception of the accused—Such demeanor of the complainant in absence of plausible explanation, could not be ignored—Fact remained that case of accused called for further inquiry within the scope of S. 497(2), Cr.P.C.—Bail was allowed in circumstances.

2017  YLR  874   KARACHI-HIGH-COURT-SINDH

QAMAR ZAMAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 9(c)—Possession of narcotic—Bail, grant of—Further inquiry—Border line case between Ss. 9(b) & 9(c) of Control of Narcotic Substances Act, 1997—Accused was allegedly found in possession of narcotic substance—Complainant did not mention the specific shape of packing of recovered substance as to whether entire substance was packed in one or more packets—No detail of mode of weighing the recovered substance as to whether it was weighed with its packing or in its pure shape to assess its total weight—If the recovered substance was weighed along with its packing, the weight of recovered substance without the packing would be less—Attending circumstances suggested that case would fall within the ambit of S. 9(b) of Control of Narcotic Substances Act, 1997, in that eventuality, the case of accused was marginally higher bringing the case to border line case between clauses (b) & (c) of S. 9 of Control of Narcotic Substances Act, 1997—In such backdrop, the case of the accused, in circumstances, one of further inquiry falling within the purview of S.497(2), Cr.P.C.—Accused was allowed bail accordingly.

2017  PCrLJ  1525   KARACHI-HIGH-COURT-SINDH

FEROZE KHAN VS State

1. 9(c)— Possession of narcotic substance— Appreciation of evidence—Sentence, reduction in—Prosecution case was that 15000 grams opium was recovered from the possession of accused persons—Accused persons were arrested at the spot—Prosecution witnesses had fully supported the case and corroborated the statements of each other—Prosecution witnesses were consistent on the material points that opium was recovered from accused persons—Samples were separated and sealed—Case property was sealed at the spot in presence of witnesses—Nothing could be brought on record despite of lengthy cross-examination by the defence—Recovered substance was proved to be opium by the positive report of chemical analysis—Accused had failed to prove their enmity with the police—Appeal against conviction was dismissed, however keeping in view the settled yardstick for punishment, their conviction and sentence were reduced/modified accordingly.

2017  PCrLJ  1525   KARACHI-HIGH-COURT-SINDH

FEROZE KHAN VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic substance—Appreciation of evidence—Police officials as sole recovery witnesses, competency of—Principles—Prosecution case was that 15000 grams opium was recovered from the possession of accused persons—Prosecution witnesses were police officials—Defence had alleged that private witness was associated at the time of recovery, which was violation of provision of S. 103, Cr.P.C.—Validity—Application of S. 103, Cr.P.C. had been excluded in such cases in view of S. 25 of Control of Narcotic Substances Act, 1997—Appeal against conviction was dismissed, however keeping in view the settled yardstick for punishment, their conviction and sentence were reduced/modified accordingly.

2017  PCrLJ  1399   KARACHI-HIGH-COURT-SINDH

NAZAR MUHAMMAD VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Qanun-e-Shahadat (10 of 1984), Art. 121—Possession, import or export, trafficking or financing of trafficking of narcotic drugs—Appreciation of evidence—Mode of making search and arrest—Burden of proving that case of accused fell within exceptions—Association of public/private witnesses under S. 103, Cr.P.C., requirement as to—Applicability—Statement of police witnesses—Evidentiary value—Complainant and Investigating Officer being the same person—Effect—Prosecution’s prerogative as to number of its witnesses to be examined—Delay caused in completion of formalities—Effect—Minor contradictions/improvements—Effect—Prosecution case was based on the evidence of the complainant/Excise Inspector and mashir/Excise Constable supported by the Chemical Analyzer’s report—Both said witnesses had narrated the similar facts of the case, including snap checking, arrest of the accused and recovery of 120 kg Charas from the secret cavities of the truck wrapped in 120 packets weighting 1 kg each—Prosecution witnesses had deposed the details of the incident in the same line and fully supported the averments of the FIR and mashirnama of arrest and recovery as well as corroborated the evidence of each other—Defendant had failed to shatter the authenticity of the prosecution evidence during the cross-examination—Provisions of S. 103, Cr.P.C. for association of two public persons, was not applicable in cases of recovery of narcotics from a moving vehicle on the Highways—Police witnesses were as good and respectable as other public witnesses and their statements could not be discarded merely for the reason they were the police employees—Accused had failed to point out any kind of animosity or ulterior motives on part of the complainant regarding his false involvement in present case—Accused raised the objection that the police had released the real culprit, but he had not moved any application before the higher authorities by disclosing the name of the actual culprit nor made any complaint for transfer of the investigation to any other Investigating Officer nor any such application had been moved to the Trial Court; therefore, said plea could not have been considered in view of Art. 121 of Qanun-e-Shahadat, 1984—Complainant had taken separate representative samples from the recovered 129 packets of narcotics substance which was corroborated by the Chemical Analyzer’s report, which reflected the 120 sealed paper packets weighing 100 grams each, had been received for chemical examination and said substance had been declared as Charas—Complainant being a police officer was competent to investigate the case if he was witness of offence, and such recovery could not have been defeated merely on the ground that the complainant and the Investigating Officer was the same police officer, if no mala fide was established against the complainant—Prosecution had the prerogative to pick and choose any witness to be examined or not during the trial, and due to non-examination of any witness, no adverse inference could be drawn against the prosecution—Complainant and the mashir examined by the prosecution had satisfactorily furnished explanation for the delay of four days in lodgment of the FIR, as they had consumed three and half hours in checking of 120 packets and completion of other formalities; thus, the delay would not be fatal to the recovery of the narcotics—Minor contradictions or improvements would not be fatal to the prosecution case, and the same were to be over-looked—Prosecution had prima facie succeeded to prove the guilt of the accused—High Court, therefore, maintained the conviction/sentence—Appeal against conviction was dismissed accordingly.

2017  PCrLJ  1298   KARACHI-HIGH-COURT-SINDH

BASHIR VS State

1. 9(c)— Possession of narcotics— Appreciation of evidence—Sentence, modification of—Prosecution case was that twenty bags of heroin powder were recovered from attache case/suitcase of accused—Complainant had narrated the whole story of arrest of accused and recovery of heroin, which was quite trustworthy and confidence inspiring—Prosecution witnesses had supported the evidence of complainant—No major contradiction or inherent defect existed in the evidence of complainant on any material point— No specific enmity had been suggested during the cross-examination of official witnesses—Samples were sent to Chemical Examiner within two days and report was positive—Evidence of the Excise officials was fully corroborated by the positive chemical report—Recovery of Twenty kg. heroin could not be believed to have been foisted upon the accused by the police—Appeal against conviction and sentence was dismissed, however keeping in view the settled yardstick for punishment, fine of Rs. One million, in default, five years’ R.I. was modified to Rs. three lac or in default, one year and six months’ simple imprisonment accordingly.

2017  PCrLJ  1298   KARACHI-HIGH-COURT-SINDH

BASHIR VS State

1. 9(c)— Possession of narcotics— Appreciation of evidence—Sentence, modification of—Recovery of twenty kilograms of heroin powder from the accused—Complainant as Investigating Officer—Effect—No public witness—Contention of accused was that complainant himself was Investigating Officer and all prosecution witnesses were officials of Excise Department—Validity—Police Officer (Excise officer) was not prohibited under the law to be a complainant, if he was a witness to the commission of an offence and also an Investigating Officer, so long as it did not in any way prejudice the accused—Nothing was available on record to show that said officials had enmity against the accused to plant a huge quantity of heroin—Accused had failed to produce evidence in defence to establish animosity against the prosecution witnesses—Witnesses had passed the test of lengthy cross-examination but defence had failed to make any dent— Appeal against conviction and sentence was dismissed, however keeping in view the settled yardstick for punishment, fine of Rs. One million, in default, five years’ R.I. was modified to Rs. three lac or in default, one year and six months’ simple imprisonment accordingly.

2017  PCrLJ  1298   KARACHI-HIGH-COURT-SINDH

BASHIR VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotics—Appreciation of evidence—Sentence, modification of—Police officials as sole recovery witnesses, competency of—Principles—Prosecution case was that Twenty kg. heroin powder was recovered from the possession of accused—Prosecution witnesses were Excise officials—Defence had alleged that no private witness was associated at the time of recovery, which was violation of provision of S. 103, Cr.P.C.—Validity—Application of S. 103, Cr.P.C. had been excluded in such cases in view of S. 25 of Control of Narcotic Substances Act, 1997—Complainant/Excise Inspector deposed that he asked 4/5 private persons to act as witness but they had refused, which showed that complainant made efforts to make private persons as witness in the case but they refused—Reluctance of general public to become witness in such like cases was a judicially recognized fact and there was no option left but to consider the evidence of official witnesses as no legal bar had been imposed in that regard—Appeal against conviction and sentence was dismissed, however keeping in view the settled yardstick for punishment, fine of Rs. One million, in default, five years’ R.I. was modified to Rs. three lac or in default, one year and six months’ simple imprisonment accordingly.

2017  PCrLJ  1012   KARACHI-HIGH-COURT-SINDH

MUHAMMAD HANIF VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)— Possession of narcotic substance— Bail, refusal of—Prosecution story was that 4000 kilogram of charas was recovered from secret box of the oil tanker driven by accused—Accused being driver of the vehicle was supposed to be custodian of the same—Merely shrugging off the shoulders by the accused that he had no knowledge of what was there in the secret box of the vehicle, was a self-defeating argument—Accused was in exclusive possession of the oil tanker, therefore, he was reasonably connected with the presence of huge quantity of charas kept in secret cavities of the oil tanker—Offence punishable under Control of Narcotic Substances Act, 1997, was by its nature heinous and considered to be the offence against society at large—Offence fell in the ambit of prohibitory clause of S. 497(1), Cr.P.C.—Facts and circumstances established that accused failed to make out a case for grant of bail—Bail was refused in circumstances.

2017  PCrLJ  1012   KARACHI-HIGH-COURT-SINDH

MUHAMMAD HANIF VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic substance—Bail—Police witnesses—Credibility–­Private persons were asked to act as witnesses in the case but they refused due to fear of narcotic paddlers; police officials were therefore, associated as witnesses—Members of police force were competent witnesses in the eyes of law and could be credited with veracity unless they were demonstrated to be false witnesses having maliciously involved an innocent person in the commission of offence for ulterior motives.

2017  PCrLJ  501   KARACHI-HIGH-COURT-SINDH

HUSSAIN BUX alias KABACHO CHANNA VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)—Seizure of narcotic—Chemical analysis of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution alleged that 1050 grams charas was recovered from the possession of accused—Delay of about seven days in sending the samples of narcotics to Chemical Examiner for analysis was not explained by the prosecution—Whether alleged narcotics was in safe custody during the intervening period had also not been explained by prosecution—Exercise of sending sample for testing was required to be completed within seventy-two hours of the recovery—Inordinate delay in sending samples was fatal to the case of prosecution—Accused was acquitted in circumstances.

2017  PCrLJ  501   KARACHI-HIGH-COURT-SINDH

HUSSAIN BUX alias KABACHO CHANNA VS State

1. 9(c)—Seizure of narcotic—Appreciation of evidence—Benefit of doubt—Accused was allegedly found holding one plastic shopper in his hand, containing charas weighing 1050 grams at the time of raid—Despite the incident having occurred in a busy road where many private persons were available, Investigating Officer did not try to arrange any witness of the locality, who might have seen the accused in any manner linked with the said packet of narcotics—Evidence of police officials was as good as others, but in cases, where public persons were available at the site, and prosecution failed to join them as witnesses evidence of police officials lost its sanctity and evidentiary value—Mashirnama of the arrest and recovery bore over-writing in respect of weight of the recovered charas, which created doubt regarding authenticity of mashirnama—Prosecution witnesses were not on same line with each other on material points, which created doubt regarding authenticity of the prosecution evidence—Accused was acquitted on the basis of benefit of doubt in circumstances.

2017  MLD  1917   KARACHI-HIGH-COURT-SINDH

ASIF VS State

1. 9(c)—Possession of narcotic drugs—Appreciation of evidence—Complainant and mashir (witness) deposed that sixty seven rods of charas (narcotic) were recovered from the possession of accused—Investigating Officer deposed that three pieces of charas and sixty six rods of charas were handed over to him by the complainant—Complainant deposed that they returned to specific police station and got registered FIR of the case against accused while mashir deposed that they returned to different police station and FIR was lodged there—Complainant in cross-examination deposed that they reached at CIA Centre on the relevant date at 8:00 a.m. and so also his staff came there while mashir in cross examination deposed that on relevant date of incident he reached at CIA Centre for duty at 2100 hours (night)—Complainant and the mashir were unable to tell the way they had adopted to reach at the place of occurrence—Complainant denied the suggestion that present accused was not known to him prior to the present case while mashir deposed that present accused was not known to them previously except in the present case—As per prosecution case three big pieces and sixty seven rods of charas were allegedly recovered from the accused while as per report of the Chemical Examiner three slabs and sixty seven rods of charas were sent to him for chemical examination—Such contradictions had destroyed the intrinsic value of the prosecution case—Arrest and recovery in the manner as alleged by the prosecution had become totally doubtful—Prosecution had not been able to prove its case beyond any reasonable shadow of doubt, appeal was allowed accordingly.

2017  MLD  1576   KARACHI-HIGH-COURT-SINDH

Mst. ROZINA BEGUM VS State

Ss. 6 & 9 (c)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic substance—Appreciation of evidence—Police officials as sole recovery witnesses, competency of—Principles—Prosecution case was that 30-kilograms charas was recovered from the suitcases of accused—Prosecution witnesses were police officials—Defence had alleged that no railway employee or private witness was associated by the police—Validity—Section 25 of Control of Narcotic Substances Act, 1997 had excluded the applicability of S.103, Cr.P.C. in narcotic cases—Appeal was partly allowed, conviction of accused was maintained but her sentence was reduced from life imprisonment to rigorous imprisonment for five years and six months.

2017  MLD  1576   KARACHI-HIGH-COURT-SINDH

Mst. ROZINA BEGUM VS State

Ss. 6 & 9(c)—Possession of narcotics—Appreciation of evidence—Recovery of charas—Sentence—Humanitarian grounds—Admittedly accused was a woman and it was alleged that she was not expected to be involved in the business of drug or had the strength to carry two suitcases—Scope—Normally drug peddlers had adopted obnoxious device by engaging womenfolk and the children and through them, crimes were being committed and ultimately mercy was sought against such accused on humanitarian grounds—Adequate punishment, instead of showing sympathy on the ground that accused was woman or child, would be awarded to curb such menace otherwise the actual accused involved in such heinous crime, which was against the society, would be encouraged and carriers would be freely available to promote the crime with the hope that after spending small period in the prison, they would be set at liberty despite of committing heinous crime of drug trafficking—Appeal was partly allowed, conviction of accused was maintained but her sentence was reduced from life imprisonment to rigorous imprisonment for five years and six months.

2017  MLD  1576   KARACHI-HIGH-COURT-SINDH

Mst. ROZINA BEGUM VS State

Ss. 6 & 9(c)—Possession of narcotics—Appreciation of evidence—Sentence, reduction in—Prosecution case was that a total of 30 packets of charas, each weighing one kilogram (gross) were recovered and seized from the accused—Two out of the thirty packets were of a black/cream color whereas the remaining twenty eight packets were of a red/brown colour—One out of the two black/cream coloured packets and two out of the twenty eight red/brown packets were sealed and sent to the Chemical Examiner for analysis—Circumstances of the case showed that sampling had not been done as per requirement of law as the samples of charas sent for chemical analysis were not representative samples of the entire seizure—Accused was therefore, liable for three kilograms charas and not 30-kilograms as was the prosecution case—Appeal was partly allowed, conviction of accused was maintained but her sentence was reduced from life imprisonment to rigorous imprisonment for five years and six months.

2017  MLD  1576   KARACHI-HIGH-COURT-SINDH

Mst. ROZINA BEGUM VS State

Ss. 6, 9(c) & 21—Possession of narcotics—Appreciation of evidence—Arrest of accused in violation of S. 21, Control of Narcotic Substances Act, 1997—Allegation against accused was that 30-kilograms charas was recovered from her suitcases—Accused contended that officer who arrested was of the rank of Assistant Sub-Inspector in violation of S. 21 of Control of Narcotic Substances Act, 1997—Record showed that Assistant Sub-Inspector arrested the accused and taken the alleged charas into his custody—Provisions of S. 21 were not applicable when an accused was apprehended by the police during their normal duties—Provisions of S. 21 were directory in nature and non-compliance would not make the trial or conviction bad in the eyes of law—Appeal was partly allowed, conviction of accused was maintained but her sentence was reduced from life imprisonment to rigorous imprisonment for five years and six months.

2017  MLD  1576   KARACHI-HIGH-COURT-SINDH

Mst. ROZINA BEGUM VS State

Ss. 9(c) & 29—Qanun-e-Shahadat (10 of 1984), Art. 122—Possession of narcotics—Appreciation of evidence—Burden of proof—Defence had alleged that Trial Court did not take into consideration that mens rea accompanied the actus reus to make a person liable for offence—Validity—Allegation against the accused was that she was in possession of 30-kilograms of charas—If narcotic substance was recovered from the possession of accused, presumption would be that accused had committed the offence unless and until the contrary was proved—In the present case, prosecution had proved through evidence that accused was apprehended red handed while in possession of two suitcases with contraband substance in the same—Samples sent to the Chemical Examiner were treated as charas—Accused had taken the defence that because she did not satisfy the illegal demands of the policemen, she had been implicated in the case—No enmity was alleged against prosecution witnesses and there was no possibility for false implication without having any ulterior motive, which though alleged by the accused remained disproved in trial—Prosecution witnesses were not confronted with question regarding the allegation of illegal gratification—Prosecution, in circumstances, discharged the onus accordingly—Accused failed to rebut the presumption, against her under S.29, Control of Narcotic Substances Act, 1997—Circumstances established that prosecution proved its case against the accused persons beyond a reasonable doubt—Appeal was partly allowed, conviction of accused was maintained but her sentence was reduced from life imprisonment to rigorous imprisonment for five years and six months.

2017  MLD  1514   KARACHI-HIGH-COURT-SINDH

AMEEN VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules 2001, R.4(2)–Recovery of narcotics—Appreciation of evidence—Delay in sending samples–Charas weighing Five-kilograms was recovered from accused—Plea raised by accused was that charas was sent to Forensic Science Laboratory after seven days of recovery; that Control of Narcotic Substances (Government Analysts) Rules, 2001, described that contraband substance should have been sent to Chemical Examiner within seventy two hours of recovery and that positive report could not be relied upon on account of delay—Validity—Control of Narcotic Substances (Government Analaysts) Rules, 2001 had placed no bar on the Investigating Officer to send the samples beyond seventy two hours of the seizure—Said Rules were directory and not mandatory in nature—Failure to follow the Rules would not render the search, seizure and arrest under Control of Narcotic Substances Act, 1997 an absolute nullity and made the entire prosecution case doubtful—Delay of seven days in sending the charas to the Chemical Examiner for expert opinion could not be treated fatal for the prosecution case in absence of objection regarding the same having been tampered with or manipulated—No such allegation with the case property was on record—Appeal against conviction was dismissed in circumstances.

2017  MLD  1514   KARACHI-HIGH-COURT-SINDH

AMEEN VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession and trafficking of narcotics—Appreciation of evidence—Police official as recovery witnesses, competency of—Principles—Prosecution case was that five kilograms of charas was recovered from the possession of accused—Prosecution witnesses were police officials—Defence had alleged that no private witness was associated at the time of alleged recovery of charas, which was violation of provision of S. 103 Cr.P.C.—Validity—Record showed that charas was recovered from the possession of accused at 0030 hours—Private person as witness at such odd hours of the night were not available, as such question of association of private persons did not arise—Police officials were as good witnesses as private persons of the society—Evidence of such witnesses could not be discarded merely for the reason that they were police officials—Appeal against conviction was dismissed in circumstances.

2017  MLD  1514   KARACHI-HIGH-COURT-SINDH

AMEEN VS State

1. 9(c)—Possession and trafficking of narcotics—Appreciation of evidence—Allegation against accused was that five-kilogram charas was recovered from the possession of accused—Complainant narrated the story of arrest of accused and recovery of charas, unlicensed weapon and hand grenade from his possession, which appeared to be confidence inspiring and trustworthy—Mashirnama of arrest and recovery was prepared by complainant/police official in presence of mashirs—Property was sealed at the spot—Complainant, thereafter, brought the accused to the police station and lodged FIR—Departure and arrival entries from police station were produced by the complainant, which showed that police party had actually left the police station for patrolling on the relevant date—Despite lengthy cross-examination, no inherent defect in the evidence of complainant had been brought on record—Sealed parcel of charas was sent to the Chemical Examiner—Evidence of mashir was also confidence inspiring and supported the complainant—Complainant had no reason to falsely challan the accused in the case—No material contradictions in the evidence of prosecution witnesses were found—Circumstances established that prosecution proved its case beyond any shadow of doubt—Appeal against conviction was dismissed accordingly.

2017  MLD  1164   KARACHI-HIGH-COURT-SINDH

LAL BUX VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Prohibition of possession, import and export, trafficking or financing trafficking of narcotic drugs—Bail, grant of—Further inquiry—Only 1300 grams of charas was allegedly recovered from the accused—Present case appeared to be a borderline case, which attracted the provisions of Ss. 9(b) & 9(c) of Control of Narcotic Substances Act, 1997, and the benefit of such discrepancy was, therefore, to be extended to the accused—Prosecution had not claimed that the accused was previously involved in the such nature of cases—Case of accused therefore, was that of further inquiry in terms of S.497(2), Cr.P.C.—Bail application was allowed accordingly.

2017  MLD  754   KARACHI-HIGH-COURT-SINDH

WAZIR ALI SAMOON VS State

66. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 21(2) & 26—Recovery of narcotics—Bail, refusal of—Recovery proceedings—Exclusive possession—Charas weighing 66.500 kilograms and 2 kilograms heroin were recovered from a locked box lying in office of accused—Accused was a police officer and plea raised by him was that recovery was violative of provisions of S. 21(2) of Control of Narcotic Substances Act, 1997—Validity—Recovery of huge quantity of narcotics was effected from office of accused—In absence of accused, his office was found locked that indicated his exclusive control over the same and availability of case property inside a locked box lying there led to a tentative inference about conscious possession of accused—Accused himself was a police official and his false implication in absence of strong animosity could not be normally expected and same was not borne out of any requirement—Alleged raid was conducted in night hours and provisions of S. 21(2) of Control of Narcotic Substances Act, 1997 in such peculiar circumstances could not be strictly pressed—Such grounds could not be taken into consideration, at bail stage for doing so would amount to a deeper appreciation of material—As a result of entry into office of accused, huge quantity of narcotics was recovered and except narcotics, nothing there was seized to even prima facie attract provisions of S. 26 of Control of Narcotic Substances Act, 1997—Bail was declined in circumstances.

2017  MLD  496   KARACHI-HIGH-COURT-SINDH

RASHEEDA alias RABIA VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic substance—Bail, refusal of—Accused, was alleged to have been arrested while she was in possession of 9950 grams of opium—Entire opium was sent to the Chemical Examiner for examination, who affirmed that recovered narcotic was opium—No enmity was alleged by the accused with the police to show that she had falsely been implicated in the case—Offence of the accused fell under the ambit of prohibitory clause of S.497 Cr.P.C—Bail was refused accordingly.

2017  MLD  496   KARACHI-HIGH-COURT-SINDH

RASHEEDA alias RABIA VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic substance—Bail, refusal of—Police officials as sole recovery witnesses—Competency of—Principles—Accused, was alleged to have been arrested while she was in possession of 9950 grams of opium—Prosecution witnesses were police officials—Associating private witnesses in such cases was not the requirement of law—Police witnesses were as good and competent witnesses as anybody else, unless they were proved to be inimical against the accused—Bail was refused accordingly.

2017  MLD  496   KARACHI-HIGH-COURT-SINDH

RASHEEDA alias RABIA VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic substance—Bail, refusal of—Principle—Deeper appreciation of evidence was not permissible at bail stage—Looking to the peculiar features and nature of the offence Trial Court could depart from the normal standards prescribed in such cases.

2017  MLD  472   KARACHI-HIGH-COURT-SINDH

MUHAMMAD PANAH alias JHANGI SHAR VS State

1. 9 (b)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic drug/charas—Appreciation of evidence—Police officials as recovery witnesses—Custody of recovered material—Report of chemical laboratory—Witnesses/police officials of ocular account were patrolling and saw the accused slipping away from them—On his arrest and inquiry 1100 grams of charas was recovered from accused—Prosecution produced two witnesses in support of their version—Both the witnesses of recovery were police officials, though they could not be termed as unreliable witnesses, but since the place of occurrence was a busy place the police officials did not make effort to join independent witnesses—Investigating Officer deposed that recovered charas was in shape of two pieces, however, as per evidence of complainant there was one piece from which 400 grams were separated as sample—Recovered material was sent to laboratory after eight days—Prosecution did not examine the person who carried sample of recovered material to laboratory—Appeal of accused was allowed in circumstances and he was acquitted of the charge.

2017  MLD  32   KARACHI-HIGH-COURT-SINDH

ANWAR ZAMAN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(b) & 51—Possessing and trafficking of narcotics—Bail, grant of—Further inquiry—Case had already been challaned against accused, who was no more required for investigation—Accused was behind the bars for the last more than five months without any substantial progress in trial—Case of the prosecution rested upon the evidence of the Police Officials, their evidence required thorough scrutiny at the time of trial; and there was no apprehension of tampering with the prosecution evidence at the hands of accused—Five hundred grams charas, having allegedly been recovered from possession of accused, accused was liable to be tried under S.9(b) of Control of Narcotic Substances Act, 1997, which did not fall within the prohibition contained in S.51 of the Act—Accused was previous non-convict and it was yet to be determined at the trial whether accused had committed the offence in a manner as alleged by prosecution or otherwise, till then case of accused required further probe—Accused having not been convicted in any case allegedly registered against him, he could not be refused bail mainly on the ground that certain other criminal cases had been registered against him—Accused having made out a case for further inquiry, he was admitted to bail, in circumstances.

2017  YLRN  447   KARACHI-HIGH-COURT-SINDH

BUDHO VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic drugs, etc.—Bail, refusal of—Accused was sitting at the driving seat at the time of his arrest on the spot and huge quantity of narcotics was recovered from diggi—Whole quantity of recovered narcotic was sent to laboratory, positive report of which was on file—Offence fell within prohibitory clause of S.497 Cr.P.C.—Nothing was available on file to show as to whether the motorcar was a taxi and accused was driver or otherwise—In absence of such fact at bail stage, it would be presumed that accused was companion of co-accused—Bail could not be granted in every narcotic case on the ground of ‘further inquiry’ and ‘conscious knowledge’ in disregard to settled principles of law for grant or refusal of bail—Bail was refused accordingly.

2017  YLRN  417   KARACHI-HIGH-COURT-SINDH

RUSTAM ALI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic drugs—Bail, refusal of—Large amount of Charas (narcotic) was recovered from the accused and his vehicle; and chemical report was positive—Case fell within the prohibitory clause of S.497, Cr.P.C. and prima facie there was sufficient material to connect the accused with the offence for which accused was charged—Bail was refused accordingly.

2017  YLRN  406   KARACHI-HIGH-COURT-SINDH

SHAH JEE KHAN VS State

1. 9(c)—Possession of narcotic substance—Appreciation of evidence—Police officials as sole recovery witnesses, competency of—Twenty five sleepers, each containing one KG charas were recovered from the possession of accused—Prosecution witnesses were police officials—No private witness had been associated at the time of alleged recovery—Such was not the requirement of law in the narcotic cases—Application of S. 103, Cr.P.C. had been excluded in narcotic cases in view of S. 25 of Control of Narcotic Substances Act, 1997—Appeal against conviction was dismissed accordingly, however life imprisonment awarded to accused was reduced to that already undergone by him i.e. 19 years 05 months and 27 days.

2017  YLRN  406   KARACHI-HIGH-COURT-SINDH

SHAH JEE KHAN VS State

1. 9(c)—Possession of narcotic substance—Appreciation of evidence—Prosecution case was that 25 sleepers, each containing one KG charas were recovered from the possession of accused—Prosecution proved its case by producing eye witnesses—Recovered substance was proved to be charas by the report of chemical examiner—Appeal against conviction was dismissed accordingly, however life imprisonment awarded to accused was reduced to that already undergone by him i.e. 19 years 05 months and 27 days.

2017  YLRN  406   KARACHI-HIGH-COURT-SINDH

SHAH JEE KHAN VS State

1. 9(c)—Possession of narcotic substance—Appreciation of evidence—Twenty five sleepers, each containing one KG charas were recovered from the possession of accused—Sentence, reduction in—Accused was first offender having no previous history of being involved in such like cases and was victim of circumstances—Appeal against conviction was dismissed accordingly, however life imprisonment awarded to accused was reduced to that already undergone by him i.e. 19 years 05 months and 27 days.

2017  YLRN  404   KARACHI-HIGH-COURT-SINDH

BASHEER AHMED VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Allegedly accused was arrested in possession of five KGs charas (narcotic)—Examination-in-Chief of two prosecution witnesses was recorded by Trial Court in absence of defence counsel—Fair opportunity was not provided to accused at the time of recording Examination-in-Chief of prosecution witnesses—Possibility could not be ruled out that counsel for accused might have raised objection on some legal issues—Mandate of law was that cases involving capital punishment shall not be tried in absence of counsel for accused—Trial Court did not perform its function diligently and recorded Examination-in-Chief of two witnesses in absence of defence counsel by ignoring Art. 10-A of the Constitution, S. 340(1), Cr.P.C., Circular 6 of Chapter VII of Federal Capital and Sindh Courts Criminal Circulars—Procedure adopted by Trial Court was illegal not curable under S. 537, Cr.P.C.—Impugned judgment was set aside—Case was remanded back to Trial Court for re-trial from stage of recording of evidence of prosecution witnesses in presence of counsel for accused—Appeal was allowed accordingly.

2017  YLRN  355   KARACHI-HIGH-COURT-SINDH

ADAL MUHAMMAD VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9—Prohibition of possession of narcotic drugs—Bail, grant of—Further inquiry—Accused was not named in FIR nor any specific role had been assigned to him—No documentary proof and other connecting evidence was collected to prima facie involve accused directly or indirectly in commission of offence—Mere allegation of payment of money to co-accused for release of subject container required serious consideration—Complainant had not made any serious effort to hire any public person nor associated any private person to act as an attesting witness to maintain the transparency of recovery—Challan had already been submitted and accused was not required for investiga-tion—Accused had succeeded to make out a case for grant of post arrest bail on the ground of further inquiry—Bail was granted accordingly.

2017  YLRN  332   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ZUBAIR VS State

Ss. 497 & 103—-Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8 & 9(c)—Possession, import or export, trafficking or finance the trafficking of narcotic drugs etc.—Bail, grant of— Search to be made in presence of witnesses— Requirement— Recovered narcotics/ samples not weighed at place of arrest—Effect—Three kilogram of Charas was alleged to have been recovered from the accused—Accused was allegedly arrested from the place, which was heart of the city and thickly populated commercial area—Complainant had not associated private persons as Mashirs to maintain the alleged recovery—Requirements of S. 103, Cr.P.C. were mandatory to provide safeguard to the innocent persons from foisting false recovery by the police to settle their account of ill-will—Prosecution must have explained the circumstances for non-compliance with the provisions of S. 103, Cr.P.C—FIR showed that neither nine pieces of recovered Charas, nor samples separated from the same, had been weighed at the place of recovery; hence, total weight of the recovered of the nine pieces and weight of the samples required serious consideration—Accused had been behind the bars for two months, but the prosecution had failed to examine even a single witness to substantiate the case against the accused—State counsel raised no objection to the grant of bail—Bail application was allowed accordingly.

2017  YLRN  321   KARACHI-HIGH-COURT-SINDH

MIR HASSAN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking narcotics—Bail, grant of—Further inquiry—No specific role had been assigned to accused as neither he was owner, nor co-driver or cleaner of impounded truck; his mere presence at the relevant time at the truck required serious consideration—Accused was behind the bars for the last 2 years and 5 months and the prosecution had failed to examine even a single witness during that period to substantiate the charge against accused—All prosecution witnesses were Police Officials and it was not a difficult task for the prosecution to procure attendance of the complainant and one mashir and examine them before the Trial Court—Unnecessary delay reflected that complainant was not interested to proceed with the case and merely interested to keep accused behind the bars—Challan had been submitted; charge had also been framed; accused was no more required further for investigation—Further detention of accused would not serve any useful purpose in circumstances—No apprehension of tampering with the prosecution evidence seemed as all prosecution witnesses were officials—Accused never remained involved in any criminal case, nor was convicted for any offence—While dealing with the question of bail, court should examine the entire circumstances of the case tentatively, irrespective of the sensitivity and heinousness of the crime—Bail was not to be withheld as a matter of punishment—Accused having been succeeded to make out a case for grant of bail on the ground of further inquiry as envisaged in S.497(2), Cr.P.C., he was admitted to post arrest bail, in circumstances.

2017  YLRN  293   KARACHI-HIGH-COURT-SINDH

PERVEZ alias PEHALWAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c) & 51—Possession of narcotic drugs, etc.—Bail, grant of—Further inquiry—Complainant (police official) alleged that he intercepted the accused and secured a plastic shopper from his hand which contained Charas weighing 1040 grams—Complainant neither made any serious effort to associate any public person to act as a mashir nor any plausible explanation had been furnished in that regard—Accused was arrested near a petrol pump which was a thickly populated area, staff members of petrol pump and members of public were available who could easily be associated as witnesses—Accused was behind the bars for more than five months but prosecution had failed to examine a single witness to substantiate the charge against accused—FIR showed that complainant had failed to mention total number of pieces of Charas recovered from possession of accused—Challan had been submitted and accused was not required for investigation—Accused had succeeded to make out a case for grant of bail on ground of further inquiry as envisaged under subsection (2) of S. 497, Cr.P.C.—Bail was granted accordingly.

2017  YLRN  285   KARACHI-HIGH-COURT-SINDH

SUBHAN ALI alias BADSHAH VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9 (c)—Possession, import or export, trafficking or financing the trafficking of narcotics—Bail, grant of—Delay in transmission of narcotics to Chemical Exmainer—Accused had been involved in the present case and charas weighing 1200 grams had been foisted upon him due to the old enmity with the area police, and the investigation of the case had been changed for the same reason on application of the accused—Accused had been found innocent after fresh investigation and the case was disposed of being false—Accused having succeeded to prove animosity or ulterior motive on the part of police for his involvement in the alleged offence, the case required further inquiry irrespective the sensitivity of the offence—Head Constable, one of the mashirs of arrest and recovery, could not identify the accused—Complainant had not made any effort to associate any private person to act as mashir of the alleged recovery to ensure the transparency of the same, in spite of the fact, the place from where the accused had been allegedly apprehended was a busy main road—Complainant (police official) was under a duty to give preference to private persons available on the spot to act as mashirs of the recovery rather than to associate police personnel—Recovered narcotic substance had been sent to Chemical Examiner after about five days, but there was no explanation as to safe custody of the substance during the intervening period nor was there any plausible explanation for the delay—Delay in transmitting the recovered substance to Chemical Examiner although would not be fatal to the prosecution case but said aspect should have been examined in the purview of the entire circumstances of the case when there were serious allegations of previous animosity and ill-will on the part of the police—Investigation of the case was already complete and the accused was not required for investigation—Accused had been behind the bars for more than four months, but the prosecution had not examined even a single witness to substantiate the charge, regardless of the fact that the prosecution witnesses were police officials—Bail application was allowed accordingly.

2017  YLRN  281   KARACHI-HIGH-COURT-SINDH

REHMATULLAH KHAN VS State

1. 497—-Control of Narcotic Substances Act (XXV of 1997), S. 9 (c)—Possession, import or export, trafficking or financing of trafficking of narcotic drug—Bail, grant of—Further inquiry—Allegations levelled against the complainant in the FIR although had been corroborated by the eye-witnesses and Mashirs, but the same had been controverted by the Investigation Officer, who had initially investigated the case and declared the accused to be innocent—Independent police officer also, having re-investigated the matter, had declared the accused persons innocent for their false implication and recommended departmental action against the delinquent officials— Summary report of the police officials was placed before the court for disposal of the case under cancel class, but the same was not accepted and believed by the court, which had created serious doubt regarding genuineness of the averments of the FIR—Prosecution had failed to examine even a single witness to substantiate the charge—Accused succeeded to make out a case of grant of bail on ground of further inquiry—Bail application was allowed accordingly.

2017  YLRN  277   KARACHI-HIGH-COURT-SINDH

AKBAR VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001—Possessing and trafficking narcotics—Appreciation of evidence—Sentence, reduction in—Evidence of prosecution witnesses, was consistent, confidence inspiring, and did not suffer from any material contradictions, irregularities or discrepancies to cause irreparable blow to the authenticity of the prosecution case—Evidence of the prosecution witnesses on the point of recovery of narcotic substances from the possession of accused at the given place, had not been shattered, in their lengthy cross-examination—Witnesses had reiterated the case against accused in its entirety with the arrest and recovery proceedings on a well-worded manner corresponding with the contents of FIR and memo—Minor variation in the evidence, pointed out by accused, had not caused a serious or reasonable doubt to give benefit thereon to accused—Some variation did occur naturally, in the evidence of the witnesses, which neither would take away or reduce the intrinsic value of the evidence, nor imply false implication of accused—Delay in sending the narcotic substances for chemical analysis, was also not fatal for the prosecution, as the Control of Narcotic Substances (Government Analysts) Rules, 2001, which regulate the sending of samples to Chemical Examiner, were directory and not mandatory in nature and import—Said Rules did not make it obligatory for the Investigating Officer to send sample of narcotic substances, within the stipulated period of seventy-two hours—Departure from applying such scheme in sending the sample within a certain period, would not undermine, or frustrate the larger purpose for which Control of Narcotic Substances Act, 1997 had been enacted—Nothing was on record to suggest that accused was a previous convict in narcotic substances case—Last jail roll, reflected that accused had served sentence of 2 years, 3 months and 4 days and had earned remission of 8 months and his un-expired portion of sentence was 7 years 5 months and 26 days—Conviction and sentence from 10 years and fine Rs.100,000 awarded to accused vide impugned judgment, was modified to 4 years 6 months, and fine to Rs.20,000.

2017  YLRN  277   KARACHI-HIGH-COURT-SINDH

AKBAR VS State

1. 9(c)—Possessing and trafficking of narcotics—Complainant as Investigating Officer—Effect—Accused contended, that since complainant was the Investigating Officer of the case; serious prejudice had been caused to accused, and conviction awarded to him was illegal—Validity—Law, did not stipulate any prohibition on the Police Officer to become Investigating Officer, and complainant of the case, if he was a witness to certain facts, unless his interest was shown to be obvious in falsely implicating accused—Accused, was unable to point out any prejudice caused to him, just because the complainant investigated the matter—No enmity with the said witness had been suggested by the defence—Personal interest of the complainant to rope accused falsely, was not the case of defence—Dual capacity performed by the Police Officer as complainant and Investigating Officer, in the present case, did not appear to have influenced and manipulated the manner and result, of the investigation, because, no material, had been brought on record by the defence to suggest false implication of accused at the hands of the complainant.

2017  YLRN  277   KARACHI-HIGH-COURT-SINDH

AKBAR VS State

1. 9(c)—Possessing and trafficking of narcotics—Preparation of joint memo. of arrest and recovery of different incriminating articles— Principles—Writing of joint or a separate memo, had never been considered as an absolute requirement of law to be followed at every cost—Law would only require identification of each item distinctively and independently in the memo. of recovery to fend off any chance of vagueness, or confusion in the trial—Such was the rule of convenience favouring the prosecution to present its case unambiguously before the court, or at times to be used for the benefit of accused, if the memo. lacked the necessary details to recognize each incriminating article properly against accused from whom it was alleged to have been recovered—Even a separate memo. wanting in necessary particulars in respect of a recovered article, could not be considered to have furnished sufficient incriminating evidence, warranting conviction of accused—Issue, in the context, would not be of writing a joint or separate memo. of arrest and recovery at the spot but in case of a joint recovery from either one or more than one accused, it was the requirement of law pertaining to clear, explicit and precise particulars relating to each incriminating article so that the cause of justice could be served adequately to the satisfaction of all concerned—Joint memo regarding more than one incriminating articles punishable under different and separate penal laws, either recovered from one accused or more than one arrested simultaneously, would be admissible in evidence and could be safely relied upon, and it would not be fatal to the prosecution case, if it precisely mentioned the recovery of each illegal article against the specific accused from where it was effected explicitly.

2017  YLRN  277   KARACHI-HIGH-COURT-SINDH

AKBAR VS State

S.9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Benefit of doubt—Contradictions in the evidence—Contradictions in the evidence, which could be considered material for acquitting the accused, must create reasonable doubt in the prudent mind, and be strong enough to undermine and weaken the main features of the prosecution case to give benefit thereof to accused—Plethora of such circumstances, was not a requirement of law—If there was a single situation or circumstance creating a reasonable doubt to a sensible person, the benefit of which not as a matter of grace, but as a right, could be extended to accused in the shape of his acquittal—Despite deep examination of the record, no worthwhile discrepancy, was found in the evidence of prosecution witnesses, and accused was not found entitled for his acquittal on that account.

2017  YLRN  165   KARACHI-HIGH-COURT-SINDH

SHAHZAD VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 14 & 15—Possession and trafficking of narcotics, aiding, abetment or association in such offences—Bail, refusal of—Prosecution case was that two accused were apprehended, and each of them was found in possession of 2-kilogram and 1750 grams of charas—Record showed that narcotic was sealed on the spot and to the next day of its recovery, entire sealed charas was sent for chemical examination, report thereof was positive—No private person was ready to become witness in the case despite approached by the complainant (Police official)—FIR had been lodged promptly—Co-accused was released on bail as only 250 grams of charas was recovered from his possession, and his case fell under S.9(b) of the Act—Rule of consistency could not be applied in the case of two accused persons as huge quantity of charas was recovered from their possession and their case fell under S.9(c) of the Act—Accused petitioners had not alleged any enmity with the official of Anti Narcotic Force for their false implication—Sufficient material prima facie, was available on record to connect the accused with the commission of offence—Bail was dismissed accordingly.

2017  YLRN  99   KARACHI-HIGH-COURT-SINDH

SIRAJ MUHAMMAD VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic substance—Bail, refusal of—Police officials as sole recovery witnesses, competency of—Principle—Accused was arrested while he was in possession of 1020 grams charas—Prosecution witnesses were police officials—No private witness had been associated at the time of alleged recovery—Such was not the requirement of law in the like cases—Police witnesses were as good and competent witnesses as anybody else, unless they were proved to be inimical against the accused—Bail was refused.

2017  YLRN  99   KARACHI-HIGH-COURT-SINDH

SIRAJ MUHAMMAD VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic substance—Bail, refusal of—Accused was nominated in the FIR with specific role—Allegedly 1020 grams of charas was recovered from the exclusive possession of accused—Accused was arrested at the spot at day time—Accused was previously convicted in the case of similar nature—Bail was therefore, refused in circumstances.

2017  YLRN  99   KARACHI-HIGH-COURT-SINDH

SIRAJ MUHAMMAD VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 21 & 22—Possession of narcotic substance—Bail, refusal of—Allegedly 1020 grams of charas was recovered from the possession of accused—Case was registered by the Assistant Sub-Inspector, which was allegedly not competent to do so which was violation of Ss. 21 & 22 of Control of Narcotic Substances Act, 1997—Only an officer of the rank of Sub-Inspector or equivalent or above could exercise the powers of arrest and seizure of narcotics under Ss.21 & 22 of the Act but such was not an absolute rule as in some cases, prompt action was required as delay could cause the escape of accused—Accused was apprehended by Assistant Sub-Inspector and on his report, case was registered, therefore Ss.21 & 22 had not been violated as said sections were directory in nature—Non-compliance of said sections would not be a ground for holding the trial/conviction bad in the eyes of law.

2017  YLRN  94   KARACHI-HIGH-COURT-SINDH

USMAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c)—Possession of narcotics—Bail, grant of—Further inquiry—Alleged recovery of 1300 grams of charas (narcotic) was marginally exceeding 1000 grams which did not fall within prohibitory clause of S. 497, Cr.P.C.—Whether case of accused fell within the provisions of Ss.6, 9(b) or 9(c) of Control of Narcotic Substances Act, 1997 would be decided at trial—Challan had already been submitted and accused was not required for further investigation—No apprehension of tampering with the prosecution evidence existed—Accused could not be denied concession of bail only for the reason that he was facing trial in some other cases—Accused was not a previous convict—Accused had made out a case of further inquiry—Bail was allowed accordingly.

2017  PCrLJN  259   KARACHI-HIGH-COURT-SINDH

HABIB KHAN VS State

217. 9(c)—Possession of narcotics—Appreciation of evidence—Allegation against accused persons was that 8-plastic/fiber drums of raw heroin were recovered from their vehicle, which was weighed and found to be 217.499 kilograms—Prosecution witnesses had narrated convincing chain of events, which was largely corroborated either by witnesses or documents— Positive chemical report remained unchallenged—None of the prosecution witnesses was shattered during cross-examination—Initiator of capturing the accused persons was an entirely disinterested person who had no enmity with the accused persons—Accused person, did not suggest that police had any ill will or enmity towards them; they had alleged that they had been kept in illegal confinement by the police and contraband substance had been foisted upon them after their refusal to pay bribe to the police—Record showed that none of the prosecution witnesses including four police officers were cross-examined on the point as to whether the accused persons were asked to arrange bribe, failing which, a case would be foisted against them—Huge quantity of heroin being over 217 kilograms having been recovered from vehicle exclusively in possession of accused persons—Said recovery of huge quantity of heroin could not be believed to have been foisted by police on the accused persons—Circumstances, therefore, established that narcotic substance had not been foisted on the accused persons by the police—Appeal against conviction was dismissed in circumstances.

2017  PCrLJN  259   KARACHI-HIGH-COURT-SINDH

HABIB KHAN VS State

217. 9(c)—Possession of narcotics—Appreciation of evidence—Contradictions and discrepancies—Allegation against accused persons was that 8-plastic/fiber drums of raw heroin were recovered from their vehicle, which was weighed and found to be 217.499 kilograms—Record showed that contradictions were found in the prosecution case—Said contradictions were very few and only of minor nature, which were not fatal to the final determination of the prosecution case—No major or material contradictions or discrepancies were found in the case—Appeal against conviction was dismissed in circumstances.

2017  PCrLJN  259   KARACHI-HIGH-COURT-SINDH

HABIB KHAN VS State

Ss. 9(c) & 21—Possession of narcotics—Appreciation of evidence—Arrest of accused in violation of S. 21, Control of Narcotic Substances Act, 1997—Allegation against accused persons was that 8-plastic/fiber drums of raw heroin were recovered from their vehicle, which was weighed and found to be 217.499 kilograms—Accused contended that he was arrested by an officer below the rank of Sub-Inspector in violation of S.21 of Control of Narcotic Substances Act 1997, therefore, they could not be convicted under S. 9(c) of the Control of Narcotic Substances Act, 1997—Record showed that Assistant Sub-Inspector arrested the accused and taken the alleged raw heroin into his custody, which was violation of S. 21 of the Act—Said defect was curable and was not fatal to the prosecution case—No other defect or irregularity was found, which could be fatal to the prosecution case—Appeal against conviction was dismissed in circumstances.

2017  PCrLJN  259   KARACHI-HIGH-COURT-SINDH

HABIB KHAN VS State

Ss. 9(c) & 29—Qanun-e-Shahadat (10 of 1984), Art. 122—Possession of narcotics—Appreciation of evidence—Burden of proof—Allegation against the accused persons was that they were possessing 8-plastic/fiber drums of raw heroin—Apart from the chemical report, prosecution produced reliable evidence of five witnesses and 28 documents, none of which were challenged by the accused persons including chemical report, which went unchallenged—Prosecution, in circumstances, made out strong case against the accused persons—Admittedly, accused persons were in the vehicle at the time when drums were seized—Recovery of substance from the drums had not been denied by the accused persons—Accused persons had not produced any evidence to rebut the presumption against them under S. 29, Control of Narcotic Substances Act, 1997—Circumstances established that prosecution proved its case against the accused persons beyond a reasonable doubt—Appeal against conviction was dismissed in circumstances.

2017  PCrLJN  240   KARACHI-HIGH-COURT-SINDH

DUR MOHAMMAD alias DUROO VS State

Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss. 9 (c), 21 & 25—Possession of narcotics—Bail, refusal of—Non-compliance of mandatory provisions of S. 21 of Control of Narcotic Substances Act, 1997 could not be a ground for holding trial or conviction bad, as the directions in the said provision were not mandatory but were directory—Recovery of narcotics had not been made from any house or vessel but from the road side—Section 103, Cr. P. C could not be invoked in circumstances—Newspapers clippings could not be used either in favour of prosecution or defence unless author of the same was examined in a court as a witness—Offence under S. 9(c) of Control of Narcotic Substances Act, 1997 did come within the meaning of prohibitory clause of S. 497, Cr.P.C.—Said offence was considered to be offence against the society at large—No case for grant of bail had been made out—Bail was refused in circumstances.

2017  PCrLJN  158   KARACHI-HIGH-COURT-SINDH

GHULAM DASTAGIR VS State

1. 9(c)—Possession of narcotic drugs—Appreciation of evidence—Complainant (police) produced Chemical Examiner’s Report which showed that representative samples contained charas (narcotic)—Prosecution witnesses had fully supported the prosecution case and given a quick accurate account of the incident—No material contradiction in their statement was found and their evidence was trustworthy and confidence inspiring—Contention of counsel about conscious knowledge of possession by accused was without force as recovery was effected from single plastic sack lying adjacent to driver seat and both the accused were present in the truck—Both the Excise Police officials were competent witnesses like any other independent witness and their evidence could not be brushed aside or thrown simply for the reason that they were excise officials—-No bar existed on conducting investigation by Excise Police officer who was also a complainant in the case—Conclusion drawn and reasons recorded by Trial Court had shown fair evaluation of evidence—Appeal being meritless was dismissed accordingly.

2017  PCrLJN  155   KARACHI-HIGH-COURT-SINDH

ALI DINO alias PEHLWAN VS State

1. 9(c)—Possession of narcotic drugs—Appreciation of evidence—Evidence of both the prosecution witnesses was consistent on all the material particulars such as date, time, place and manner of recovery—Prosecution also produced departure and arrival entries before the Trial Court—Non-association of private persons during investigation would not invalidate the proceedings because by virtue of S. 25 of Control of Narcotic Substances Act, 1997 non-citing of public witnesses was not fatal to the prosecution case as S. 103, Cr.P.C. had been excluded from its application in such cases—No malice or mala fide or enmity had been attributed to the prosecution witnesses to foist such charge upon the accused—Police Officer was not prohibited by law to be complainant if he was witness of offence/investigating officer if it did not cause prejudice to accused—Non-examination of Writing Head Constable (WHC) of Police Station was not fatal to prosecution case as there was no allegation that the case property which was kept under the custody of WHC was tampered with or manipulated—Accused had not taken any specific plea in defence—All the prosecution witnesses had successfully passed the test of lengthy cross-examination but no material discrepancies had been credited by the defence counsel in favour of accused—Prosecution had proved its case against the accused beyond any shadow of doubt—Appeal was dismissed accordingly.

2017  PCrLJN  115   KARACHI-HIGH-COURT-SINDH

RAJAB ALI KERIO VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic drugs—Bail, grant of—Further inquiry—Complainant (police) intercepted accused on main road while riding on motorcycle and recovered charas (narcotic) concealed in a blue shopper—Accused was apprehended from a thickly populated area but complainant neither associated any private mashir nor made any serious efforts to involve any public person to act as mashir to maintain transparency of alleged recovery nor furnished any explanation—Recovered substance was weighed at the spot and total weight was presumed to be 2 kg—No mashirnama of recovery of narcotic substance was prepared at the spot—Court could enlarge the accused on bail in case of recovery of charas when prosecution had failed to conclude the trial within three months—Accused was behind the bars for more than eight months but prosecution had failed to examine even a single witness to substantiate charge though it was not a difficult task to procure attendance of prosecution witnesses who were police officials—Any iota of doubt if arisen even at bail stage would be counted in favour of accused—Accused had succeeded to make out a case for grant of bail on the ground of further inquiry as contemplated under S. 497(2), Cr.P.C.—Bail was granted accordingly.

2017  PCrLJN  113   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ZESHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic drugs—Bail, grant of—Complainant (police) alleged that accused was found in possession of plastic shopping bag containing contraband Charas—Police had failed to associate any independent private witness—Question as to the net weight of recovered narcotics and whether the case fell within the ambit of S. 9(b) or 9(c) of Control of Narcotic Substances Act, 1997 would be determined after recording of evidence—Case of accused was not covered within the prohibitory clause of subsection (1) of S. 497, Cr.P.C. as the punishment provided for the recovered quantity was four years, six months and fine of rupees twenty thousands—Accused was not a previous convict or hardened criminal or habitual offender and was first offender and was in jail since his arrest—No apprehension of tampering with the prosecution evidence existed as all the mushirs were police officials—Bail was granted accordingly.

2017  PCrLJN  99   KARACHI-HIGH-COURT-SINDH

SABAR SHAH VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(b)—Possession and trafficking of narcotics—Bail, grant of—Further inquiry—Prosecution case was that 560 grams hashish was recovered from the possession of accused—Record showed that FIR was lodged with the delay of nine hours—No plausible explanation was furnished for the delay—Offence under S. 9(b), Control of Narcotic Substances Act, 1997 did not fall within the ambit of restraining clause of S. 497, Cr.P.C.—Peculiar circumstances of the case established that there was no probability of accused being convicted with maximum sentence provided in the Schedule—Challan had been submitted and accused was no more required for further investigation—Prosecution witnesses were officials, hence there was no apprehension of tampering with the prosecution evidence—Detention of accused would not serve any useful purpose—Accused was allowed bail in circumstances.

2017  PCrLJN  84   KARACHI-HIGH-COURT-SINDH

ABDUL KHAIR VS State

Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c) & 51—Possession of narcotic substance—Bail, refusal of—Complainant (police) alleged recovery of charas (narcotic) from the tool box of a bus, driver and conductor were booked in the case—Offence fell within prohibitory clause of S. 497, Cr.P.C.—Section 51, Control of Narcotic Substances Act, 1997 prohibited grant of bail to an accused charged of an offence under the Act—No enmity, ill-will or grudge had been alleged against prosecution—Contention that recovery was not witnessed by persons from public was hit by S. 25, Control of Narcotic Substances Act, 1997 under which application of S. 103, Cr.P.C. was excluded—Accused were prima facie connected with the commission of offence consequently not entitled to bail.

2017  PCrLJN  56   KARACHI-HIGH-COURT-SINDH

SHOUKAT KHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic drugs—Bail, grant of—Further inquiry—Accused was arrested from populated area but no private person was associated as attesting witness—Neither samples were separated from alleged recovered narcotic substance on the spot nor mode of weighing of recovered charas (narcotic) had been mentioned in the FIR—Weight of substance was not disclosed—Prosecution had failed to produce a single witness (police officials) within a period of two years—Accused could not be deprived from the enlargement on the basis of other cases, while he deserved grant of bail on merits—Accused was not previous convict and was no more required for further investigation—Accused had succeeded to make out a case of further inquiry—Bail was granted accordingly.

2017  PCrLJN  41   KARACHI-HIGH-COURT-SINDH

ALI RAZA VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking narcotics—Bail, grant of—Further inquiry—Complainant allegedly apprehended the accused and recovered 1600 grams of charas from his possession in a populated area—Despite prior information complainant failed to make any serious efforts to associate any private person to act as mashir, nor associated any person from the locality to maintain the transparency of alleged recovery—No cogent explanation was given as to why complainant was unable to secure two Mashirs from public from the area—Samples of recovered charas were dispatched by the complainant timely, but after lapse of more than five months and trial was held up for want of Chemical Examiner’s report—Accused, in circumstances, had been deprived of the right of fair trial as guaranteed by the Constitution—Accused was behind the bars without any further proceedings and was suffering due to the act of negligence and transgression of prosecution—Investigation had been completed, and after submission of challan, charge had also been framed; accused was no more required for investigation; his further detention would not serve any useful purpose, as basic rule was bail and not jail—No apprehension existed for tampering with the prosecution evidence as all prosecution witnesses were Police Officials—Accused having succeeded to make out a case for grant of bail on ground of further inquiry, he was admitted to bail, in circumstances.

2017  YLR  712   ISLAMABAD

IKRAM ULLAH VS State

S.9(c)—Seizure of narcotic—Appreciation of evidence—Benefit of doubt—Prosecution case was that 4,400 grams Charas Garda in four packets was recovered from the lap of accused, while he was driving a vehicle—Record showed that memo of recovery and complaint were not in one handwriting—Carbon copy of FIR had been exhibited without application for producing secondary evidence—No explanation about non-production of original FIR was on record—Despite spy information, Investigating Officer went to the place of recovery without the weighing scale—Prosecution witnesses had contradicted each other on the point of scale and manner in which proceedings were conducted—Samples were not prepared with weighing process—Case property (car) was taken into possession but same was not produced before the Trial Court—Record established that investigation of the case was not entrusted to the complainant by the Station House Officer of the police—Complainant had himself assumed the role of Investigating Officer—Incurable illegalities, glaring discrepancies and major contradictions were found in the case—Circumstances created doubt about the veracity of the prosecution case, benefit of which would resolve in favour of accused—Accused was acquitted, in circumstances, by setting aside conviction and sentence recorded by Trial Court.

2017  YLR  1311   Gilgit-Baltistan Chief Court

MUHAMMAD SALEEM VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Possessing and trafficking narcotics—Bail, grant of—Offence against accused entailed only a punishment of seven years, which did not fall within the prohibitory clause of S.497, Cr.P.C.—Accused, was entitled for the grant of bail.

2017  YLR  1282   Gilgit-Baltistan Chief Court

MUHAMMAD SHARIEF VS STATE (ANF GILGIT)

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(b)(c) & 25—Possessing and trafficking narcotics—Bail, grant of—Further inquiry—Accused was caught red-handed by Anti-Narcotic Force Officials—Contraband “charas” weighing 1030 grams, was recovered from personal search—Contention that provisions of S.103, Cr.P.C., were violated, did not hold the field—Provisions of S.103, Cr.P.C., were not attracted in the case of personal search and had specifically been excluded by S.25 of Control of Narcotic Substances Act, 1997—Quantity of “charas” recovered from accused marginally exceeded 1000 grams and it was a border line case of S.9(b) or S.9(c) of Control of Narcotic Substances Act, 1997, which attracted provisions of S.497(2), Cr.P.C.—Bail was allowed to accused, in circumstances.

2017  YLR  1134   Gilgit-Baltistan Chief Court

GHULAM-UD-DIN VS The STATE

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking narcotics—Bail, grant of—Further inquiry—Police official who lodged FIR in the case, was also investigator of the case—Propriety demanded that in a case where an FIR was lodged by a Police Official, he should avoid to conduct the investigation; as his investigation, howsoever fair, could be challenged by accused on the ground that a fair and impartial investigation had not been carried out; which had prejudiced the case—Accused who was below the age of 18 years, was in judicial lock-up since last 8 months without any substantial progress in the trial, was the first offender and there was no chance of his abscontion, or tampering with the case—Case of accused fell within the ambit of further inquiry—Bail, was allowed to accused, in circumstances.

2017  PCrLJ  1317   Gilgit-Baltistan Chief Court

MUJAHIDDIN VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic drugs—Bail, grant of—Further inquiry—Complainant (police officials) raided at the house of accused and recovered Charas (narcotic) and arms/ammunition—Entry into the house without permission of its occupants and without obtaining a search warrant under S. 98, Cr.P.C. was not permitted—Station House Officer of Police Station had violated the sanctity of “Chaddar and Chardiwari” which was not permitted—Chief Court observed that Police officer who entered house of any stranger, could be termed as trespasser and necessary criminal proceedings could be initiated against him by the complainant—Narcotics recovered from accused was sealed at the spot but FIR was completely silent regarding separation of sample of allegedly recovered narcotic for further dispatch to Chemical Examiner for expert opinion—Alleged drug was not sent to Chemical Examiner, thus, it could not be presumed legally that the stuff so recovered was intoxicant—Registration of FIR by local Police under Control of Narcotic Substances Act, 1997 needed a thorough and detailed judgment in the light of law laid down in PLD 1997 SC 408—Whenever and wherever two views were possible, the view, which favoured the accused would be adopted—Bail was granted accordingly.

2017  MLD  303   Gilgit-Baltistan Chief Court

MALANG VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 25—Possessing and trafficking narcotics—Bail, grant of—Despite prior information, no independent private persons were associated with recovery proceedings—Section 25 of Control of Narcotic Substances Act, 1997, no doubt, excluded the association of private witnesses, but, it did not confer unbridled right to public to make it an excuse for all cases, when there was chance that either accused would disappear from the scene; or the narcotics removed somewhere else—Conduct of Police, could not be given shelter; and non-association of independent witnesses, would favour accused, even for limited purpose of bail—Shop of accused (place of recovery) was situated in a thickly populated area; and local Police had no authority to search the shop without resorting to codal formalities provided under law to carry out the search, which had also not been followed, rather violated—Maximum punishment provided for the offence was only up to 7 years, which did not fall within the prohibitory clause of S.497, Cr.P.C.—Concession of bail was extended to accused, if there were no compelling circumstances to refuse the same—Accused, was neither habitual, nor a previous convict and there existed no special circumstance to refuse the concession of bail to him—Accused was admitted to bail, in circumstances.

2017  PCrLJN  210   Gilgit-Baltistan Chief Court

MUSHTAQ ALAM VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9 (c)—Possession of narcotic drugs—Bail, refusal of—Complainant (police) alleged that narcotic of Charas Gardah was recovered from possession of accused—Police had already submitted challan, trial proceedings had commenced and case had been fixed for evidence of prosecution—Sentence of life imprisonment was the punishment for the offence of occurrence reported—Grounds of present bail application were similar to that of the bail application of accused rejected through impugned order—Tentative assessment of prosecution evidence available on police file very clearly showed that police had arrested the accused red-handed and there was prima facie sufficient evidence connecting the accused with the occurrence—Police had prima facie recovered the narcotics from the accused in presence of eye-witnesses—Report of the chemical examiner was positive—Prima facie, evidence connected the accused with the occurrence—Bail was refused accordingly.

2017  PCrLJN  143   Gilgit-Baltistan Chief Court

NASRULLAH VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(b)—Possession of narcotic substance—Bail, refusal of—Record showed that accused petitioner was involved in many cases of alike nature in the past and was a habitual offender—Accused petitioner repeated the similar offence, whenever he was allowed bail, thus misused the concession of bail—Mere fact that an offence did not fall within the prohibitory clause of S. 497(1), Cr.P.C. did not mean that it had become a bailable offence—Circumstances established that accused petitioner did not deserve the concession of bail—Bail was declined in circumstances.

2016  GBLR  406   SUPREME-APPELLATE-COURT

State VS HAIDER

Ss. 9(c), 21 & 22—S.R.O. No.656(I)/2004, dated 2-8-2004—Criminal Procedure Code (V of 1898), S. 156(2)—Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Arts. 60 & 71—Possessing and trafficking of narcotics—Appraisal of evidence—Re-opening of investigation by Anti-Narcotic Force—Scope—Chief Court had passed the order whereby the Trial Court was directed to return the challan, if the same was presented by the local Police and Anti-Narcotic Force was directed to re-open the investigation—Advocate-General contended that Ss. 21 & 22 of the Control of Narcotic Substances Act, 1997, had empowered the Police to take cognizance of the said offence and to investigate the same; that investigation conducted by the Police could not be questioned; that Chief court fell in error by directing the Anti-Narcotic Force for re-opening the investigation of the case and that the investigation of the said case had already been conducted by the local Police and nothing remained for re-investigation in that case—Validity—Police Officer, in pursuance of S.R.O. No.656(I)/2004, dated 20-08-2004, had powers to take cognizance and investigate the offence falling under the Control of Narcotic Substances Act, 1997—Order passed by the Chief Court was set aside by the Supreme Appellate Court and case was remitted to the Special Judge for trial of the accused—Trial Court was directed to hear and decide the case expeditiously within a period of six months.

2016  GBLR  166   SUPREME-APPELLATE-COURT

ZUBAIR AHMED VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Sentence, reduction in—Accused did not press his appeal against his conviction and prayed for reduction in his sentences with contention that he was a young man having large family responsibilities and that due to his detention in jail, he and his family had morally and mentally suffered a lot and financially crippled; that he had learnt a lesson and had shown remorse and penitence and he wanted to unburden his conscious; that during serving his sentence in jail, he had improved himself and realized his mistake by committing such shameful offence which had given bad name to his religious family; that he undertook not to repeat such an offence in future; that he wanted to reform and rehabilitate himself as a responsible citizen; and that ends of justice had already been served—Validity—Accused who was in custody since 30-1-2013, was the first offender, who had shown his remorse and penitence during serving the sentence in jail—Accused had already served upon more than 3 years in jail and as per record his conduct was found satisfactory—Accused wanted to reform and rehabilitate himself as a responsible citizen in the society in future—Supreme Appellate Court observed that accused deserved leniency as prayed for, conviction of accused was maintained, but his sentence was reduced from 8 years’ R.I. to 5 years’ R.I. and fine of Rs.100,000 was also reduced to Rs.50,000.

2016  SCMR  1447   SUPREME-COURT

DOLAT KHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)— Possession of narcotic—Bail, refusal of—Accused was apprehended along with his co-accused while carrying 2400 grams of charas and 1200 grams of opium—Accused was apprehended at the spot by the raiding party and as per the FIR he himself handed over two packets containing charas and opium to the complainant/police official—Accused had not been able to refer to anything from the record which could suggest that the complainant or any other member of the raiding party had any enmity with the accused—Case of the accused fell within the prohibitory clause of S. 497, Cr.P.C.—Huge quantity of narcotics had been recovered from possession of accused, therefore he was not entitled for the concession of bail—Bail was refused accordingly.

2016  SCMR  1424   SUPREME-COURT

ATEEB UR REHMAN @ ATTI MOCHI VS The STATE

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 9(c)—Possession of narcotic—Bail, grant of—Further inquiry—Border line case between Ss. 9(b) & 9(c) of Control of Narcotic Substances Act, 1997—Accused was allegedly found in possession of 1014 grams of heroin, contained in a shopper/polythene bag—Prosecution, after going through the recovery memo available on the file of police record, could not show whether the recovered heroin was weighed along with the polythene bag or otherwise—If the recovered heroin was weighed along with the polythene bag, prima facie, the weight of the heroin without the polythene bag, might have come to 1000 grams or less, in which eventuality, the case of the accused would fall within the ambit of S. 9(b) of the Control of Narcotic Substances Act, 1997—In such backdrop, the case of the accused was one of further inquiry falling within the purview of S.497(2), Cr.P.C.—Accused was allowed bail accordingly.

2016  SCMR  909   SUPREME-COURT

ABDUL SATTAR VS State

1. 9(c)— Possession of narcotic— Reappraisal of evidence—Sentence, reduction in—Consolidated sample—Charas recovered from accused weighed 42 kilograms which was contained in 21 separate packets and the weight of each packet was two kilograms—Only one consolidated sample weighing 84 grams had been separated for chemical analysis—Weight of only one packet i.e. two kilograms of charas could have been considered against the accused in such circumstances for the purpose of his conviction and sentence—Conviction of accused for an offence under S. 9(c) Control of Narcotic Substances Act, 1997 was maintained but his sentence was reduced to imprisonment for four years and six months along with a fine of Rs.20,000.

2016  SCMR  806   SUPREME-COURT

PARA DIN  VS State

1. 9(c)—Possession of narcotic—Re-appraisal of evidence—Sentence, reduction in—Consolidated sample—Accused was found in possession of 162 kilograms of charas pukhta contained in 162 packets weighing one kilogram each and charas kham weighing 34 kilograms contained in 34 packets weighing one kilogram each—One consolidated sample of 100 grams was separated from all packets containing charas pukhta and one consolidated sample weighing 50 grams had been separated from all the packets containing charas kham—Only the weight of two packets i.e. two kilograms of charas could be considered against the accused in such circumstances for the purpose of his conviction and sentence—Conviction of accused for an offence under S. 9(c), Control of Narcotic Substances Act, 1997, was maintained but his sentence was reduced to imprisonment for four years and six months along with a fine of Rs. 20,000.

2016  SCMR  707   SUPREME-COURT

ABDUL HAMEED VS State

Ss. 9(b) & 9(c)—Possession of narcotic—Reappraisal of evidence—Sentence, reduction in—Consolidated sample—Charas recovered from accused was packed in 44 packets weighing one kilogram each—Instead of taking 44 separate samples of the recovered substance only one consolidated sample weighing 200 grams was separated from the recovered substance—Only one kilogram of charas could have been considered against the accused in such circumstances for the purpose of his conviction and sentence—Conviction of accused for an offence under S. 9(c), Control of Narcotic Substances Act, 1997 was converted into conviction for an offence under S. 9(b) of the said Act, and his sentence was reduced to imprisonment for one year and nine months along with a fine of Rs. 13,000.

2016  SCMR  621   SUPREME-COURT

TAIMOOR KHAN VS State

Rr. 3, 4 & 6—Control of Narcotic Substances Act (XXV of 1997), S. 9—Academic qualifications of a Chemical Examiner—Procedure for sending sample to Narcotics Testing Laboratory—Format and contents of Chemical Examiner’s report—Rules 3, 4 & 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001, were mandatory in nature, therefore, chemical analysis conducted in derogation to said Rules could not be relied upon for convicting an accused.

2016  SCMR  621   SUPREME-COURT

TAIMOOR KHAN VS State

Ss. 9(c), 2(t), 2(w) & 2(x)—Control of Narcotic Substances (Government Analysts) Rules, 2001 , R. 6—Possession of narcotic substance—Reappraisal of evidence—‘Crushed poppy heads’ recovered from accused persons—Chemical Examiner’s report not clearly and legibly mentioning percentages of Meconnic Acid, Sulphuric Acid, Porphyroxin, Alkaloids, Morphine and Codeine in the sample—Gross negligence on part of Chemical Examiner [Minority view]—Accused persons applying for re-examination of sample by another Laboratory but subsequently abandoning such plea—Presumption that accused persons apprehended result of re-examination of sample adverse to them—Appeal against conviction was dismissed in circumstances.

2016  PLD  471   SUPREME-COURT

The STATE through Director ANF Peshawar VS RASHM ALI KHAN

S 9—Recovery of chars garda (narcotic) in powder form—Quantum of sentence—Approach (formula) adopted by courts for reducing sentence of a convict on the basis that quantity of recovered chars garda in powder form could be reduced in weight by 30-50% when processed, therefore, the quantity to be considered in determining the quantum of sentence would be the reduced (processed) quantity—Legality—Extending such benefit to an accused by reducing the quantity of recovered chars garda had to be rejected as being conjectural and unlawful—Nowhere in the entire scheme of the Control of Narcotic Substances Act, 1997, the Courts had been empowered to either send the recovered quantity of chars garda for processing or arbitrarily reduce its quantity without any supporting material in such behalf or any intelligible criteria or legal justification for such purpose.

2016  PLD  471   SUPREME-COURT

The STATE through Director ANF Peshawar VS RASHM ALI KHAN

1. 9—Recovery of narcotic—Case involving several convicts—Quantum of sentence—Question as to whether in a case involving several convicts, the total quantity of narcotic substance recovered from their possession was to be equally distributed between them to determine the quantum of their individual sentences—Provisions of the Control of Narcotic Substances Act, 1997 did not permit the practice of equal distribution of total quantity of narcotic substance recovered from the possession of more than one convict in order to determine their individual sentences within the parameters of S.9 of the said Act—If in a case narcotic substance was recovered from the possession of more than one convict then, following the principle of their joint and collective liability, each one of them would be liable for punishment on the basis of the whole quantity of narcotic substance so recovered.

2016  YLR  2293   PESHAWAR-HIGH-COURT

ZAKIR ULLAH VS State

Ss. 9(c) & 25— Possession of narcotics— Appreciation of evidence—Conscious knowledge of recovered stuff—Effect— Testimony of prosecution witnesses could not be shaken—Nothing was on record that accused was involved falsely or matter was prompted by his enemies to foist such a huge quantity of narcotics on him—Stuff recovered from the vehicle of accused was in fact charas—Accused was present at the driving seat of the vehicle which was in his possession and from its secret cavities huge quantity of narcotics was recovered—Recovered stuff was in the ownership of accused and he was having its conscious knowledge—Accused had failed to prove that he did not have conscious knowledge of recovered stuff—Police officials were as good witnesses as private persons unless any animosity was brought on record—Nothing was on record that accused had any ill will or grudge with the prosecution witnesses—Charge against accused had been proved beyond any shadow of doubt—Accused had been rightly convicted in circumstances— No illegality, irregularity, mis-reading or non-reading of evidence had been pointed out in the impugned judgment and sentence awarded to the accused—Trial Court had rightly appreciated the evidence and held guilty the accused for the offence—Appeal was dismissed in circumstances.

2016  YLR  1439   PESHAWAR-HIGH-COURT

FAZAL-UR-REHMAN VS State

Ss. 9, 32 & 33—Criminal Procedure Code (V of 1898), Ss.516-A & 517—Confiscation of vehicle used in smuggling of narcotics—Application for superdari of vehicle—Trial Court after holding a full dressed trial, convicted and sentenced accused; and confiscated bus allegedly used in smuggling of narcotics—Applicant/appellant, who filed application for superdari of bus in question, claimed that he was owner of the bus; and that there was no rival claimant for the same—Applicant, contended that he was unaware regarding use of the bus in commission of the offence and alleged that the Trial Court had committed serous illegality by not complying with the provisions of Ss.32 & 33 of the Control of Narcotic Substances Act, 1997—Validity—Applicant, made no effort to associate himself with the trial proceedings, so as to prove his title of the bus; which was registered not in the name of the applicant, but in the name of another person—Applicant derived his title from said other person on the basis of affidavit, which was not produced by the applicant during trial of the case—Applicant claimed that he had sold the bus to accused persons on instalments—Applicant was only brandishing an affidavit in his name by registered owner of the bus; and onward sale of the bus through alleged Iqrarnama—Manner through which applicant had proceeded all along spoke volumes of his conduct—Trial Court, had rightly dismissed application of the applicant for superdari, and rightly denied his claim in respect of bus, which was confiscated to the State.

2016  YLR  1189   PESHAWAR-HIGH-COURT

MUHAMMAD AKBAR VS State

5. 9(c)—Recovery of narcotic substance—Appreciation of evidence—Benefit of doubt—Small quantity of sample—Evidence of police officials—Old age of accused—Charas weighing 1010 grams and heroine weighing 215 grams was allegedly recovered from the possession of accused who was an old man of 74-75 years—Accused was convicted by Trial Court and sentenced to imprisonment for six months—Plea raised by accused was that 1 gram of heroine and 5.5 grams of Charas were sent for chemical examination which quantity did not represent exact nature of recovered narcotic substances—Validity—Conviction of a 74-75 years old person could not be sustained merely on the basis of testimony of police officers, who were found to have unleashed onslaught of cases of such like nature against the accused, invariably ending in his acquittal—Accused was not convicted even in a single case—High Court set aside conviction and sentence awarded to accused by Trial Court and acquitted him of the charge—Appeal was allowed in circumstances.

2016  YLR  851   PESHAWAR-HIGH-COURT

The STATE through Advocate General, N.-W.F.P. VS KHALIL

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Sentence, enhancement of, petition for—Three kilograms heroin, was recovered from the possession of accused—When three prosecution witnesses had been examined, accused recorded his statement wherein he pleaded guilty to the charge, and left himself at the mercy of the Trial Court requesting for taking lenient view against him—Trial Court, after recording the plea of guilt of accused, while taking lenient view, convicted and sentenced accused under S.9 of Control of Narcotic Substances Act, 1997 to undergo imprisonment for ten months; and to pay a fine of Rs.5000, only with benefit of S.382-B, Cr.P.C.—According to subsection (c) of S.9 of the Control of Narcotic Substances Act, 1997, if the quantity of narcotic drug, would exceed one kilogram, then accused could be awarded sentence of death or imprisonment for life; or imprisonment for term which could extend to fourteen years and would also be liable to fine, which could be up to one million rupees—Said sentence had been squarely left at the discretion of the court, but main point was the judicious exercise of discretion in quantum of sentence—Once, a person, involved in a criminal case, would plead guilty, and placed himself at the mercy of the court, in that eventuality he would become a friend of the court, and the court always took lenient view in respect of his sentence—Extent of such leniency in awarding sentence considering accused as friend of the court, should not be such so as to frustrate the ends of justice and affect the society—Such leniency should be based on judicious scale, keeping in view over all impacts of the crime; because any extraordinary leniency towards accused in the offences, particularly, affecting the society at large could increase the ratio of crimes tremendously—In the present case, huge quantity of 3 kilograms heroin had been recovered—Heroin had not been separated from other narcotics, in Control of Narcotic Substances Act, 1997, keeping in view its severe impact on human body, as it caused many short term and long term affects on the human body—Addicts of heroin lying in streets and footpaths adding more to the agonies of their poor parents, who were already grinding in poverty—Impact of heroin, was more serious as compared to other narcotics—Offenders dealing in the despicable business of heroin, who were enemies of the entire nation, were required to be dealt with an iron hand—Trial Court, while awarding less sentence to accused taking lenient view, had not exercised its discretion judiciously, keeping in view the perilous effect of heroin over the society, and had extended undue leniency to accused—If exercise of such extraordinary leniency shown by the Trial Court was allowed to prevail, it would increase the smuggling of narcotics; and every accused after arrest would try to become friend of the court; and after getting leniency, would again indulge in the shameful business, which would frustrate the ends of justice and shatter the future of the nation—Sentence awarded to accused by the Trial Court, was enhanced from ten months’ S.I. to 20 months’ R.I., and fine from Rs.5000 to 10,000—Benefit of S. 382-B, Cr.P.C. was also extended to accused.

2016  YLR  434   PESHAWAR-HIGH-COURT

BACHA GUL VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51—Possessing and trafficking narcotics—Bail, refusal of—Principles—Accused was sitting in the Motorcar in question at the time of his arrest on the spot, and huge quantity of narcotics, were recovered from the rear doors, as well as trunk of the same—Samples separated from the lot, were sent to the Laboratory and report of Chemical Examiner, was positive—Punishment for the offence, fell within the prohibitory clause of S.497, Cr.P.C.—Section 51 of Control of Narcotic Substances Act, 1997, provided that bail would not be granted to an accused charged with an offence under that Act, or under any other law relating to narcotics, where the offence was punishable with death—When the quantity of narcotics would exceed one Kilogram, case would fall in clause (c) of S.9 of the Control of Narcotic Substances Act, 1997 for which death penalty or imprisonment for life had been provided—Discretion under S.497, Cr.P.C., could also not be exercised with regard to offences punishable with death or imprisonment for life, unless the court at the very outset was satisfied that such a charge appeared to be false and groundless—Larger interest of the public, and State demanded that in case of huge recovery of narcotics, the discretion under S.497, Cr.P.C., should not be exercised liberally—Deeper appreciation of the record at bail stage, could not be gone into, but only it was to be seen as to whether accused was prima facie connected with the commission of the offence or not.

2016  YLR  305   PESHAWAR-HIGH-COURT

ARIF-UR-REHMAN VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—“Charas”, weighing 16 Kgs., was recovered from rear seat and engine of the car driven by accused—Complainant, separated samples weighing 5 grams from each of the 16 recovered packets, which were sealed on the spot in the presence of marginal witnesses to the recovery memo, and remaining “charas” was also sealed separately on the spot in the same manner—Samples were dispatched to Forensic Science Laboratory, wherefrom report was received in the affirmative, thereby confirming recovery of “charas” from possession of accused and co-accused—Said facts were further re-inforced by complainant, marginal witnesses, Investigating Officer and formal witnesses in their statements before the court—Testimony of such witnesses could not be seriously challenged despite searching cross-examination by the defence—Special Court, had overwhelming evidence before it to hold accused guilty of the charge and convict and sentence him to imprisonment for life, and fine of Rs.50,000—Said judgment of Special Court was upheld.

2016  PCrLJ  1178   PESHAWAR-HIGH-COURT

MUHAMMAD IRFAN VS State

1. 9(c)—Explosive Substances Act (XI of 1908), Ss. 5 & 5-A—Anti-Terrorism Act (XXVII of 1997), S.7—Possessing explosive material and narcotics—Act of terrorism—Benefit of doubt—Recovery, had not been effected from the vehicle of accused persons—One of the prosecution witnesses had stated that contraband, were in the shape of slabs, while other prosecution witness stated that same were Garda charas—Both prosecution witnesses contradicted each other in that respect—Recovery memo. and card of arrest of accused, did not bear the FIR number, due to which it was not clear that same belonged to which case; and from whom it had been received—Allegedly recovered contraband, was sent to Forensic Science Laboratory after delay of five days from its recovery, for which no plausible explanation had been offered by the prosecution; nor the concerned official in whose safe custody it were lying—Recovery of explosive materials, were also doubtful, as it was received in ‘Bomb Disposal Unit’ after delay of five days; and Bomb Disposal Expert examined the same, but neither report of Bomb Disposal Expert had been exhibited during trial, nor person who examined the same had been produced in the court in order to strengthen the prosecution version regarding recovery of explosive material—Due to non examination of author of Bomb Disposal Unit, his report had no evidentiary value regarding alleged recovery of explosive—Joint challan had been submitted in two different offences; and accused were also tried jointly by the Trial Court, which was not in accordance with law—Accused had not made any confession, nor any evidence regarding their link with ‘banned organization’ and terrorist had been established by the prosecution—Prosecution, also failed to bring on record any previous history of accused persons regarding their previous conviction or involvement in narcotics case, which could connect them with the commission of offence—Prosecution case being full of doubt and material contradiction, benefit of the same would go to accused—Prosecution had failed to prove its case against accused persons beyond shadow of reasonable doubt; and Trial Court had not appreciated the prosecution evidence in its true perspective; and was not justified in convicting accused persons—Impugned judgment of the Trial Court was set aside, accused were acquitted of the charges, and were released, in circumstances.

2016  PCrLJ  754   PESHAWAR-HIGH-COURT

MOHSIN GUL VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51—Possessing and trafficking narcotics—Bail, refusal of—Contraband was recovered from the truck on the pointation of accused, which was being driven by him—Keeping in view the recovery of huge quantity of narcotics weighing 4,800 grams; about which report of Forensic Science Laboratory was also in the positive; and the offence being non-bailable and fell within the mischief of S.51 of Control of Narcotic Substances Act, 1997 and S.497(1), Cr.P.C., accused was not entitled to the concession of bail.

2016  PCrLJ  730   PESHAWAR-HIGH-COURT

MUHAMMAD SAEED KHAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking narcotics—Bail, grant of—Accused persons, who were in jail since 11-11-2015, for alleged recovery of total 2400 grams of “charas”, were no more required for investigation or interrogation purposes—No prospect was available of the commencement of trial of accused persons in near future—No strong reason existed to withhold the concession of bail, when speedy trial was indefeasible right of accused persons—Mere heinousness of crime, would not disentitle accused from the concession of bail—Accused were directed to be released on bail, in circumstances.

2016  MLD  920   PESHAWAR-HIGH-COURT

State VS WARIS KHAN

Ss. 9(c) & 21—Prohibition (Enforcement of Hudood) Order (4 of 1979), Arts.3 & 4—Police Rules, 1934, R.25.2(3)—Police Order (22 of 2002), Art.18—Criminal Procedure Code (V of 1898), S.417(2-A)—Possessing and trafficking narcotics—Appeal against acquittal—Reappraisal of evidence—Recovery of alleged charas of 2 Kg and 35 grams, was effected from possession of accused by Police Officer, who was Seizing Officer, complainant, as well Investigating Officer in the case, meaning thereby that he was three in one—Under the law, complainant and accused were two opponents and contesting parties—Role of an Investigating Officer was of a neutral authority, whose object was to unearth the truth—Investigating Officer, could not be part or a member of a party in a case, which he was investigating—Concept of honest investigation was based on non-partisanship and neutrality—Reason and spirit of separating investigating wing from the operation wing of Police, also emanated from the said fact, which reflected in Art.18 of the Police Order, 2002—Element of honest, transparent and fair investigation, lacked in the present case—Despite receiving spy information, ASI Police, did not inform his highups; so that the proceedings could be conducted in accordance with law—According to S.21 of Control of Narcotic Substances Act, 1997, the officer below the rank of Sub-Inspector of Police, had no power of entry, search, seizure and arrest without warrant—Such officer was required at least to inform an official having rank of Sub-Inspector of his Police Station—In the present case, ASI straightaway went to the spot, without conducting any test purchase regarding allegation of selling narcotics by accused—Such action of the ASI created doubt in the prosecution case—Type of charas had also not been mentioned in the FIR, as to whether the recovered contraband was charas Garda or charas Pukhta, which had made the recovery doubtful—Samples, were sent by Investigating Officer to Forensic Science Laboratory after unexplained delay of 12/13 days—Despite prior information about selling of charas by accused, no independent witness had been associated, which could support the prosecution case—Police Officials, were as good as witnesses as other private person—Where the complainant, Investigating Officer was the same, and marginal witnesses, were also his subordinates/colleagues, no chance was of fair investigation existed especially where accused was already known to the prosecution witness—Every possibility of false involvement of accused in the present case existed, wherein the whole proceedings were conducted by one person, who being below the rank of Sub-Inspector who had no power to seize, search and arrest accused—Prosecution had failed to bring on record any history of conviction of accused in those cases—Mere registration of other FIRs against accused, could not be made ground of his conviction—Material contradictions were noticed in the statement of prosecution—Trial Court, in circumstances, had rightly acquitted accused from the charges levelled against him through impugned judgment, which needed no interference by High Court.

2016  MLD  857   PESHAWAR-HIGH-COURT

SHAH PUR VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51—Bail, refusal of—Principle of consistency—Scope—Person who was on driving seat of the vehicle should be held responsible for transportation of narcotics having knowledge of the same as no condition or qualification had been made in S.9(c) of Control of Narcotic Substances Act, 1997 that the possession should be an exclusive one and could be joint one with two or more persons—Accused’s role being driver of vehicle was different than the role of co-accused who were occupying other seats as accused being driver of the vehicle was in charge of the same and all the articles lying therein would be under his control and possession, therefore recovery of 1000 grams heroin from secret cavity of said vehicle would have been in conscious knowledge of accused and recovery of total 1500 grams of heroin made jointly from his possession and secret cavity of his car had in conscious knowledge of the driver of the vehicle—Offence punishable under Control of Narcotic Substances Act, 1997 were by their nature heinous and considered to be offence against the society at large and it was for this reason that the statute itself had provided a note of caution under S.51 of Control of Narcotic Substances Act, 1997 before enlarging an accused on bail in ordinary sense—While referring to standard set out under S.497, Cr.P.C. for grant of bail to an accused involved in an offence under S.9 of Control of Narcotic Substances Act, 1997, even on that basis an accused charged with an offence prescribing various punishments was not entitled for grant of bail merely on account of nature or quantity of narcotics—Appreciation of evidence was not permissible at bail stage and secondly in such situation looking to peculiar features and nature of offence, Trial Court may depart from normal standards prescribed in the case—Accused, in circumstances, was not entitled to concession of bail—Petition was dismissed, accordingly.

2016  MLD  702   PESHAWAR-HIGH-COURT

IJAZ KHAN VS State

Ss. 9(c) & 29—Possessing and trafficking narcotics—Appreciation of evidence—Three accused persons, separately disclosed and pointed out the presence of narcotic i.e. charas garda hidden in both sides of bus in question—94,800 Kgs charas in 79 packets, was recovered from the bus—10/10 grams from each packet of charas, were separated for Forensic Science Laboratory examination, while remaining packets were sealed into four plastic sacks—Presence of accused persons in the bus at their respective position, stood amply established—During personal search of one of accused persons, registration book of the bus in question and a stamp paper regarding purchase of bus was recovered—Separation of samples of 10 grams from each of 79 packets, its handing over by the complainant to prosecution witness, its safe custody in the Malkhana; and its onward delivery to constable to be taken to Forensic Science Laboratory, was not challenged by accused persons—Positive Forensic Science Laboratory’s report, put a final seal on the recovered contraband to be charas garda—Presence of accused persons in the vehicle stood fully established—Prosecution witnesses in one voice stated about the recovery of huge quantity of narcotics, from the bus—Control of Narcotic Substances Act, 1997, was a special law, and it had been specially provided in its S.29 that presumption of recovery of contraband items was always deemed to be from accused, unless it was proved to the contrary—Except for minor and negligible contradictions, which did not strike at the roots of the prosecution version, case stood proved against accused persons to the hilt, leaving no room to doubt the veracity of the statements of prosecution witnesses—Prosecution witnesses, were not at all questioned about any previous ill-will or animous with accused persons, whereby accused could have been substituted with so-called other accused—Mere denial of the charge by accused and pleading innocence, without substantiating the same through cogent and convincing evidence in the face of a strong prosecution case, could not earn them acquittal—Prosecution case stood fully proved against accused persons, Trial Court had recorded a proper and well reasoned judgment according to law and evidence available on the record—Such findings did not suffer from any illegality, misreading or non-reading of evidence, which could in turn call for interference in appeal.

2016  PCrLJN  87   PESHAWAR-HIGH-COURT

NOOR ZALI SHAH VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Accused was not present in the house when the raid was conducted, and alleged recovery was made from said house—Prosecution witness, who claimed ownership of said house which was given on rent to accused, neither was witness of recovery nor in possession of written rent deed—No independent witness was associated at the time of alleged recovery of narcotics—All witnesses, except one, were Police Officials—No search warrant was obtained in compliance with mandatory legal provision, neither witnesses were accompanied at the time of recovery in compliance with the provision of S.103, Cr.P.C.—Testimony of witnesses in the case was to be accepted with great care and caution—Material contradiction existed in the statements of prosecution witnesses—Glaring material contradiction was also noticed with regard to the nature of ‘charas’, which was shown “gardha” in the FIR, but complainant himself contradicted by admitting that recovered contraband was in different solid pieces—Such admission on the part of the complainant/Seizing Officer would create serious doubt about the nature of ‘charas’ recovered; and the sample separated therefrom—Complainant admitted that inmates of the house were present at the time of raid and alleged recovery of “charas”, but statement of none of them was recorded—Material discrepancies in the case of prosecution, together with the admitted factum of delay in sending the samples to Forensic Science Laboratory had created serious dent in the prosecution case against accused—Prosecution having not been able to bring home charge against accused, accused could not be convicted and sentenced for offence under S.9(c) of Control of Narcotic Substances Act, 1997—Impugned judgment of the Special Court, was set aside and accused was acquitted of the charge and was set at liberty.

2016  PCrLJN  62   PESHAWAR-HIGH-COURT

ABDUL HAMEED VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Ocular testimony of the complainant, was subjected to extensive cross-examination by accused, but complainant stuck to his stance—Complainant had fully proved that 8 packets of charas weighing 10 Kgs. had been recovered from the secret cavities made in the floor of motor car which was in exclusive possession of accused—Prosecution witnesses firmly supported stance of the complainant—Report of Forensic Science Laboratory, duly signed by Chemical Expert and Assistant Chemical Examiner, with regard to contraband charas was positive, which fully proved stance of the complainant—Barring minor and negligible contradictions, did not strike at the roots of the prosecution case—Being the driver of car from where charas was recovered, accused was overall incharge of the car, he could not plead or feign ignorance about the contraband charas hidden in the secret cavities of the car—No previous ill-will or animus of accused was established with the prosecution witnesses, whereby he could have been falsely nabbed and charged for the possession of the contraband charas—Not only the recovery of the charas from the motor car stood proved, but also the separation of the sample, its sending to the Forensic Science Laboratory and the affirmation report—Mere denial of charge and pleading of innocence without substantiating the same through cogent evidence, would not be sufficient to earn him acquittal—Prosecution case stood fully proved against accused to the hilt; and Trial Court had recorded well reasoned judgment after proper application of mind—Impugned judgment,  which  did  not  suffer  from  any  illegality,  misreading  or non-reading of evidence would not be interfered with in appeal.

2016  YLR  2755   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SAJID VS State

1. 9(c)—-Possession, import or export, trafficking or financing of trafficking of narcotic drugs—Appreciation of evidence—Power to examine accused—Prosecution had failed to establish connection of the case property with the parcels of samples deposited with the office of the Forensic Science Agency—Samples of the recovered narcotics had been handed over to the prosecution witness after five days of the recovery for their transmission to the office of Chemical Examiner—Samples had not been deposited at the Chemical Examiner Officer on the same day—Accused had been prejudiced, as questions put to the accused in his examination under S. 342, Cr.P.C did not focus on the evidence available on the record and the Narcotics Analysis Report had not been brought to his notice—Burden always remained on the prosecution to prove affirmatively right from the arrest of accused, seizer of the recovered contraband till it reached the office of Narcotics Analyst/Chemical Examiner—Appeal against conviction was allowed accordingly.

2016  YLR  2455   LAHORE-HIGH-COURT-LAHORE

NASIR KHAN VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Fact that as to how the raiding party came to know about accused could not be established—Source of identification of accused, was totally missing—Prosecution could succeed only if it was able to prove that all three samples drawn from three packets of heroin said to have been possessed by accused, on analysis, were found to contain heroin—Three parcels were received in the office of Chemical Examiner, but at the back of the report of Chemical Examiner, only one sample was mentioned—Police constable, who had deposited the sealed parcels to the office of the Chemical Examiner, had deposed that “perhaps the parcels of another case were also handed over to me at the same time by the Moharrar; that I do not remember, if the said parcels were also of heroin or not”—Said deposition of Police constable, had created doubt about the sample analyzed—Unless the prosecution was able to show that the sample which was analyzed by the Chemical Examiner, was the very same sample which was drawn from the contraband heroin, could not be relied upon—Prosecution had failed to prove that the sample fetched from the contraband was the same sent to the Chemical Examiner for analysis—Report of Chemical Examiner could not be relied upon as material evidence against accused—Judgment passed by Special Court, was set aside—Accused who was on bail, his bail bonds were discharged, in circumstances.

2016  YLR  2385   LAHORE-HIGH-COURT-LAHORE

SHOAIB KHAN VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Sentence, reduction in—Both the prosecution witnesses being government functionaries, were independent, as well as, unbiased—Both said witnesses gave detailed pen-picture of the process of recovery of huge quantity of narcotic substance from the possession of accused–Said prosecution witnesses were tested on the parameters of lengthy cross-examination, but they remained coherent on salient features and nothing could be brought on record in favour of accused—Neither the investigation carried out by the Investigating Officer was challenged, nor a single circumstance was brought on record to substantiate that the prosecution witnesses had previous ill-will against accused persons—Prosecution had successfully established its case against accused—Defence version, could not be substantiated through any independent circumstance—Trial Court, in view of overwhelming material brought on record was justified in recording conviction against accused persons under S.9(c) of the Control of Narcotic Substances Act, 1997—Contraband narcotic substance recovered from accused which consisted charas was not lethal as heroin—Accused was first offender and there was no previous record of the nature to his credit—Charas recovered being of lesser gravity and magnitude, as compared to heroin, infliction of sentence of imprisonment for life, would be sufficient to meet the dictates of justice—Death sentence awarded to accused, was converted into imprisonment for life—Benefit of S.382-B, Cr.P.C., was also extended to accused.

2016  YLR  2173   LAHORE-HIGH-COURT-LAHORE

RAFAQAT ALI VS State

Ss. 9 (c) & 6—-Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic drugs etc.—Appreciation of evidence—Police officials as sole recovery witnesses, competency of—Principles—Accused was alleged to have been arrested while he was in possession of forty kilogram of “Poast”—Trial Court, having convicted accused, sentenced him to undergo life imprisonment along with payment of fine—Recovery witnesses had fully supported the complainant’s version—Prosecution witnesses had been put to lengthy cross-examination, but defence could not shatter their testimony on material points like date, time and place of recovery of contraband material from the accused—Prosecution case was although based on the testimony of police officials only, but no ill-will or animosity had been brought on record during investigation and trial, that could prompt the police witnesses to falsely involve the accused in present case—Police witnesses were as good and competent witnesses as anybody else, unless they were proved to be inimical against the accused—Report of Chemical Examiner was positive, which had corroborated the ocular account furnished by the prosecution witnesses—Prosecution had proved the charge against the accused beyond shadow of reasonable doubt—Appeal was dismissed accordingly.

2016  YLR  1474   LAHORE-HIGH-COURT-LAHORE

MOHAMMAD MUNIR VS State

1. 9(c)—Recovery of narcotic substance—Appreciation of evidence—Sentence, reduction in—Charas weighing five kilograms was recovered from the possession of accused in five packets and 10 grams sample was taken out from each packet—Trial Court convicted the accused under S. 9(c) of Control of Narcotic Substances Act, 1997, and sentenced him to imprisonment for life along with fine—Validity—Charge against accused was of 5 kilograms Charas and he had already served out period of more than six years of his substantive sentence excluding the remissions—High Court maintained conviction of the accused but reduced the sentence to already undergone and amount of fine was also reduced from Rs.100,000 to Rs. 35,000.

2016  YLR  1362   LAHORE-HIGH-COURT-LAHORE

The STATE VS NAZIRAN BIBI

1. 9(b)—Criminal Procedure Code (V of 1898), S.417—Qanun-e-Shahadat (10 of 1984), Art.129(g)—Possessing and trafficking narcotics—Appeal against acquittal—Reappraisal of evidence—Law Officer had submitted that reappraisal of marginal witness of the recovery memo, who was star witness, was required—Even assuming that another view could be taken against accused in respect of the charge, that could not be ground to set aside an order of acquittal—In order to succeed, the State must show that the findings recorded by the Trial Court, could effectively be dislodged; and such findings were unwarranted—Said marginal witness of recovery memo, had furnished ocular account of alleged recovery, whereas during the cross-examination he denied his presence at the time of alleged recovery and arrest of accused—Evidence of the witness had left the impression that alleged recovery of narcotic substance was not recovered in his presence from the possession of accused; and that he had, later, on come to know that alleged narcotic was recovered from the accused—Said witness had himself laid the foundation for disbelieving him—Prosecution had offered no explanation for non-citing name of important witness, a lady constable, who searched accused—No effort was made by the prosecution to join the lady constable in the investigation to bring the witness as prosecution witness—Evidence of the lady constable, in the totality of facts and circumstances of the case, was ‘material’ for the purpose of the case—Court was entitled to draw an adverse inference as provided in Art.129(g) of Qanun-e-Shahadat, 1984; and came to the conclusion that said witness had been purposely not cited in calendar of the witnesses, because, if produced, it would have been totally unfavourable to the prosecution version—Star witness did not support the prosecution case—Prosecution had failed to bring home the charge against accused to convict her for the commission of alleged offence—No probability existed that accused would be convicted of the offence charged for appeal against acquittal of accused being without merit, was dismissed, in circumstances.

2016  YLR  1205   LAHORE-HIGH-COURT-LAHORE

SAEEDA GULL VS State

1. 9(c)—-Possession, import or export, trafficking or financing trafficking of narcotic drugs—Appreciation of evidence—Prosecution failed to prove recovery of narcotic substances and safe custody of the same—False implication, plea of—Twenty kilograms of Charas along with cash were alleged to have been recovered from accused, while they were transporting the same—Trial Court, having convicted accused under S. 9(c) of Control of Narcotic Substances Act, 1997, sentenced them to undergo life imprisonment, along with payment of fine—Prosecution had neither established safe custody of recovered substance, nor had it produced all recovery witnesses—Statements of police witnesses as to handing over of accused and case property were contradictory—Prosecution was under duty to establish by cogent evidence that the Charas, seized from possession of accused, had been kept in safe custody—Place, where samples of the recovered substance had been kept during time from its seizure till its deposit in Malkhana on the same day, was not clear—Recovered narcotic substance was shown to have been handed over to police constable for its transmission to Chemical Examiner Office after many days of the recovery; whereas, the samples were deposited in Chemical Examiner Office on the next day—Mere oral evidence as to recovery of Charas could not discharge the heavy burden, which lay on prosecution—Prosecution, in view of said inconsistencies and contradictions, was not able to prove safe custody of the recovered substance through material and cogent evidence—Police witness deposed that he had separated ten grams from each packet for chemical analysis, but during cross-examination, he had admitted that they had weights in their investigation box from twenty grams to two kilograms—Said contradictions in deposition of police officials could be stated to be minor and irrelevant in absence of positive and material evidence—Prosecution had failed to prove the charges against the accused—High Court, setting aside conviction, acquitted all accused—Appeals against conviction were accepted accordingly.

2016  YLR  1093   LAHORE-HIGH-COURT-LAHORE

KHANI GULL VS State

Ss. 9(c), 6, 7 & 8—-Qanun-e-Shahadat (10 of 1984), Art. 129 (g)—Possession, import and export, trafficking and financing the trafficking of narcotic drugs etc.—Appreciation of evidence—False implication, plea of—Benefit of doubt—Court may presume certain facts—Seventy-five kilogram of Charas was alleged to have been recovered from the car of the accused while he was transporting the same—Trial Court convicted the accused and sentenced him to undergo life imprisonment along with payment of fine—Material prosecution witnesses remained inconsistent with regard to the recovery of the narcotics including colour and shape of the narcotics, preparation of samples of the same, sending of the same to the Chemical Examiner, its safe custody, relevant dates, etc.—Said contradictions in statements of the prosecution witnesses reflected that the prosecution had failed to prove the safe custody of the samples and case property, which had caused dent in the prosecution story and missed the link in the chain of prosecution evidence—Prosecution had also withheld the best available evidence in shape of prosecution witness, who had allegedly handed over the complaint, sample parcels and case property to the other prosecution witness, which led to draw adverse inference in view of Art. 129(g) of Qanun-e-Shahadat, 1984—In view of the defence statement recorded under S.342, Cr.P.C, the prosecution evidence deserved to be rejected—Possibility of false implication of the accused could not be ruled out—Conviction was based on misreading, non-reading and mis-appreciation of available evidence—High Court, extending benefit of doubt, acquitted the accused—Appeal was allowed in circumstances.

2016  YLR  1060   LAHORE-HIGH-COURT-LAHORE

ABID ASHRAF VS State

Ss. 9 (c) & 29—Recovery of narcotic substance—Appreciation of evidence—Shifting of onus—Five accused persons were convicted and sentenced by Trial Court for maximum imprisonment for three years as Charas weighing different quantities maximum upto three kilograms were recovered from each accused—Validity—Prosecution led sufficient evidence to prove case against all five accused persons beyond any shadow of doubt—Once initial burden of proof was discharged by prosecution with cogent evidence then in terms of S. 29 of Control of Narcotic Substances Act, 1997, accused persons had come under heavy burden to prove their innocence through reliable evidence—Accused did not opt to appear as their own witnesses under S. 340(2), Cr.P.C. to prove their innocence—No evidence was available on record on behalf of accused persons that police had some grudge against them to falsely implicate them in the case—Improbable to plant such a huge contraband against accused persons without any reason—High Court declined to interfere with conviction and sentence awarded to accused persons—Appeal was dismissed in circumstances.

2016  YLR  744   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD IMRAN VS State

1. 9(c)—Recovery of narcotic substance—Appreciation of evidence—Benefit of doubt—Place of recovery not in exclusive possession—Heroin weighing 1145 grams was recovered from accused who was convicted by Trial Court and sentenced to imprisonment for six years—Validity—Case property was handed over to prosecution witness at 7pm on 14-12-2013 and the same had given rise to a question as to how the parcel was received in concerned office on the same day at or after 7pm because the office did not remain open till such time—Room from where contraband material was recovered at the pointing of accused was not locked when Investigating Officer reached there along with police party to effect recovery—Almirah from which heroin was allegedly recovered at the pointing of accused was also not locked and accessible for other dwellers of the abode—Such had created doubts about veracity of recovery of contraband material at the instance of accused—Single circumstance which created reasonable doubt regarding prosecution case, the same was sufficient to give benefit of the same to accused—High Court extended benefit of doubt to accused person, set aside conviction awarded by Trial Court and acquitted him of the charge—Appeal was allowed under circumstances.

2016  YLR  92   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ARSHAD VS State

1. 9(c)—-Prohibition of possession, import or export and trafficking or financing trafficking of narcotic drugs, etc.—Nature and quantity of narcotic substance, determination of—Requirement—Case property kept in manner different from what described by prosecution— Effect— Psychotropic substance not alleged to have been recovered— Psychotropic substance detected during chemical examination of narcotic materials— Conviction for psychotropic substance without indictment—Benefit of doubt—Quantum of narcotic substances, determination of—Principles—Huge amount of heroin, charas, weapons with ammunition and cash amount were alleged to have been recovered from accused persons, while they were transporting the same by car—High Court in previous appeal against conviction had remanded case to Trial Court with direction to send case property to Chemical Examiner to ascertain remaining quantity and nature of the same and then to decide the case afresh in light of report of Chemical Examiner and after examining accused under S. 342, Cr.P.C. to the extent of said report—Trial Court, after post-remand proceedings, convicting accused under S. 9(c) of Control Narcotic Substances Act, 1997, sentenced them to imprisonment for life along with fine—Accused, through present appeal, only sought reduction of their sentence—High Court, while remanding previous appeal to Trial Court, had observed that Trial Court had failed to ascertain actual quantity of narcotic substances/case property produced in court and nature of same which was absolutely necessary for just decision of case, and that quantity of narcotics allegedly recovered from accused was relevant factor while deciding case under Control of Narcotic Substances Act, 1997, and that Trial Court, having made observations as to quantity and nature of case property in peculiar circumstances of case, did not send case property for its analysis and allowing de-sealing of same—Trial Court, as directed, sent remaining case property to chemical examiner for chemical analysis and reports whereof revealed that heroin and charas had been detected from case property, but no opium could be detected; psychotropic substance was also detected in suspected parcels of heroin and charas—Trial Court, in its judgment, had stated that plastic Toras in which case property had been secured were not sealed, and alleged packets were not in shoppers as was the case of prosecution, but the same were in white cloth, which reflected that case property was no more intact—Psychotropic substance was of no use for prosecution for the reasons that even if Psychotropic material had been detected from case property, firstly, it was not case of prosecution, secondly, said material was not found sealed and intact when produced before Trial Court, thirdly, matter was remanded to Trial Court but accused were never indicted for recovery of any psychotropic substance from their possession—Conviction of accused for said psychotropic substance was not warranted by law—Benefit of every doubt was to be extended to accused—Accused could only be convicted for narcotics as detected by Forensic Science Agency as per report and quantity of sent narcotics for chemical analysis mentioned in said report—High Court, maintaining conviction, sentenced accused to rigorous imprisonment for period already undergone by them; and amounts of fine were reduced—Appeal against sentence was allowed in circumstances.

2016  PCrLJ  1882   LAHORE-HIGH-COURT-LAHORE

JAMSHED KHAN VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Sentence, reduction in—Veracity of the allegation against accused was not doubtful, as counsel of accused, had frankly conceded that, conviction had been correctly made by Trial Court; and there was nothing wrong with the same—Prosecution had successfully proved the possession of narcotics substance from accused—Conviction of accused was sustained—Prosecution had not agitated at any stage that accused was a previous convict; or he bore a nasty character, spotted with ugly allegation alike—Enigmatic abandoning of co-passengers of accused by the prosecution, was a crucial circumstance, which needed to be looked at with doubt, as to the award of capital punishment to accused—Accused’s maiden involvement in such like offence could be considered a mitigating circumstance with regard to quantum of sentence—Extreme penalty of death would be too harsh to be inflicted on accused—Accused, did not have any previous criminal antecedent, so had to be believed the first offender—Death sentence of accused, was converted into imprisonment for life, in circumstances.

2016  PCrLJ  1800   LAHORE-HIGH-COURT-LAHORE

AMJAD SIDDIQUI VS State

Ss. 9(c) & 48—Constitution of Pakistan, Art.10-A—Possessing and trafficking narcotics—Appreciation of evidence—De-sealing/opening the parcel of case property—Fair trial, concept of—Accused had assailed the order of the Trial Court, whereby request of accused for de-sealing/opening the parcel of the case property, was turned down—Accused, was allegedly burdened with the allegation of possessing the huge quantity of narcotics; and charge against him was one of capital punishment—Entire case property produced in the court, must be opened in the court, so that the witnesses; and other concerned, could see the same—Trial Court, without opening the sealed parcel, had illegally exhibited the case property, without showing it to the witnesses—Observation of the Trial Court was based on presumption—Trial Court by not opening the case property, even on repeated request of the defence Counsel, had strangulated the fair trial, which was a vested right of accused—Refusal to expose the case property in the open court, was even against the mandate of Art.10-A of the Constitution, which enshrined the fair trial—Trial Court, without any lawful justification, could not decide the case on presumption and surmises—Prosecution was to produce the case property in the court; and get it exhibited—Court was directed to open/de-seal the case property in the open court, so that the witnesses; and other concerned, could see the same in the open court; and accused or his counsel, could cross-examine the recovery witness in accordance, with law—Appeal was accepted and Trial Court was directed to open/de-seal the case property in the open court accordingly.

2016  PCrLJ  1735   LAHORE-HIGH-COURT-LAHORE

QAMAR-UD-DIN BUTT VS HOME SECRETARY GOVERNMENT OF PUNJAB

Ss. 9(c) & 15—Possession of narcotic—Sentence—Fine imposed on accused—Non-payment of fine—Reduction in quantum of fine and release from jail—Accused who had served out his sentence of imprisonment was confined in jail just because he could not pay the fine of Rs. 500,000 imposed on him by Trial Court—Imposition of fine to the accused was the sole discretion of the court, regulated by the facts and circumstances of a case—Fine of Rs. 500,000 imposed on the accused had been maintained up to the Supreme Court, however such fact may not debar the High Court to reduce the fine—Liberty of an individual was of prime importance for the High Court and just because of non-payment of fine, which the accused could not arrange while in jail, his liberty could not be curtailed—High Court reduced fine imposed on accused from Rs. 500,000 to Rs. 50,000 and in the alternate to spend two months imprisonment—As accused had already spent two months in prison due to default of fine, High court directed to release him immediately from jail—Constitutional petition was disposed of accordingly.

2016  PCrLJ  1718   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD YOUNIS VS State

1. 497—-Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b) & 9(c)—Possession, import or export, trafficking or financing of trafficking of narcotics—Bail, grant of—Charas weighing 1370 grams was allegedly recovered from the accused, which was slightly higher than the maximum weight mentioned in S. 9(b) of Control of Narcotic Substances Act, 1997; thus, a meagre quantity of the narcotic substance, that was 370 grams of Charas, had brought the present case within the mischief of S. 9(c) of the Act—Charas, as mentioned in the FIR, was wrapped in a shopper at the time of alleged recovery, but the contents of the FIR did not make clear as to whether the complainant had weighed the Charas with or without the shopper bag—Questions as to the net weight of the recovered narcotics and whether the case fell within the ambit of S. 9(b) or 9(c) of the Act would be determined after recording of the evidence—Mere involvement of the accused in some other criminal cases was not sufficient to refuse bail to him if he was otherwise entitled to the relief on merits of the case—Bail application was allowed accordingly.

2016  PCrLJ  1668   LAHORE-HIGH-COURT-LAHORE

ZAFAR IQBAL VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Prosecution had failed to establish safe custody of recovered substance from the date of its seizure till production in the court—Material contradictions, inconsistencies and discrepancies existed in the prosecution evidence—Investigating Officer, appearing before the Trial Court having become hostile, prosecution case had become doubtful—Strong doubt existed as to whether the sample analyzed by the Chemical Examiner was taken out of the same material allegedly was recovered from accused—Such discrepancy created reasonable doubt with respect to the link with evidence produced on behalf of the prosecution—Positive reports of Chemical Examiner, in circumstances, failed to inspire confidence—Prosecution had withheld best evidence available with them—Non-production of said material witness, cast serious doubt on the prosecution case, when prosecution had failed to explain the reason of withholding of such important evidence—Prosecution case was highly doubtful and based on un-natural and unbelievable story—Deposition of prosecution witnesses, were not upto the mark—Possibility, could not be ruled out of consideration that accused was falsely implicated in the case—Prosecution having failed to prove its case against accused beyond any shadow of doubt, findings of the Trial Court, which were based on misreading, non-reading and mis-appreciation of evidence, were not sustainable in the eye of law; accused deserved acquittal—Conviction and sentence awarded to accused, were set aside and accused was acquitted of the charge, in circumstances.

2016  PCrLJ  1234   LAHORE-HIGH-COURT-LAHORE

SHAHID MEHMOOD VS State

1. 9(c)—Possession, import or export, trafficking or financing of trafficking of narcotic drugs etc.—Appreciation of evidence—Statement of prosecution/police witnesses were contradictory and falsified the prosecution version as to handing over the custody of the recovered Charas and accused, which created ground to believe that the case property had not been kept in safe condition—Constable, who had allegedly taken the sealed parcel of the case property and parcel of the sample from the place of occurrence to the police station, had not been examined by the prosecution—In absence of deposition of said person, who carried the sealed parcels, conviction could not be passed—Nothing was available on record to show that the case property had been produced before the trial court—Such production was necessary to corroborate the same with the report of the Chemical Examiner—Non-production created serious infirmity and doubt about the existence of the case property—High Court, setting aside the conviction, acquitted the accused—Appeal against conviction was allowed accordingly.

2016  PCrLJ  1170   LAHORE-HIGH-COURT-LAHORE

Haji ZAFAR ABBAS VS State

Ss. 9(c), 8, 7, 5 & 36— Control of Narcotic Substances (Government Analysis) Rules (2001), R. 6—Prohibition of possession, import and export, trafficking or financing trafficking of narcotic drugs—Appreciation of evidence—Report of result of test or analysis—Scope—Prosecution evidence came up with material contradictions, which had created strong doubt in the veracity of the prosecution case—Eye-witnesses of the place of occurrence had given different versions—Prosecution witnesses had stated the colour of the recovered Charas to be blackish; whereas, the report of Chemical Examiner showed that the colour was greenish—Said contradiction as to the colour of the recovered substance was damaging to the prosecution case—Statement of prosecution witnesses and report of Chemical Examiner were also contradictory as to number of parcels of Charas and opium sent to the Chemical Examiner and as to manner and time of their transmission to the Chemical Examiner—Report of Chemical Examiner could not be said to be full and complete, disclosing the full protocols of the test applied, except the bare opinion that the packets contained Charas—In terms of R. 6 of Control of Narcotic Substances (Government Analysis) Rules, 2001, report of the Chemical Examiner containing his opinion must have disclosed the procedure and the reasons on which his opinion was based—Opinion rendered by the Chemical Examiner was no evidence, unless the same was supported with reasons—Said patent infirmity noticed in the report was fatal to the prosecution case—High Court, setting aside the conviction and sentence, acquitted the accused— Appeal was allowed accordingly.

2016  PCrLJ  1161   LAHORE-HIGH-COURT-LAHORE

MIRAJ KHALID VS State

1. 9(c)— Recovery of narcotics— Appreciation of evidence—Amalgamated samples—Charas weighing 135 kilograms and opium weighing 10 kilograms were recovered from accused which was packed in shape of packets weighing 1 kilogram each—Trial Court convicted the accused and sentenced him to imprisonment for life—Validity—No separate samples taken from each packet recovered from accused were sent for chemical analysis rather only one parcel of 1350 grams Charas and 1 parcel of 100 grams opium in amalgamated form were prepared—Chemical Examiner’s Report regarding Charas and opium, showed that one consolidated sample of Charas and one consolidated sample of opium was tested—Only one packet of Charas weighing 1350 grams out of 135 packets and one packet of opium weighing 100 grams out of 10 packets could be considered against accused—Imprisonment for 4 years 6 months upon recovery of Charas exceeding 1 kilograms upto to 2 kilograms and fine of Rs. 20,000 while simple imprisonment for 1 year and 8 months upon recovery of opium upto 1000 grams and fine of Rs.7000 was reflected in the Schedule provided in Ghulam Murtaza’s case PLD 2009 Lah. 362—High Court took the lenient view and reduced the imprisonment for life to already undergone by accused—Appeal was dismissed accordingly.

2016  PCrLJ  1036   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD BOOTA VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence— Prosecution had neither established safe custody of recovered substance, nor had produced the constable as witness to establish that complainant/Inspector handed over to him recovered substance and that accused were sent to Police Station—Complainant/Police Inspector in his statement in the court, had deposed that he sent both parcel and accused to Police Station, but other Police Officials gave inconsistent and contradictory statements—Said inconsistencies and contradictions led to an irresistible inference that the prosecution had not been able to prove safe custody of the recovered substance through material and cogent evidence—Samples, in the case had been tampered and variation had been found in the weight of alleged recovered substance—Lacuna existed in the evidence produced by the prosecution to prove that recovered substance (Poppy straw) was deposited in Malkhana and same was not tampered with—Alleged recovered substance, was shrouded in mystery and remained unexplained as to what was recovered from the possession of accused—Strong doubt existed as to whether the sample analyzed by the Chemical Examiner was taken out of same material that was allegedly recovered from accused at the time of raid—Said discrepancy had created a reasonable doubt with respect to the link evidence produced on behalf of prosecution—Alleged contraband was not weighed at the spot—In the light of numerous contradictions, in the conduct of prosecution witnesses, their testimony failed to inspire confidence—Prosecution had not been able to prove the charge levelled against accused—In view of inherent illegality in the matter, conviction of accused was set aside; he was acquitted of the charge, and was directed to be released.

2016  PCrLJ  953   LAHORE-HIGH-COURT-LAHORE

ANTI-NARCOTICS FORCE through Assistant Director, ANF, Multan VS The STATE

Ss. 9(b) & 47—Probation of Offenders Ordinance (XLV of 1960), Ss.3 & 5—Criminal Procedure Code (V of 1898), S.562—Possessing and trafficking narcotics—Sending accused on probation—Appreciation of evidence—Heroin weighing 450 grams was recovered from female accused, whereas 300 grams from male accused who was juvenile—Accused persons, who made confession, and both admitted that narcotic in question, was recovered from them—Accused persons, requested for pardon, with an undertaking that in future they would never indulge in such like activity—On the basis of said confessional statements Trial Court convicted accused persons under S.9(b) of the Control of Narcotic Substances Act, 1997, and sentenced them to R.I. for two years and nine months, each with fine of Rs.20,000 each, with benefit of S.382-B, Cr.P.C.—Accused persons were dealt with under S.5 of Probation of Offenders Ordinance, 1960, and given under the supervision of the Probation Officer for a period of three years; with the reasoning that female was of young age and household lady, whereas male accused was a juvenile being less than 18 years, and also sole earning member of his family—Said order of sending accused persons on probation was objected to by Special Prosecutor for ANF, contending that court constituted under Control of Narcotic Substances Act, 1997, was not at all competent to send accused persons on probation—Under S.3 of Probation of Offenders Ordinance, 1960, High Court, a court of Session, a Magistrate 1st Class, and any other Magistrate, especially empowered in that behalf, could exercise powers under said Ordinance, whether the case came before it for original hearing, or in appeal or in revision—Provisions of Code of Criminal Procedure, 1898, would be applicable during trial and appeal, unless not expressly excluded—Criminal Procedure Code, 1898 being applicable to narcotic cases, S. 562, Cr.P.C., could not be brushed aside—Court in narcotic case, if deemed it proper, could send accused on probation—Objection being misconceived was rejected; and appeal having no force, was dismissed.

2016  PCrLJ  844   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD FAAZIL VS State

Ss. 9(c), 35 & 36—Possessing and trafficking narcotics—Appreciation of evidence—Benefit of doubt—Glaring discrepancies existed in the statements of both the prosecution witnesses—Defence witness produced by accused, was Deputy Assistant Director ASF, (Airport), who supported the version of accused; his statement could not be ignored—Analysis of the sample of recovered narcotics, was actually conducted by the Bio Chemist, and not by the Chemical Examiner himself—Bio Chemist could not be termed as Government Analyst in terms of S.35 of the Control of Narcotic Substances Act, 1997—Report of Bio Chemist though bore the signatures of the Chemical Examiner, but same could not be equated or termed as a report prepared by the Government Analyst—Said report would become admissible only after fulfilling of the pre-requisite laid down in S.36 of the Control of Narcotic Substances Act, 1997—Prosecution, having failed to establish the substantial compliance of S.36 of the Control of Narcotic Substances Act, 1997, rendered the report inadmissible—Statement of Chemical Examiner with regard to quantity of sample received by him, being discrepant, his report did not support the prosecution case on that aspect—Prosecution had failed to establish that the sample received in the Office of Chemical Examiner was actually related to the case—In the light of serious discrepancies, prosecution had failed to discharge its onus—Recovery proceedings conducted by the Investigating Officer, were not free from doubt—Case of prosecution was fraught with doubts, and for earning relief of acquittal, accused was not obliged to establish number of circumstances creating doubts, but even a single circumstance, creating a reasonable doubt in the prudent mind, was sufficient to extend the benefit of doubt to accused—Impugned judgment passed by the Trial Court, was set aside; accused was acquitted of the charge levelled against him and was released, in circumstances.

2016  PCrLJ  330   LAHORE-HIGH-COURT-LAHORE

RANA ABBAS VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51—Recovery of narcotics—Bail, refusal of—Heinous offence—Charas weighing 1650 grams was recovered from accused at the spot—Sufficient incriminating evidence/material existed on record to show presence and connectivity of accused with alleged crime—Accused was involved in yet another criminal case of similar nature—Offence with which accused was charged was heinous in its nature which squarely fell within the four corners of the prohibition as contemplated by S. 51 of Control of Narcotic Substances Act, 1997—High Court declined to exercise discretion in favour of accused—Bail was declined in circumstances.

2016  PCrLJ  275   LAHORE-HIGH-COURT-LAHORE

ABDUL HAFEEZ VS MAHMOOD AHMAD alias MOODA

Ss. 9(c) & 26—Possessing and trafficking narcotics—Acquittal of accused—Direction to register case against Police Official for vexatious entry, search, seizure or arrest of accused—Trial Court acquitted respondent/accused, but directed S.H.O. concerned to register a criminal case against Police Official concerned under S.26 of Control of Narcotic Substances Act, 1997, who was complainant in the case and allegedly recovered charas weighing 1250 grams from accused—Trial Court, while passing a direction for registration of case under S.26 of Control of Narcotic Substances Act, 1997, had failed to take into account the pre-requisite mentioned therein—In order to proceed against a person in terms of S.26 of the Control of Narcotic Substances Act, 1997 it had to be established on the record that accused was vexatiously and unnecessarily detained, searched or arrested in the offence—Impugned judgment of the Trial Court was completely silent on said aspect and did not term the search or arrest as vexatious and unnecessary—Court discussed the veracity of the other prosecution witnesses— Penal clause provided under S.26 of the Control of Narcotic Substances Act, 1997 could only be invoked, where it appeared that the seizure and arrest was vexatious or unnecessary, otherwise in each and every case of acquittal, it would be pressed by accused to proceed in terms of S. 26 against the complainant, which would certainly damage the scheme of the law; and the Police Officials would become reluctant to be complainant in the case—Allowing appeal, set aside impugned order passed by the Trial Court to the extent of issuance of direction for registration of case against appellant/Police Official under S.26 of Control of Narcotic Substances Act, 1997.

2016  PCrLJ  56   LAHORE-HIGH-COURT-LAHORE

HAROON RASHEED VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Case property, charas and garda charas, was duly exhibited in the evidence of two prosecution witnesses, which was taken into possession vide recovery memo—Both said witnesses remained consistent and firm on all the material aspects of the recovery—Said witnesses, had given each and every detail with regard to the recovery proceedings—Both said witnesses, were cross-examined at considerable length, but nothing could be extracted, which could adversely affect the prosecution case—Tenor of cross-examination reflected that the defence had not seriously challenged the recovery of charas and garda charas from the vehicle—Mainstay of the defence was that accused, being the driver, had no conscious knowledge about the concealment of recovered substance in the vehicle and that he was made scapegoat in place of actual culprits—Said contention of accused, was negated by the statement of SHO, who during his cross-examination had stated that he recovered that material from the car on the pointation of accused—Absence of mens rea, also did not find support from the manner in which the recovery was effected—Case of the prosecution right from the day one was that when the vehicle in question was signaled to stop, the driver accelerated the same, and after a chase, vehicle was stopped by the Patrolling Police—Prosecution, while examining prosecution witnesses, had successfully discharged the burden of proof—Case property was produced before the Trial Court and there was no serious challenge to the same from the other side—Report of Chemical Examiner, tendered in evidence, affirmed the nature of recovered substance being a narcotic drug, attracting the penal provisions contained in S.9 of the Control of Narcotic Substances Act, 1997—Accused who had taken a specific plea in his defence, was found to lead cogent and convincing evidence to prove the same, but, defence plea was self-contradictory—Accused, could not prove that case against him was registered due to any enmity—Defence plea was as crafted one, which was self-destructive—No evidence, was led by accused to prove that he was falsely involved in the present case—Substitution in criminal case was always a rare phenomenon and foisting a huge quantity, weighing 35 Kg and 625 grams, was also improbable, where there was no animosity of the Police with accused—Prosecution had produced all the material witnesses in order to bring home the guilt of accused—Non-examination of Inspector, was not fatal to the prosecution case, as the prosecution was not bound to examine each and every witness cited in the calendar with the report under S.173, Cr.P.C.—Prosecution had the prerogative to examine the witnesses as per its own choice as the evidentiary value of the witnesses was to be determined on the basis of quality and not quantity—Facts and circumstances, always vary from case to case—Accused being the driver, was in control of the vehicle—Recovery of charas and garda charas was effected from different compartments of the car, including the driving seat—From the available evidence, it could easily be gathered that accused was fully aware of the presence of charas and garda charas in the car, especially when he failed to rebut the overwhelming evidence led by prosecution—No bar existed under the law for Police Officer to be complainant as well as Investigating Officer at the same time— Where no prejudice was caused to accused, then functioning of complainant in his dual capacity was neither illegal nor unlawful— Contention that when on the basis of same set of evidence, co-accused were acquitted, accused could not be convicted, was repelled, as the acquitted accused were neither arrested at the spot nor their identification was established on the record—Case of other accused persons was entirely on different footings, whereas accused being the driver was arrested at the spot and led to the recovery—Even otherwise principle of “falsus in uno falsus in omnibus”, was not strictly applicable in criminal system of dispensation of justice as in the peculiar circumstances, the grain was to be sifted from the chaff—Prosecution had successfully proved its case against accused without any shadow of doubt by leading cogent and trustworthy evidence—Trial Court had duly appreciated the evidence available on record and rightly convicted accused by way of judgment under challenge—Trial Court had committed no illegality while convicting accused—Accused had failed to point out any illegality or material irregularity, requiring interference by High Court in exercise of appellate jurisdiction—While maintaining the conviction of accused recorded by the Trial Court, appeal was dismissed, in circumstances.

2016  MLD  2057   LAHORE-HIGH-COURT-LAHORE

HAQ NAWAZ VS State

1. 9(c)—Possession, import or export, trafficking or financing of trafficking of narcotics—Appreciation of evidence—Benefit of doubt—Nothing was available on record to show that the complainant/SHO had handed over the case property and parcels of samples sealed by him to the Investigation Officer—Investigation Officer had deposed during cross-examination that the complainant had delivered the parcels to him, which he handed over to the Moharrar—Statement of Moharrar under S.161, Cr.P.0 had not been recorded—Statement of the prosecution/police witnesses were contradictory with regard to the place where samples had been drawn and as to who had drawn the samples—Contradictions existed as to dispatch of the parcels of samples and deposit of the same in the office of Chemical Examiner— Time of raid and preparation of the complaint was also contradictory—Samples taken and deposited in the Chemical Examiner office could not be related with the samples taken from the possession of the accused—Statements of the prosecution witnesses were contradictory as to the scale used for weighing the recovered substance—Prosecution witnesses could not explain as to how 22 Maunds and 20 kilograms of Poast had been weighed in 2/3 minutes—All said aspects of the case created serious doubt as to the truthfulness of the prosecution version—High Court, giving benefit of doubts, acquitted the accused—Appeal against conviction was allowed accordingly.

2016  MLD  1825   LAHORE-HIGH-COURT-LAHORE

TAJ MUHAMMAD VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Prosecution, had not established safe custody of recovered substance—Contradictions existed in the case of prosecution as to deposit of sample and case property in the ‘Malkhana’—Inspector, after receiving case property and samples at the spot had not stated as to whom he had handed over the same—No evidence was available to connect the Chemical Examiner’s report, with the substance that was seized from the possession of accused—Conviction of accused on the basis of testimony of prosecution witness, which could not be said to be trustworthy was not safe—Trial Court was not justified in convicting accused without any legal evidence—Inherent illegality, having been noticed in the matter, conviction of accused, could not be upheld—Accused was acquitted of the charge, and he being on bail, his surety stood discharged.

2016  MLD  1755   LAHORE-HIGH-COURT-LAHORE

FATEH MUHAMMAD alias GOGAY KHAN VS State

1. 9(c)—Possession, import and export, trafficking and financing of the trafficking of narcotic drugs etc.—Appreciation of evidence—Quantum of narcotic substances, determination of—Principles—Presumption when separate samples not prepared from each packet of recovered narcotics—Sentence, reduction of—Trial court convicted the accused for eight kilograms of Charas, two kilograms of heroin and two kilograms of opium and sentenced him to undergo life imprisonment along with payment of fine—One kilogram of Charas had been purchased by the prosecution witness from the accused after becoming a fake customer and a separate sample of ten grams had been taken therefrom—Accused, after apprehension, had also led to the recovery of two kilograms of heroin and two kilograms of opium and separate samples of ten grams each had been taken from those narcotic substances—Seven kilograms of Charas was also allegedly recovered from the accused at time of his arrest, which was admittedly not in one packet and the same consisted in many packets—Prosecution/police witness had categorically deposed that he had mixed open and wrapped the seven kilogram of Charas and then taken sample of ten grams from the recovered bulk, so as to render the same into one packet for chemical analysis—In such situation of ambiguity, the only estimation which could be made was that one packet of Charas had been used by the complainant to segregate a sample of ten grams for transmitting the same for chemical analysis—Recovery of only two kilograms of Charas (one kilogram purchased from the accused by the police constable and one kilogram recovered from him at time of his arrest), two kilogram of heroin and two kilogram of opium, could safely be held to have been proved against the accused—High Court observed that where any narcotic substance was allegedly recovered while contained in different packets, wrappers or containers of any kind or in the shape of separate cakes, slabs or any other individual and separate physical form, then a separate sample was to be taken from every separate packet, wrapper or container and from every separate cake, slab or other form for chemical analysis, and if that was not done, then only that quantity of narcotic substance was to be considered against the accused person from which a sample had been taken and tested with a positive result—High Court, maintaining the conviction to the extent of two kilogram of Charas, two kilogram of heroin and two kilogram of opium, reduced the sentence to imprisonment for fourteen years and six months along with fine—Appeal was disposed of accordingly.

2016  MLD  1441   LAHORE-HIGH-COURT-LAHORE

SHAHID alias PAPPA VS State

1. 9(b)—Possessing and trafficking narcotics—Appreciation of evidence—Benefit of doubt—Prosecution story appeared to be doubtful, as clear contradictions existed regarding date of recovery of charas, its handing over to the Investigating Officer, its handing over to the Moharrar by the Investigating Officer; and its further handing over to witness for its onward transmission to the office of Chemical Examiner—Un-scaled site plan was prepared—All those facts, not only created doubt about the occurrence, but it was fatal to prosecution version—Burden always remained on prosecution to prove affirmatively, right from the arrest of accused, seizure of recovered contraband till it reached the office of Chemical Examiner—All facts must be in line, but the facts of the present case created doubt on the case of the prosecution and benefit of reasonable doubt, would go to accused—Impugned order, was set aside extending benefit of doubt to the accused—Accused being on bail, surety bonds furnished by accused would stand discharged, in circumstances.

2016  MLD  1002   LAHORE-HIGH-COURT-LAHORE

ASGHAR ABBAS VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Conviction on the basis of second report of Chemical Examiner—Scope—Chemical Examiner reported that the result of the test performed on the sample provided, did not show conclusive result and second sample was required—Second sample was prepared and same was sent to the Chemical Examiner and report was obtained which was positive—Prosecution had not established as to whether second sample was obtained from the material recovered from the possession of the accused—Nothing was on record as to how and in whose presence second sample was prepared—Report of Chemical Examiner could not be made base for conviction of accused in circumstances—Material contradictions existed on record—Prosecution had not been able to prove its case beyond any reasonable doubt—Impugned judgment was set aside and accused was acquitted from the charge—Surety of the accused was discharged from liability—Appeal was allowed in circumstances.

2016  MLD  621   LAHORE-HIGH-COURT-LAHORE

ALI ASGHAR VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and controlling narcotics—Bail, grant of—No particular part of the allegedly recovered substance (bhang), had been described—Report of Chemical Examiner was still awaited—Nature and kind of alleged recovered substance, could not be confirmed—Question as to whether the offence would fall under provision of Control of Narcotic Substances Act, 1997 or the Prohibition (Enforcement of Hadd) Order, 1979 would be resolved during the trial—Accused was no more required for any further investigation, and nothing was to be recovered from him—Keeping accused, confined in the jail, in circumstances, would serve no useful purpose—Accused was admitted to bail.

2016  MLD  274   LAHORE-HIGH-COURT-LAHORE

NASIR WAHEED VS MINISTRY OF INTERIOR through Secretary

1. 2(3)(c)—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Constitution of Pakistan, Art. 199—Constitutional petition—Conviction under S.9(b) of Control of Narcotic Substances Act, 1997—Insertion of name in the Exit Control List—Ingredients—Petitioner was convicted under S.9(b) of Control of Narcotic Substances Act, 1997 for having heroin weighing 135-grams—Passport of petitioner was held by the Government on the basis of said conviction—Validity—Petitioner, after serving out his entire sentence went abroad—No proceedings to include the name of petitioner in the Exit Control List was initiated during such period—Government had inserted the name of petitioner in the Exit Control List after lapse of considerable time of his release—No adverse material qua the activities of the petitioner was on record—Petitioner never remained member of any international gang or group of smugglers in respect of narcotics—Petitioner had to be convicted by competent court of law for insertion of his name in the Exit Control List—Petitioner had served out entire sentence awarded to him by the court of law—Government might insert the name of person in the Exit Control List who was convicted for drug trafficking—Inserting name of petitioner in Exit Control List for 5-years was harsh punishment—Period already undergone by the petitioner would meet the ends of justice—Government was directed to exclude/remove the name of petitioner from Exit Control List forthwith and hand over travelling documents to him immediately—Constitutional petition was allowed in circumstances.

2016  YLRN  123   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ASJAD VS State

S.9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Benefit of doubt—Matter was reported after four hours, and recovered articles and contraband/narcotics, were kept by a Police Official for four hours without giving any plausible explanation which had created doubt in the prosecution case, as in the given circumstances, it was to be seen that whether a sample from the recovered pads was taken and sent to the Office of Chemical Examiner for report—Complaint, recovery memo as well as examination-in-chief of Police Official revealed that brownish colour heroin was recovered from possession of accused, whereas from the contents of report of Chemical Examiner, sample received by the office of Chemical Examiner, was of “off white colour”—Alleged recovery of contraband was doubtful, as alleged heroin, was stated to be in pads as per complaint, recovery memo and statements of prosecution witnesses, but the case property produced before the court was in the shape of two pouches—Prosecution case was highly doubtful and its story appeared to be unbelievable and evidence of Police Officials was not confidence inspiring—Prosecution had failed to prove that entire proceedings were conducted under the supervision of Deputy Director—No reliance could be placed upon the evidence of the Police Officials without independent piece of corroboration—Single circumstance throwing doubt in the prosecution case was sufficient to discard the prosecution case—Prosecution case being highly doubtful about the alleged recovery, benefit of doubt was extended to accused—Prosecution having failed to prove its case against accused, accused was acquitted of the charge and was released, in circumstances.

2016  YLRN  74   LAHORE-HIGH-COURT-LAHORE

LAL MUHAMMAD VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking narcotics—Bail, grant of—Charas, allegedly recovered from accused was 1050 grams; that was slightly higher in weight mentioned under Cl.(b) of S.9 of Control of Narcotic Substances Act, 1997—Said weight, might have occurred due to weighing of the substance along with the shopping bag/casing, wherein it was wrapped and kept, as nothing was available on the record to suggest that weighing was made without the said packing material—Accused was behind the bars since his arrest on 21-4-2015, and he was no more required for the purpose of investigation—Incarceration of accused, was of no consequence to prosecution case—Investigating Officer confirmed that accused had no previous criminal record of such like cases—Accused, was admitted to bail, in circumstances.

2016  PCrLJN  81   LAHORE-HIGH-COURT-LAHORE

GHULAM ABBAS VS State

Ss. 9(c) & 29— Possessing and trafficking narcotics— Appreciation of evidence—Nine packets were recovered which weighed 10 Kilograms of opium—All the three accused persons were apprehended at the spot—No material contradiction appeared in the statements of the prosecution witnesses, even after a lengthy cross-examination—Nothing was on record, whether any private person was available at the spot, but not joined the investigation—Contention that there was violation of S. 103, Cr.P.C., had no force, since in narcotic cases joining a private witness was not necessary—Normally, a private person, did not join in the investigation to become a witness—Further, in such an early morning, it was not possible that any private person would be available to be joined in the recovery proceedings; it was immaterial that no witness from the public was associated—Police Officials were as good witnesses as other people—Prosecution version, was further corroborated from the positive report of Chemical Examiner—Substance, was recovered from the wagon in which accused were boarding, and they were arrested from that wagon—Accused, in circumstances, were rightly held guilty of the offence—Recovery of substance, in circumstances, was fully established—Possession of substances, could be joint from two or more accused persons; no condition or qualification existed that substance should be recovered from exclusive possession of a person—Since, all the three accused persons were boarded on the same vehicle, and no other person boarded on that vehicle, accused or driver of the vehicle failed to produce any record that vehicle was a public transport—According to S.29 of the Control of Narcotic Substances Act, 1997, once prosecution established the recovery beyond a reasonable doubt, then the burden was shifted to accused—Such a huge quantity of narcotic, could not be planted—All the three appeals were dismissed having no force—Since sentence of accused persons, was suspended by High Court, they were directed to be taken into custody and sent to jail to serve out the remaining portion of their sentence.

2016  PLD  506   KARACHI-HIGH-COURT-SINDH

The STATE through Director, Intelligence and Investigation (Customs and Excise) VS Haji NABI BUX

Ss. 9(c), 48 & 72—Customs Act (IV of 1969), S.185-F—Criminal Procedure Code (V of 1898), S.417 (2A)—Notification SRO 486(1)/2007, dated 9-6-2007—Appeal against acquittal—Maintain-ability—Locus standi—Director of Intelligence—Accused persons were alleged to have transported poppy seeds for which Customs officials filed case under the provisions of Control of Narcotic Substances Act, 1997— Both the accused were acquitted by Trial Court and Director Intelligence of Customs filed appeal against acquittal—Validity—It might be that appellant being Director Intelligence and Investigation Federal Board of Revenue, in his view was a person aggrieved by the order of acquittal so as to fall within the purview of S.417 (2A), Cr.P.C.—It was the Federal Board of Revenue that lodged FIR, filed Challan and prosecuted the case and as such was the most concerned with the outcome of the case—When acquittal came in the Director Intelligence had every right to feel aggrieved and dissatisfied with acquittal order which related to a customs case although triable under Control of Narcotic Substances Act, 1997—Appellant could only file appeal in his capacity as Director under S.185-F of Customs Act, 1969, read with notification SRO 486(I)/2007, dated 9-6-2007, but was not entitled to file an appeal through or on behalf of the State which could only have been done by a duly authorized and instructed law officer—Director Intelligence and Investigation had no lawful authority to file appeal through the State against acquittal of accused persons—Appeal was dismissed in circumstances.

2016  YLR  1829   KARACHI-HIGH-COURT-SINDH

MUMTAZ ALI MACHHI VS State

Ss.9(b) & 48—Possession of narcotics–Appreciation of evidence—Benefit of doubt—Conflicting opinions of two courts in similar matter—Contradictory statements by prosecution—Prosecution witness at one occasion stated that recovered “charas” was in one piece and 250 grams were separated and sent to the chemical examiner and on another occasion he stated that “charas” was in three pieces—Another prosecution witness stated that 250 grams was separated from one piece of charas and was sent to chemical examiner, on the other hand report of chemical examiner stated that one sealed parcel containing three brown black pieces of charas was sent for examination—Accused filed evidence in a case under law of Arms registered by the same complainant against accused for the same incident—Held, that when in respect of the same incident there were two conflicting opinions of two courts in respect of same document, a doubt was created—Slightest doubt in the prosecution case was sufficient to acquit the accused, even if trial and judgment in other case was to be totally ignored even then, in the present case, the prosecution case was doubtful, therefore, appellant was entitled to benefit of doubt and was acquitted.

2016  YLR  1618   KARACHI-HIGH-COURT-SINDH

GHULAM NASAR KHAN VS State

Ss. 9(c) & 25—Possessing and trafficking narcotics—Appreciation of evidence—Both the prosecution witnesses deposed in same line, and supported case regarding recovery of 85 kilograms of charas from the truck driven by accused—Evidence of both the witnesses was consistent on material points—Despite lengthy cross-examination by defence counsel, nothing could be achieved in favour of accused—Time of recovery being 5.00 a.m., at such early time, availability of the private persons at National Highway, could not be expected—Section 25 of Control of Narcotic Substances Act, 1997, had excluded applicability of S.103, Cr.P.C., in narcotic cases—Non-association of the private mashir at the time of recovery of charas from the truck driven by accused, would neither cause any dent in the prosecution case, nor vitiate the proceedings—Accused being driver of the truck, was incharge of the same, was in knowledge of the contents and articles lying therein—Accused was responsible for transportation of charas, in circumstances—Acquittal of co-accused would not be helpful to accused, as said co-accused was neither owner, nor co-driver, and neither cleaner of the truck, but was only sitting with accused—Responsibility of said person was not at par with the accused—Complainant, had admitted that during investigation, co-accused was found innocent, and was released under S.169, Cr.P.C.—Prosecution having proved its case against accused beyond any shadow of doubt, impugned judgment did not call for any interference and was maintained, in circumstances.

2016  YLR  1526   KARACHI-HIGH-COURT-SINDH

The STATE through Assistant Collector of Customs VS GHULAM MUSTAFA

73. 497(5)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking narcotics—Bail, cancellation of—Allegation against accused was that he having joined hands with some of Security Officials of Airport, planned to transport huge quantity of heroin powder (73.5 Kg.) outside the country—Such was not an ordinary offence, but it had been the consequences of such offence, which remained compelling the legislature to introduce different enactments, including Control of Narcotic Substances Act, 1997—Drug traffickers and smugglers, adopted various methods to transfer, traffic and smuggle illegal articles from one country to another—Criteria and yardstick for examining the cases of normal possession or transportation of narcotic drugs, should be different from the cases of trafficking and smuggling of narcotic drugs—Attempted transport of narcotics in the case was a heroin powder, which, because of its consequences, had dangerous effect upon the society—Since it was also the “weight”, which was a determining factor in such like cases, towards punishment, a person accused of trafficking huge quantity of heroin powder (73.5 Kg.) was not entitled for concession of bail—Trial Court did not touch said aspect of the matter, but in a mechanical manner, ordered for release of accused with reference to “non-objection” of Special Prosecutor for release of accused—Mere ‘no objection’ of the Special Prosecutor, or State Counsel, would not validate release of an accused of non-bailable offence; but it should always be the satisfaction of the court, based on judicial reasoning towards relevant parameter for release of such accused—Courts should not become tool for delaying tactics to allow accused in custody to claim bail on statutory ground of delay, especially in cases, which related to the hardened criminals who had net work for commission of offences—Impugned order of the Trial Court, whereby accused was granted bail, being perverse, illegal and not maintainable under the law, was set aside in circumstances.

2016  YLR  1354   KARACHI-HIGH-COURT-SINDH

MOHAN LAL VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.51, 7, 9(c), 14 & 15—Possession of narcotics—Bail, refusal of—Contention of accused persons was that there was no evidence against them except statements of co-accused, which were inadmissible and co-accused had not mentioned the names of present accused in their statements—Prosecution’s plea was that accused persons were owners of a factory and cotton bales from which 68 kilograms of heroin was recovered were loaded on trawler from factory of accused—Held, that provision contemplated by S.51 of Control of Narcotic Substances Act, 1997 could not be ignored at the time of granting of bail—In the present case, a huge quantity of narcotic had been recovered, therefore accused were not entitled to bail—Bail was denied, accordingly.

2016  YLR  1081   KARACHI-HIGH-COURT-SINDH

YAR MUHAMMAD VS State

Ss. 9(c) & 29—Recovery of narcotic substance—Appreciation of evidence—Principle of shifting of onus—Heroin weighing 43 kilograms and opium weighing 23 kilograms were recovered from the secret cavities of car in which accused persons were travelling—Trial Court convicted both the accused persons and sentenced them to imprisonment for life—Validity—Evidence led by prosecution was without any material variation or lapses—Memo of recovery and FIR were fully corroborated and resultantly proved to the satisfaction of Trial Court—Defense of accused persons was dependent upon mere denial of charge, case as well as evidence and no defense evidence was adduced by accused persons—Initial burden resting on prosecution stood discharged on its part and accused persons failed to rebut the same as provided under S. 29 of Control of Narcotic Substances Act, 1997 and also did not lead defense evidence establishing their innocence in the matter—Accused persons were first offender and bread earner members of their families who had served major portion of their sentence—High Court maintained conviction of the accused persons but reduced the sentence of imprisonment to one already undergone, which was 20 years and 8 months—Appeal was dismissed accordingly.

2016  YLR  388   KARACHI-HIGH-COURT-SINDH

NOOR AHMED VS State

S.426—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking of narcotics—Suspension of sentence—Accused was charged under S.9(c) of Control of Narcotic Substances Act, 1997 for the recovery of 1250 grams charas—Trial Court convicted accused and sentenced him for 4 years and 6 months, with fine of Rs.20,000—Sentence awarded to accused, was short one, and disposal of main appeal would take some time as paper book had not been prepared by the office—Considering the quantum of backlog of the case, there was no probability for early hearing of the appeal—Sentence awarded to accused was suspended during pendency of main appeal, and accused was admitted to bail, in circumstances.

2016  YLR  359   KARACHI-HIGH-COURT-SINDH

PATHAN KHOKHAR VS State

Ss. 497(2) & 103—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25—Control of Narcotic Substances Act (Government Analysts) Rules 2001, Rr. 4 & 5—Possession of narcotic drugs, import and export of narcotic drugs, trafficking or financing trafficking of narcotic drugs—Non-associating of public witnesses while recovery—Effect—Statement of police official—Admissibility—Sending of narcotic substance for examination—Principles—False implication—Proof—Two thousand and fifty grams of charas was alleged to have been recovered from accused—Bail was declined by Trial Court—Applicant contended that allegedly recovered substance was sent for chemical examination with delay of nine days, which had made prosecution story doubtful, and that despite prior information complainant had failed to associate private person to act as Mashir at time of alleged recovery—Validity—Applicant was apprehended by complainant (official) during patrolling and Charas was recovered from his possession in presence of police officials—Provisions of S. 103, Cr.P.C had been excluded by virtue of S. 25 of Control of Narcotic Substances Act, 1997—Non-associating of public witnesses at time of recovery of narcotics was of no consequence—Police officials were good witnesses and their statement could not be discarded if any kind of enmity or ill-will was not brought on record—Rules 4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001, had imposed no bar on investigation officer from sending sample beyond seventy-two hours of seizure of narcotic substance—Said rules were directory in nature and not mandatory—Sending of sample beyond stipulated period in said rules, in absence of any allegation of tampering, would not frustrate entire case of prosecution—Complainant had failed to allege any kind of animosity against complainant for his false involvement nor was any complaint made to high-ups of police in that regard—Entire recovered substance was sent to Chemical Examiner and as per report, entire substance was charas—Applicant failed to make case for grant of bail—Bail petition was dismissed accordingly.

2016  YLR  85   KARACHI-HIGH-COURT-SINDH

KHAN BUX VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Benefit of doubt—Evidence of complainant/Police Inspector and another Police Officer, regarding weight and recovery of narcotics, was contradictory, which was enough for extending benefit of doubt to accused persons—Complainant/ Police Inspector, had failed to associate private person to act as mashir of arrest and recovery, though some houses were near the place of recovery and arrest—Complainant, despite having sufficient time to call the private persons for making them as mashir in the case, failed to do so—Such omission had not been explained by prosecution to the satisfaction of the court—Evidence of Police Official though was as good as other witnesses, but, when availability of private persons, was not denied from the place of incident, and the same was withheld, presumption would be existed that the prosecution had some sinister motive behind it in not producing the evidence—Best independent and natural piece of evidence in the shape of cart pusher purchasing old scrap, was available; charas was weighed by his scale and he resided near the place of incident, he was not examined by the prosecution—No reason had been assigned for non-examination of such an important and best piece of evidence, which had created reasonable doubt about the prosecution case which led to adverse inference against the prosecution—Benefit of doubt, created by many discrepancies in the case, must go to accused persons—Prosecution having failed to prove the case against accused persons beyond any reasonable doubt, impugned judgment passed by the Trial Court against accused persons, was set aside and they were acquitted of the charge, in circumstances.

2016  PLD  378   KARACHI-HIGH-COURT-SINDH

MOMIN KHAN VS State

1. 497—-Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8 & 9 (b)—Possession, import or export, trafficking or financing the trafficking of narcotic drugs etc.—Bail, refusal of—Bail could be declined in case of recovery of 990 grams of Charas—One thousand grams of Charas from one accused and one hundred grams of Charas along with ten grams of heroin were alleged to have been recovered from the other accused—Narcotics although had been recovered from the accused persons only in presence of Mashirs/police witnesses, but no enmity had been shown by the accused with the Anti-Narcotics Force for their false implication—Accused were narcotic traffickers and had been apprehended from the street while being in possession of the narcotics—Offence in question, being heinous in nature, considered as offence against the society at large; therefore, even if the offence did not fall within the prohibitory clause of S. 497, Cr.P.C, the accused were not entitled to the grant of bail—Bail could be declined even in case where the recovered Charas was 990 grams—Bail application was dismissed accordingly.

2016  PCrLJ  1860   KARACHI-HIGH-COURT-SINDH

GULSHAN SHAIKH VS State

Ss. 9(c), 9(b) & 29—Criminal Procedure Code (V of 1898), Ss. 103 & 342—Possession, import or export, trafficking or financing of narcotic substance— Appreciation of evidence—Sentence, reduction in—Accused had been arrested and five kilogram of Charas was recovered from him in presence of Mashirs—Prosecution witness had supported the prosecution case—Report of Chemical Examiner had confirmed that the recovered substance was Charas—Accused could not bring any material contradictions between the prosecution witnesses or their ill-will or enmity—Delay in sending the incriminating article to the Chemical Examiner could not be treated as fatal and minor lapses in investigation did not affect the validity of the trial, particularly when the defence had not cross-examined the prosecution witnesses in respect of the same—Accused had not taken the objection as to non-production of original departure and arrival entries and overwriting over the arrival entry at the time when the attested copies of the entries had been exhibited—Overwriting as to arrival time in the entry was not very much material, as the same would be on account of inadvertence and the same was in consonance with the time mentioned in the FIR, and as such the same did not create doubt in the prosecution case—Under S. 29 of Control of Narcotic Substances Act, 1997, there was presumption of possession of narcotic substance against the accused, unless the same was rebutted by way of major contradictions, material irregularity or illegality, mala fide and proof of enmity—Present case, therefore, stood proved against the accused to the hilt leaving no room to doubt the veracity of the statements of the prosecution witnesses, who had not been questioned about their ill-will or animus with the accused for his false involvement in the matter—Accused had only denied the prosecution allegation in his statement under S. 342, Cr.P.C. and had not been able to disprove anything in respect of his defence or mala fide on part of the prosecution—Simple denial of the charge and pleading innocence, without any cogent and convincing evidence did not entitle the accused for his acquittal—Five packets of Charas had been allegedly recovered containing Charas of one kilogram each, out of which one consolidated sample had been taken, which weighed one kilogram—In absence of separate sample from the five each packets of Charas, only one kilogram of Charas was to be considered to have been recovered from the accused, and he could have been convicted and punished for the same accordingly—High Court, converting the conviction under S. 9(c) Control of Narcotic Substances Act, 1997 into conviction under S. 9(b) of the Act, reduced the sentence of imprisonment for five years to imprisonment for one year and nine months along with fine—Appeal against conviction was disposed of accordingly.

2016  PCrLJ  1598   KARACHI-HIGH-COURT-SINDH

ABDUL KARIM BROHI VS State

1. 9(c)—Possession of narcotic drugs—Appreciation of evidence—Accused was arrested by the Excise police while he was trafficking eighty kilograms of Charas through truck—Accused could not point out any material discrepancy or contradiction in statements of the prosecution witnesses—Excise Inspector had fully supported the FIR version and recovery of Charas from the truck of the accused while he was driving the same—No enmity, ill-will or grudge had been alleged or proved against the prosecution witnesses to falsely implicate the accused; question of foisting the Charas was, therefore, out of consideration—Fact that the prosecution witnesses belonged to Excise police, alone could not be considered as valid reason to discard their evidence, especially when no mala fides or ulterior motives had been proved against them—Accused took the defence that he had come to the place of arrest for his medical treatment, but he had failed to produce any proof in that regard—Violation of S. 103, Cr.P.C. had no consequences in view of the exclusion of said provision by S. 25 of Control of Narcotic Substances Act, 1997—Accused was responsible for recovery of the entire recovered narcotics, as the report regarding samples taken out of the substance was in positive—In case of transportation or possession of narcotics, technicalities of procedural nature or otherwise should have been overlooked in the larger interest of the country—Approach of court should be dynamic and pragmatic in approaching true facts of the case and drawing correct and rational inferences and conclusions while deciding such type of cases, if the case stood otherwise proved—Prosecution version appeared to be more genuine and based on common sense—Appeal was dismissed accordingly.

2016  PCrLJ  1075   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AKRAM VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Prohibition of possession of narcotic drugs—Bail, grant of—Borderline case under Ss. 9(b) or 9(c) of Control of Narcotic Substances Act, 1997—Further inquiry—Private witnesses of recovery and arrest not associated—Fifteen kilograms of Charas was alleged to have been recovered from possession of the accused—Where recovery of narcotic substance did not exceed the limit between 900 to 1500 grams, the case being borderline between S. 9(b) & 9(c) of Control of Narcotic Substances Act, 1997 the accused was to be admitted to bail—No private witness had been associated and no private person had signed the Mashirnama of arrest and recovery—Accused was not previously involved in case of similar nature—Prosecution witnesses, being official witnesses, no likelihood to tamper with the prosecution case existed if the accused was released on bail—Challan had already been submitted and the accused was no more required for further investigation—Prosecution had not examined even a single witness for one year after submission of the Challan—Case of accused was also one of further inquiry—Bail application was allowed accordingly.

2016  PCrLJ  1047   KARACHI-HIGH-COURT-SINDH

ATTIQULLAH VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Sixteen bags of heroin each containing 1 Kg, and Twenty bags of charas each containing 1 Kg were recovered respectively from secret cavity of oil tank of the truck driven by accused—Complainant, separated sixteen samples of heroin and twenty samples of charas from each bag, each weighing 100 grams; and sealed those for Chemical Analyser—Remaining property was sealed separately, and was produced before the court at the time of examination of prosecution witnesses—Report of Chemical Analyser was positive—Complainant/ Excise Inspector and Mashir Excise Constable, both prosecution witnesses, had fully supported the prosecution case—Both said accused persons, and complainant and mashir constable, were residents of different Provinces—No enmity was alleged between them, which could prompt them to falsely implicate accused persons—Both said witnesses supported each other on material points; and there was no major contradiction in their evidence—Both accused persons were in exclusive possession of the truck, wherefrom the heroin and charas were recovered—Possession of the contraband items, was proved beyond any doubt—Both accused were equally responsible for possessing the narcotics recovered from the secret cavity of the truck—Prosecution having proved its case against accused persons beyond any shadow of doubt, impugned judgment of the Trial Court, did not suffer from any infirmity, and same was maintained—Appeal being devoid of merits, was dismissed, in circumstances.

2016  PCrLJ  975   KARACHI-HIGH-COURT-SINDH

Syed HYDER ALI SHAH VS State

Ss. 497 & 103—Control of Narcotic Substances (XXV of 1997), Ss. 6, 7, 8 & 9—Bail, grant of—Possession, import and export trafficking or financing trafficking of narcotic drugs—Search to be made in presence of witnesses—Bail, grant of—Independent mashir/witnesses, absence of— Further enquiry—Consistency, rule of—Applicability—Recovery, mode of—Two recovered envelopes of heroin were not weighed separately—Effect—Duty of Chemical Examiner—Benefit of doubt at bail stage—Scope—Enmity, existence of—Complainant had prior information about the accused having narcotic substances in their possession for sale, but he had neither associated any independent mashir/witness nor made any serious efforts to get any public person to act as mashir—Private persons should have been given preference if they were available at the spot, rather than personnel, to maintain transparency of the recovery—Heroin powder was recovered from two envelopes, but the same was not weighed on the spot, and the complainant had assessed its total weight to be 1300 grams tentatively—Chemical Examiner had also not weighed both envelopes separately mentioning their net weight, but he had mentioned total weight of heroin powder lying in two envelopes as 1300 grams—Chemical Examiner was duty bound to mention net weight of heroin powder lying in the two envelopes separately after deducting weight of both envelops—Net weight of the heroin powder might become more or less 1000 grams after deducting weight of both envelopes—Co-accused had already filed harassment petition against the complainant, under which court had directed the complainant not to cause any kind of harassment to the accused—Prosecution could not satisfy as to why the complainant had registered second FIR against present accused for the same narcotic, which had reflected the personal grudge of the complainant—Co-accused had already granted bail—No criminal case was already registered against the accused—Accused was regular university student and a character certificate had also been issued in his favour—Challan had already been submitted and the accused was no more required—No apprehension of tampering with prosecution evidence existed, as prosecution witnesses were police officials—Bail application was accepted accordingly.

2016  PCrLJ  859   KARACHI-HIGH-COURT-SINDH

The STATE VS MUHAMMAD SABIR alias SABIR

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), Ss. 417 & 245(1)—Prohibition of possession, import and export, trafficking or financing trafficking of narcotic drugs—Appeal against acquittal—Appreciation of evidence—Mode of making search and arrest—Requirements—False implication—Benefit of doubt—Charas weighing 3000 grams was alleged to have been recovered from possession of the accused—Trial court, extending the benefit of doubt under S. 245(1), Cr.P.C., acquitted the accused—Prosecution witnesses, the complainant and Mashir, had given contradictory versions of the alleged incident and their testimony differed from each other on material point—Complainant had stated that the accused had been arrested at 4:00 pm in broad day light near a hospital, but he had not arranged or called any private person from the hospital to cite him as witness of arrest of the accused and recovery of the Charas from his possession—Section 25 of Control of Narcotic Substances Act, 1997 neither authorized the complainant/police officer to exclude independent witness nor did the same override the principle of producing the best available evidence—No reasons had been given for not associating the private independent witnesses, nor any effort appeared to have been made in that regard—Said circumstances had created doubt as to the conduct of fair and independent enquiry into the matter—False implication of the accused in the present case could not be ruled out, particularly when the complainant himself had registered the complaint and investigated the same, and both the prosecution witnesses/Mashirs were police officials—Prosecution had failed to produce any material evidence against the accused beyond any shadow of doubt, and the accused had proved himself to be innocent—Appeal against acquittal was, dismissed.

2016  PCrLJ  831   KARACHI-HIGH-COURT-SINDH

WAJID alias WAJI VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Prohibition of possession, import and export, trafficking or financing trafficking of narcotic drugs—Bail, grant of—Further inquiry—Only 1500 grams of Charas was allegedly recovered from the accused—Present case appeared to be a borderline case, which attracted the provisions of Ss. 9(b) & 9(c) of Control of Narcotic Substances Act, 1997, and the benefit of such discrepancy was, therefore, to be extended to the accused—No private witness had been associated with, and no private person had signed the Mashirnama of arrest and recovery—Prosecution had not claimed that the accused was previously involved in the same nature of cases—State counsel had no objection if the bail was granted to the accused—Case of accused was that of further inquiry in terms of S. 497(2), Cr.P.C.—Bail application was allowed accordingly.

2016  PCrLJ  574   KARACHI-HIGH-COURT-SINDH

GHULAM MUHAMMAD VS State

Ss. 497(2) & 103—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 25 & 51—Recovery of narcotic substance—Bail, refusal of—Charas weighing 43 kilograms was recovered from car in which accused was travelling—When case against accused was of further inquiry, the embargo contained in S. 497, Cr.P.C., barring bail to accused did not apply—On the same analogy bar contained in S. 51 of Control of Narcotic Substances Act, 1997, was not applicable in a case of possession and recovery of narcotics if evidence in possession of prosecution prima facie did not make out a case punishable with death—Provision of S. 25 of Control of Narcotic Substances Act, 1997, excluded application of S. 103, Cr.P.C. to searches made under Control of Narcotic Substances Act, 1997—In presence of a special law regarding search, general provisions would not prevail—Accused did not deny recovery of Charas from the car in possession of accused but pleaded that the same was recovered from the luggage of co-accused/passengers, such plea could only be determined at trial—Case of accused did not call for further inquiry as envisaged under S. 497(2), Cr.P.C.—Bail application was dismissed in circumstances.

2016  PCrLJ  508   KARACHI-HIGH-COURT-SINDH

MUHAMMAD YOUSAF VS State

Ss. 9(c), 6, 7 & 8—Possession, import or export, trafficking or financing trafficking of narcotic drugs etc.—Appreciation of evidence—False implication/enmity, plea of—Two contradictory versions were advanced in defence plea—Twelve hundred kilograms of Charas was alleged to have been recovered from accused, while he was transporting the same through a trailer—Trial court convicted the accused and sentenced him to undergo imprisonment for life along with payment of fine—Complainant and Mashirs/recovery witnesses had corroborated their evidence with each other as well as to the recovery— Accused had not shattered the said corroborative evidence—Chemical Examiner had certified the sample of the recovered Charas—Accused, while taking the plea of false implication, had advanced two (contradictory) versions in his defence, which were not supported by any documentary proof—Accused could not establish that the complainant, who belonged to other Province, had any enmity or motive to falsely implicate him—No reason existed to disbelieve the recovery of huge quantity of Charas—Prosecution had brought reliable, trustworthy and unimpeachable evidence without any discrepancy or cloud over the veracity of the prosecution story—Prosecution, thus, had proved the case beyond any shadow of doubt—Appeal against conviction was dismissed accordingly.

2016  PCrLJ  432   KARACHI-HIGH-COURT-SINDH

MUHAMMAD SALEH MALLAH VS State

1. 9(b)—Possession of narcotics—Appreciation of evidence—Contradictory statements—Benefit of doubt—Complainant stated that eight pieces of “charas”, weighing 190 grams were recovered from the accused, out of which a single piece of 10 grams was sent for chemical examination and mashirnama was prepared by him in sunlight—During cross-examination complainant stated that he sent two pieces of charas for examination, and one of the mashir stated that the mashirnama was prepared by using the light from the headlight of the Police vehicle—Held, that “charas” was sent for chemical examination with a delay of 8 days and no plausible explanation was presented for such delay and in such circumstances no sanctity could be attached to a positive report from the chemical examiner—Charas was not kept at a safe place, chance of tampering/foisting of the case property could not be ruled out—Accused was arrested from the road but no private person of the locality was associated as mashir during the raid and if the private persons were involved during the raid, then chances/plea of false implication could have been negated—High Court observed that court should ensure that proceedings of recovery and seizure in narcotics cases should be made in transparent manner so as to protect citizens from high handedness of Police and to save them from the agony of uncalled for trials—Material contradictions existed in the prosecution case, and prosecution had failed to establish its case beyond reasonable doubt, therefore, accused was acquitted and appeal was allowed accordingly.

2016  PCrLJ  265   KARACHI-HIGH-COURT-SINDH

FAROOQ KHAN VS State

Ss. 6, 9(c) & 25—Qanun-e-Shahadat (10 of 1984), Art. 40—Possessing and trafficking of narcotics—Appreciation of evidence—Sentence, reduction in—All three prosecution witnesses, who were Police Officials, had fully supported the prosecution case—Said witnesses, had been cross-examined at considerable length, but no discrepancy causing reasonable doubt in the veracity of prosecution case was found—Evidence of prosecution witnesses, over the recovery of narcotic substance from the house in question had not been shattered to such extent that conviction and sentence awarded to accused, could be declared illegal and set aside—Minor variations, though did occur in the evidence of witnesses, but no contradictions worth giving benefit of reasonable doubt to accused existed—Plea of false implication of accused at the instance of DSP, against whom accused had moved application for registration of FIRs, could not be given much weight, as said DSP was neither the witness, nor had conducted any investigation in the case—Said DSP had not played any part to contrive things against accused—Nothing concrete to suggest false implication of accused at the hands of said DSP, was found on record—SHO concerned had submitted criminal record of showing as many as 20 criminal cases of different kinds registered at various Police Stations against accused and his brothers—Objection of accused over the territorial jurisdiction of Police Station to register the case against accused, was also without any merits—Accused was aware of the nature, and exact time and date of incident reported against him—Stringent compliance of S.103, Cr.P.C., had been dispensed with in terms of S.25 of Control of Narcotic Substances Act, 1997—People fearing for their life, did not come forward to give evidence against drug barons—Information disclosed by accused led to discovery of narcotic substance, was relevant as per scheme of Art.40 of Qanun-e-Shahadat, 1984 and could be relied upon—Prosecution case was about recovery of 7 packets of charas, each having rods and each weighing 1250 grams—Out of those 7 packets, one packet individually consisting 100 rods, was separated, sealed and subsequently sent for examination to Chemical Expert, the report of which had come in positive—Regarding 6 remaining packets, the prosecution could not bring any evidence to establish the same to be narcotic substance punishable under Control of Narcotic Substances Act, 1997—Prosecution was bound to take sample from every packet for examination to prove it to be narcotic substance—Accused, was liable for possessing 1250 grams of charas and 1000 grams of heroin—Conviction and sentence for possessing charas exceeding 1 Kilogram and upto 2 Kilograms was R.I. for 4 years, 6 months, and fine of Rs.20,000 in default S.I. for 6 months, and for possessing heroin exceeding 600 grams and upto 1000 grams, the sentence of R.I. for one year, 10 months and fine of Rs. 150,000 in default S.I. for 5 months—Same punishment for accused, would meet the ends of justice—Accused had served sentence of 6 years, 11 months and 14 days, and had earned remission of 2 years, 1 month and 19 days—Conviction and sentence of 10 years and fine of Rs.500,000 awarded to accused, was modified to the period already undergone by him, in circumstances.

2016  PCrLJ  47   KARACHI-HIGH-COURT-SINDH

ALI GUL alias MUJAHID VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Benefit of doubt—Case of co-accused, was identical and was on the same footing as that of acquitted co-accused—Prosecution, had not produced any material to prove co-accused as hardened criminal to hold him dangerous—Prosecution, was justified in recording no objection for granting same relief to co-accused as was given to acquitted co-accused—Appeal of the co-accused was allowed and impugned judgment to his extent, was set aside, he was acquitted from the charge after extending him benefit of doubt.

2016  PCrLJ  47   KARACHI-HIGH-COURT-SINDH

ALI GUL alias MUJAHID VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Possessing and trafficking narcotics—Appreciation of evidence—Both, complainant and Mashir, who were Police Officials, had deposed that accused was apprehended by them, when he was coming in rickshaw along with three other persons and on checking, a plastic bag containing 17 packets of charas, was recovered—Chemical Examiner’s report proved that material was charas—Evidence of witnesses was unanimous on all aspects of the case; their evidence was consistent, coherent, and they had successfully faced the test of cross-examination, and nothing came on record to discredit their evidence—Accused was proved to have knowledge about charas allegedly found in the rickshaw—Prosecution through evidence, had successfully established that accused was apprehended on the spot; and from his rickshaw the plastic bag containing 17 K.Gs. of charas was recovered—Burden, in circumstances, shifted upon accused, but he failed to prove that he had no knowledge or consciously possessed the said article—Police witnesses were as good witnesses as other respectable public witnesses and their statements could not be discarded for the reason that they were Police employees, unless any animosity was shown or proved against them—No enmity was alleged against prosecution witnesses—Provision of S.103, Cr.P.C., was not applicable to a case of Control of Narcotic Substances Act, 1997, within the meaning of S.25 of the Act—Chemical Examiner’s report revealed that sealed bag was received which contained signatures of marginal witnesses—Alleged delay in sending material to Chemical Examiner was not fatal to the prosecution case, in circumstances—Accused had failed to rebut the prosecution version produced in shape of ocular testimony—Prosecution had succeeded to prove its case for recovery of 17 K.Gs. charas from accused—In absence of any illegality or infirmity, impugned judgment warranted no interference—Appeal filed by accused, was dismissed.

2016  MLD  1931   KARACHI-HIGH-COURT-SINDH

Haji MUHAMMAD IQBAL VS State

Ss. 9(c) & 29—Possessing and trafficking narcotics—Appreciation of evidence—Sentence, reduction in—Ten bags of charas weighing 289 Kgs., having been recovered from the possession of accused persons, they were convicted and sentenced to suffer life imprisonment and fine of rupees one million—Counsel for accused persons had prayed for their acquittal, or for reduction of sentence—Accused persons, who had served out major portion of their sentence i.e. more than 16 years, were not previously convicted in any case—Evidence led by the prosecution, was in line with the case, with no material variations or lapses—Memo of recovery and FIR stood fully corroborated and proved to the satisfaction of the Trial Court—Defence depended upon mere denial of the charge and case, as well as evidence—No defence evidence, at all had been adduced—Initial burden resting on the prosecution, stood discharged on its part, and accused had failed to rebut the same as provided under S.29 of the Control of Narcotic Substances Act, 1997, and to lead defence evidence establishing their innocence in the matter—Defence counsel prayed for mercy in the matter of punishment on the ground that they were first offenders; were bread earner members of their families, could be dealt with lenient view; more particularly they had served major portion of their sentence and that accused persons, could be allowed to lead their life as reasonable citizens, to support their families for their welfare and well-being—While maintaining the conviction of accused persons, their sentence was reduced to one already undergone—Accused persons, were released, in circumstances.

2016  MLD  1054   KARACHI-HIGH-COURT-SINDH

BILAWAL VS State

Ss. 497 & 103—-Control of Narcotic Substances Act (XXV of 1997), Ss. 9 & 6—Prohibition of narcotic drugs, etc.—Search to be made in presence of witnesses—Bail, grant of—Delay, and contradictions in prosecution version, regarding sending of recovered substance/Charas to Chemical Examiner—Further enquiry—Twenty-five hundred grams of Charas was alleged to have been recovered from accused—Accused was alleged to have been apprehended during day time from a place, which was busy road, but no private person had been associated to act as mashir/witness—Private persons should have been given preference if they were available at the spot, rather than official personnel, to maintain transparency of the recovery—High Court observed that the requirements of S. 103, Cr.P.C. were mandatory regarding the recovery in presence of two members of public—No explanation had been advanced for sending the recovered substance with delay of sixteen days; whereas, chemical laboratory, was about fifty kilometers away from the police station—Recovered substance had been sent to the chemical examiner more than once without any explanation—Accused was no more required to the police—Accused had been behind bars since date of his arrest, but prosecution had failed to examine even a single witness for period of seven months—No one could be detained for an indefinite period—No apprehension of tampering with prosecution evidence existed, as all prosecution witnesses were police officials—Accused had made out a case for further enquiry—Bail application was accepted accordingly.

2016  YLRN  140   KARACHI-HIGH-COURT-SINDH

DIN MUHAMMAD VS State

Ss. 497 & 103—-Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic drugs etc.—Bail before arrest, grant of—Further inquiry—Mashir/ recovery and arrest witnesses, requirement of—Effect—Place of arrest of the accused as mentioned in the FIR was different from the one described in Mashirnama of arrest and recovery, which, being a matter of further inquiry, required serious considerations—Accused was allegedly apprehended in bright day; whereas, neither any private person was associated nor any person from adjacent place was taken to act as Mashir to maintain the transparency of the alleged recovery—Accused was behind bars for eight months, but the prosecution had failed to conclude the trial—Accused had no previous criminal record—Section 9 (c) of Control of Narcotic Substances Act, 1997 provided punishment up to fourteen years if quantity of recovered substance was less than ten kilograms—Considering the quantity of the recovered narcotics from the accused and the different places of recovery, there was no possibility of awarding the maximum punishment provided for the offence—Bail application was accepted accordingly.

2016  PCrLJN  100   KARACHI-HIGH-COURT-SINDH

ZARWALI VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Possessing and trafficking of narcotics—Bail, grant of—Further inquiry—Accused persons were arrested from a thickly populated area with prior spy information, but no efforts were made by the complainant to fulfil the mandatory requirement of S.103, Cr.P.C., for securing presence of two respectable and independent persons of the locality to be the mashirs of recovery—Recovery memo showed discrepancies with the actual weight of charas alleged to have been recovered—Case, in circumstances, fell within S.497(2), Cr.P.C., which required further inquiry—Alleged recovery from either of accused, did not exceed one Kilogram, case of accused persons did not fall within the prohibitory clause of S.497, Cr.P.C.—Final challan having been submitted by the prosecution with the Trial Court, accused were no longer required by the prosecution for further investigation—Accused were entitled to be enlarged on bail—Accused were admitted to bail, in circumstances.

2016  PCrLJN  82   KARACHI-HIGH-COURT-SINDH

REHMATULLAH VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 561-A—Possessing and trafficking narcotics—Application for re-investigation of the case under S. 561-A, Cr.P.C.—Accused were arrested and huge quantity of contraband was recovered from truck driver by accused, in presence of two Mashirs, who had no enmity with accused persons—Challan of the case, had been submitted before the court—Application under S.561-A, Cr.P.C., was filed by accused persons on the ground that Investigating Officer had conducted investigation malafidely and had suppressed some material pieces of evidence, which caused serious prejudice to the case of accused—Counsel for accused persons had failed to point out any circumstances to prove alleged mala fide on the part of Investigating Officer—Challan had already been submitted and Trial Court had taken cognizance of the offence—No exceptional circumstances appeared in the case to interfere in the matter, and application filed by accused persons, was misconceived; and no case for re-investigation was made out—Application was dismissed, in circumstances.

2016  PCrLJN  79   KARACHI-HIGH-COURT-SINDH

ABDUL REHMAN VS State

1. 9(c)— Criminal Procedure Code (V of 1898), S.103—Possession of narcotic—Recovery proceedings—Non-association of private witnesses—Effect—Provisions of S.103, Cr.P.C., were mandatory in nature and could not be ignored without any proper justification—Prime object of S.103, Cr.P.C., was to ensure the transparency and fairness on the part of Police during the course of recovery, and to curb the false implication and minimize the scope of foisting of fake recovery upon the accused—In the present case, the place of incident was a thickly populated area but the complainant (Police Official) neither associated any public person to act as mashir of recovery in order to maintain transparency of alleged recovery nor any such effort was made by the complainant.

2016  PCrLJN  79   KARACHI-HIGH-COURT-SINDH

ABDUL REHMAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Contradictory statements—Benefit of doubt—Samples of narcotic were sent to medical examiner with an unexplained delay of seven days and prosecution witness confirmed the fact that during that period the recovered ‘charas’ was kept in ‘malkhana’ at the Police Station but without any entry of the same in the record—As per chemical examiner’s report nine semi soft and greenish brown samples were sent but on the other hand during trial instead of nine, thirty one samples were presented before the Trial Court and according to the complainant the recovered ‘charas’ was dark brown in colour—Complainant admitted that samples were not separated from some of the slabs which were produced at the trial, and further admitted that model, number of recovered mobile phone and denomination of currency notes were not mentioned in FIR or the memo of recovery nor was it sealed at the spot—Complainant admitted that “roznamcha” entry did not mention that investigation kit was with him, and he was unaware of the fact as to how many signatures of mashirs were obtained at the place of incident—Prosecution witness deposed that ‘charas’ was lying in black bag but a blue bag was produced during trial—Held, that factum of said unexplained delay of seven days and non-maintaining of such entry had made the case of prosecution highly doubtful—Glaring contradictions and material discrepancies in statements of prosecution witnesses were fatal to the case of prosecution, and consequently, prosecution case, in such circumstances suffered from reasonable doubt—Appeal was allowed and appellant was acquitted, in circumstances.

2016  PCrLJN  51   KARACHI-HIGH-COURT-SINDH

RIAZ KHAN VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking narcotics—Bail, refusal of—Charas weighing 10500 grams allegedly recovered from accused in presence of mashirs, was sent to Chemical Examiner, within three days; and report of examiner was positive—Contentions by counsel for accused regarding non-recording of evidence of selling of charas by accused; and variation in the signature of Investigating Officer on investigation papers, required deeper evidence, which was not permissible at bail stage—No enmity, had been alleged against Police Officials—Huge quantity of charas weighing 10500 grams had been recovered from the possession of accused—Prima facie, there appeared reasonable grounds for believing that accused had committed offence under S.9(c) of Control of Narcotic Substances Act, 1997, which was punishable for death or imprisonment for life; and also liable to fine up to one million rupees—Bail application was dismissed, in circumstances.

2016  PCrLJ  1315   ISLAMABAD

MUHAMMAD SHAFIQUE VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b) & 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)—Possession, import and export, trafficking or financing trafficking of narcotic drugs, etc.—Bail, grant of—Delay in sending samples of narcotics for chemical analysis—Quantity of recovered narcotics falling under borderline cases—Samples of the recovered contraband substances had been sent for chemical analysis with delay of seven days—Lapse on part of the police in sending the contraband substance for chemical analysis within the stipulated period, had made the case of the accused that of further inquiry—Quantity of narcotic substances allegedly recovered from the accused exceeded the borderline case falling between the offence under Ss. 9(b) & 9(c) of Control of Narcotic Substances, Act, 1997—All prosecution witnesses were police officials; hence, there was no chance of the accused tampering with the evidence—Accused had been behind bars for four and half months, and no prosecution witnesses had been examined so far— Bail application was allowed accordingly.

2016  YLR  682   Gilgit-Baltistan Chief Court

JAN MOHAMMAD VS State

1. 497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Manufacturing, owning, possessing and trafficking intoxicant—Bail, refusal of—Huge quantity of 3950 grams of opium, was attempted to be transported to an unknown place—All three accused persons were involved in the occurrence—Both the courts of Judicial Magistrate and Judge Anti-Narcotics, did not apply their judicious mind to the circumstances of the case and acted as ipse dixit of Police—Release of one of accused persons under S.169, Cr.P.C., was not justified, at bail stage—Quantity of narcotics in the present case, being huge, investigation of the case, must have been conducted by the Anti-Narcotics Force and not the police of concerned police station—Chief Court while dismissing the petition directed the Judge Anti-Narcotics/Sessions Judge to return or pass directions for returning the challan of case to the Director or Director Anti-Narcotics Force for investigation of the case; and resubmission of challan by said force in the court concerned.

2016  PCrLJ  1495   Gilgit-Baltistan Chief Court

SHAKEEL AHMAD VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 14, 15 & 51—Possessing and trafficking narcotics—Bail, refusal of—Section 51 of Control of Narcotic Substances Act, 1997, had created a bar to grant bail to accused, charged under Special Law i.e. Control of Narcotic Substances Act, 1997—Refusal of bail was rule, and grant was only an exception in cases falling under said Act—For availing exception provided in S. 51 of the Act, accused had to make out a case—Prosecution had two fold responsibilities firstly, it was to establish that the contraband narcotics recovered, was in conscious possession of accused; and secondly to establish that a particular quantity had been recovered from a particular accused—In absence of such evidence, it would be difficult for the court to draw inference against accused—In the present case, no apparent defect existed which should be resolved in favour of accused—Courts were extending concession of bail to accused, where participation/implication of accused was doubtful or debatable—Control of Narcotic Substances Act, 1997, was a Special Law, which had been enacted to curb the drug traffickers, and severe punishment had been proved to create deterrence for like-minded people—Accused persons having failed to make out a case for exercise of discretion of the court in their favour, bail petition, was dismissed, in circumstances.

2016  PCrLJ  957   Gilgit-Baltistan Chief Court

HAIDER VS The STATE

1. 9(c)—Criminal Procedure Code (V of 1898), Ss. 156(2) & 537—Possessing and trafficking of narcotics—Investigation by normal Police, instead of Anti-Narcotic Force—Return of challan—Normal Police Station chalked FIR, charging accused persons for the offence of S.9(c) of Control of Narcotic Substances Act, 1997—Control of Narcotic Substances Act, 1997, was a special law, which had provided special mechanism for investigation of the occurrence falling under said law—Attitude of normal Police Station, was patently in utter violation of said law—Chalking of FIR by normal Police Station in case falling under Control of Narcotic Substances Act, 1997, neither could be indemnified under S.156(2), Cr.P.C., nor was curable under S.537, Cr.P.C., as said section neither had provided for any indemnification, nor provided for any curing of such action of normal Police Station—Chief Court directed for re-opening of the investigation of the case by Anti-Narcotics Force, treating the FIR already chalked by Anti-Narcotics Force—Trial Court was directed for returning the challan; if same was presented by normal Police.

2015  SCMR  1077   SUPREME-COURT

SOCHA GUL VS State

1. 9—Criminal Procedure Code (V of 1898), Ss. 497 & 498—Recovery of narcotic drugs— Bail, grant of— Categorizing of sentence—Neither categorization of sentencing nor any guess work or speculative exercise could be undertaken by court at bail stage to enlarge an accused on bail in such crimes— Such categorization amounts to pre-empting the mind of Trial Court, controlling its powers in the matter of sentencing accused and determining quantum of sentence upon his conviction.

2015  SCMR  1077   SUPREME-COURT

SOCHA GUL VS State

Ss. 9(c) & 51—Criminal Procedure Code (V of 1898), S. 497—Recovery of narcotic drugs—Bail, grant of—Four kilogram of Charas was recovered from accused during his personal search—Held, offences punishable under Control of Narcotic Substances Act, 1997, were by its nature heinous and considered to be the offences against society at large—Control of Narcotic Substances Act, 1997 itself had provided a note of caution under its S. 51 before enlarging accused on bail in ordinary course—Even on the basis of standards set out under S.497, Cr.P.C. for grant of bail to accused involved in offence under S.9(c) of Control of Narcotic Substances Act, 1997, accused charged with an offence, prescribing various punishments was not entitled for grant of bail merely on account of the nature or quantity of narcotic substance being four kilograms—Deeper appreciation of evidence was not permissible at bail stage and Trial Court could depart from normal standards prescribed by High Court in an earlier case and could award him any other legal punishment—Supreme Court declined to interfere in judgment passed by High Court, whereby accused was declined bail—Petition was dismissed in circumstances.

2015  SCMR  1002   SUPREME-COURT

IKRAMULLAH VS State

Ss. 9(c) & 36—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 & 6—Recovery of narcotic substance—Reappraisal of evidence—Chemical Examiner Report—Safe custody of narcotics—Proof—Accused persons were convicted and sentenced to imprisonment for life alleging recovery of 48 packets of Chars from their vehicle—Validity—Entire page which was to refer to relevant protocols and tests was not only substantially kept blank but the same had also been scored off by crossing it from top to bottom—Such was a complete failure of compliance of relevant Rule and such failure reacted against reliability of report produced by prosecution before Trial Court—Provisions of S. 36 of Control of Narcotic Substances Act, 1997, required a government Analyst to whom a sample of recovered substance was sent for examination to deliver to the person submitting the sample a signed report in quadruplicate in “the prescribed form”—If report prepared by government analyst was not prepared in the prescribed manner then it could not qualify to be called a report in the context of S. 36 of Control of Narcotic Substances Act, 1997, so as to be treated as “conclusive” proof of recovery of narcotic substance from accused person—Investigating officer appearing before Trial Court had failed to even mention name of police official who had taken the samples to office of Chemical Examiner—No such police official was produced before Trial Court to depose about safe custody of samples entrusted to him for being deposited in office of Chemical Examiner—Prosecution was not able to establish that after alleged recovery of substance so recovered was either kept in safe custody or that samples were taken from recovered substance had safely been transmitted to office of Chemical Examiner without the same being tampered with or replaced while in transit—Prosecution failed to prove its case against accused persons beyond reasonable doubt—Supreme Court set aside conviction and sentence awarded to accused persons and they were acquitted of the charge—Appeal was allowed.

2015  SCMR  735   SUPREME-COURT

KHUDA BAKHSH VS State

1. 9—Possession of narcotics—Sentence, quantum of—Scope—Quantity of recovered narcotic—Quantum of sentence in narcotic substance cases depended upon the quantity of the recovered substance—Section 9 of the Control of Narcotic Substances Act, 1997, provided for progressively greater punishment depending on the quantity of narcotics.

2015  SCMR  735   SUPREME-COURT

KHUDA BAKHSH VS State

1. 9— Possession of narcotic— Sentence, quantum of— Scope—Court had the discretion to award any sentence, which it deemed fit in the facts and circumstances of a certain case.

2015  SCMR  735   SUPREME-COURT

KHUDA BAKHSH VS State

Ss. 9 (b) & (c)—Possession of narcotics—Reappraisal of evidence—Sentence, reduction in—Separate samples taken from each packet of narcotic not sent for examination—Only one sealed sample sent for examination—Effect—Type of narcotic recovered, significance of—“Charas” [baked cannabinoids] as a less harmful narcotic—Accused was allegedly transporting 170 kilograms of cannabis (charas), which was hidden in secret compartments in the boot of a car—Trial Court convicted the accused under S. 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to imprisonment for life with a further direction to pay a fine of one hundred thousand rupees—Appeal filed by accused against his conviction and sentence was dismissed by the High Court—Validity—Accused did not deny driving the vehicle from which narcotics were recovered and admitted that it was stopped at a check post, but stated that the narcotics were foisted upon him and in such regard produced the affidavit of a certain person—Accused, however, did not seek the production of said person as a defence witness nor recorded his own statement on oath—Prosecution on its part had established the recovery of the narcotics from the vehicle being driven by the accused—FIR was lodged within a reasonable period after a thorough search of the vehicle had been conducted— No reason existed for the prosecution witnesses to falsely implicate the accused, who was not previously known to them—Report of Forensic Science Laboratory also confirmed that substance sent as samples was “charas (baked cannabinoids)”—Whilst it had been established that the seized substance sent for chemical examination was charas one could not presume that the entire quantity of the material seized from accused was charas too, since separate samples taken from each packet were not so sent for examination—Forensic Science Laboratory report stated that only one “sealed parcel” was received by it, therefore, the contention of the prosecution that separate samples were removed from each packet of the seized material, was not borne out from the record—Two kilograms of narcotic were sent as sample together in one sealed parcel, therefore, the accused could at best be held liable for the said two kilograms—Charas unlike other narcotics such as heroin was less harmful and dangerous, and keeping in mind the quantity of two kilograms and the fact that it was the accused’s first offence, the sentence of imprisonment for life awarded to him appeared to be excessive—Section 9(c) of Control of Narcotic Substances Act, 1997, also provides for imprisonment for a term of up to fourteen years, and if said provision was read with S. 9(b) of the said Act (which provided a maximum imprisonment term of seven years in respect of a quantity of up to one kilogram) then the sentence for a quantity of two kilograms of charas could range from imprisonment of over seven years and up to fourteen years—Supreme Court maintained conviction of accused under S. 9(c) of the Control of Narcotic Substances Act, 1997, but reduced his period of rigorous imprisonment to eight years with a fine of one hundred thousand rupees—Appeal was partly allowed accordingly with the observation that the conduct of the prosecution in the present case, in so far as it did not send to the Chemical Examiner separately sealed samples from the different seized packets, was to be deprecated.

2015  SCMR  735   SUPREME-COURT

KHUDA BAKHSH VS State

Ss. 9(b) & (c)—Possession of narcotic—Sentence, quantum of—Scope—Nature of narcotic recovered, significance of—When determining the quantum of sentence it was appropriate to consider the nature of the narcotic substance, since some narcotics were more dangerous and harmful than others—Although the Control of Narcotic Substances Act, 1997, did not explicitly state that the type of narcotic substance determined the quantum of sentence, however, the fact that the said Act provided for a range of sentences implied as such.

2015  SCMR  735   SUPREME-COURT

KHUDA BAKHSH VS State

Ss. 9(b) & (c)—Possession of narcotic—Sentence, quantum of—Scope—Quantity of recovered narcotic—Perusal of Ss. 9(b) & 9(c) of Control of Narcotic Substances Act, 1997, made it clear that for a quantity exceeding one kilogram an imprisonment for a period exceeding seven years was mandated, and if it exceeded ten kilograms it could not be less than imprisonment for life—Section 9(c) of Control of Narcotic Substances Act, 1997, also provided for imprisonment “which may extend to fourteen years”, which would mean that the period of imprisonment in respect of narcotics weighing more than one kilogram, but less than ten kilograms, should be for a period greater than seven years to anything less than fourteen years—Sentence of imprisonment for life or death was attracted when the threshold of ten kilograms (proviso to S. 9 of Control of Narcotic Substances Act, 1997) was reached.

2015  SCMR  308   SUPREME-COURT

SHAUKAT ALI alias BILLA VS State

1. 9(c)—Possession of narcotic—Re-appraisal of evidence—Sentence, reduction in—Death sentence converted to sentence already undergone—Narcotic found in different packets—Separate samples to be taken from each packet for examination—Accused was allegedly found in possession of 20 bags containing narcotics—Each bag contained 20 packets and each packet weighed 1 kilogram—One (1) gram narcotic was separated from each packet and after amalgamation, 10 sealed parcels of 20/20 grams narcotic were prepared as sample—Held, that if narcotic was recovered, then from each packet a separate sample of narcotic for chemical examination had to be prepared and sent for examination—However, in the present case only 10 packets had been prepared as sample after amalgamation of the recovered narcotic, hence, keeping in view the ratio of the judgment Ameer Zeb v. The State (PLD 2012 SC 380), recovery of narcotic was proved only to the extent of 10 kilograms—Accused in such circumstances could at most be convicted under S. 9(c) of Control of Narcotic Substances Act, 1997 for narcotic weighing 10 kilograms—Proviso to S. 9(c) of Control of Narcotic Substances Act, 1997 provided that if quantity of recovered narcotic exceeded 10 kilograms, the punishment shall not be less than imprisonment for life—As the quantity of narcotic recovered from accused in the present case was proved only to the extent of 10 kilograms (and not more than that), hence he could not be sentenced to undergo life imprisonment—Accused had already undergone more than 14 years in jail—Supreme Court in such circumstances converted death sentence awarded to accused to sentence already undergone by him—Appeal was disposed of accordingly.

2015  SCMR  291   SUPREME-COURT

AKHTAR IQBAL VS State

1. 9(c)—Possession of narcotic—Reappraisal of evidence—Benefit of doubt—Material witnesses not produced before Trial Court—Doubt as to whether samples were taken from each and every packet of narcotic—Probability of false implication—Effect—Recovery officer and one of the recovery witnesses expired before making their statements before the Trial Court—Only material witness produced by the prosecution before the Trial Court was a witness who had attested memorandum of recovery—Head of raiding party was not produced before the Trial Court and no explanation for such failure was offered—Parcels of recovered narcotic were sealed with the monogram (name initials) of an official who was not even posted at the relevant police station at the time of alleged recovery from accused—No explanation was offered as to why the said parcels did not contain the monogram of the recovery officer—Prosecution claimed that a sample had been taken from each and every slab of recovered substance but note recorded by Trial Court in such regard tended to create an impression that such claim might not be correct—Accused in his statement under S. 342, Cr.P.C. claimed that he had been falsely implicated in the present case because he was instrumental in the arrest of a drug baron, who was later on convicted and sentenced to death—Probability existed that accused was falsely implicated in the present case—Appeal was allowed and accused was acquitted of the charge by extending him benefit of doubt.

2015  SCMR  279   SUPREME-COURT

GUL NOOR ALI VS The STATE

1. 9(c)—Possession of narcotic—Reappraisal of evidence—Benefit of doubt—Public witness not supporting prosecution case—Separate samples from each packet not taken—Effect—Narcotic weighing 13450 grams was allegedly recovered from a vehicle, which was driven by the accused—Prosecution witnesses consisted of police officials and a public witness—Public witness stated that he was working as a Razakar with the police on patrol duty, and that when the vehicle in question was stopped and searched nothing was recovered on account of which he was declared as a hostile witness—Prosecution thereafter proceeded with its case by adducing evidence of other prosecution witnesses who were all police officials—Public witness associated with recovery of narcotic had not supported the prosecution case, which created a dent in the veracity of the recovery being effected, and thus serious doubts had arisen, benefit of which had to go to the accused—Separate samples had not been taken from each and every packet for chemical analysis rather only one sample weighing 10 grams had been separated and sent for chemical analysis, and it had also not been specified as to from which packet the sample was separated—Such circumstances created serious doubt in the prosecution case, benefit of which had to go the accused—Appeal was allowed accordingly and conviction and sentence of accused under S. 9(c) of Control of Narcotic Substances Act, 1997, was set aside.

2015  SCMR  133   SUPREME-COURT

The STATE/ANF VS ALEEM HAIDER

1. 9(c)—Criminal Procedure Code (V of 1898), S. 161—Constitution of Pakistan, Art. 185(3)—Possession of narcotic—Bail, cancellation of—Statements of prosecution witnesses under S. 161, Cr.P.C. fully implicating the accused—Effect—Anti-Narcotics Force found 202 kilograms of heroin from a container which contained an export consignment—Huge quantity of heroin was recovered—Accused was the main exporter of the consignment—Record showed that accused contacted the freight forwarder for export, who in turn hired the services of a clearing agent—Accused had obtained possession of a godown for packing the consignment, which fact was confirmed by the manager of the godown to the police—Driver of the trawler which contained the consignment stated before investigating officer that the consignment was delivered to him by the accused—Statements of prosecution witnesses (under S. 161, Cr.P.C.) fully implicated the accused, connecting him with the alleged offence—Bail granted to accused by High Court was cancelled in such circumstances—Petition for leave to appeal was converted into appeal and allowed accordingly.

2015  YLR  568   QUETTA-HIGH-COURT-BALOCHISTAN

The STATE through Regional Director Anti-Narcotics Force, Quetta VS ABDUL HAMEED

Ss. 497(5) & 498—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 15 & 51—Possessing and trafficking of narcotics—Pre-arrest bail, cancellation of—Principal accused disclosed the name of accused during the on-spot interrogation, but no private person was associated during the course of alleged disclosure made by principal accused—Accused, according to prosecution case, was fugitive from law and remained absconder, but documents submitted by accused had shown that accused had gone abroad at the time of alleged recovery; and on his return, on knowing about registration of the case against him, he surrendered before the court and obtained ad interim pre-arrest bail—Section 51 of Control of Narcotic Substances Act, 1997 though imposed an embargo on grant of bail to accused in the narcotics case, but, the right of bail could not be withheld as punishment—Court, in appropriate cases, therefore, could grant bail—Allegation of mala fides on the part of prosecution agency, prima facie was plausible—For purpose of cancellation of bail, agency/ person had to show that either the order passed by the court was perverse or against the principles of law, or accused after being admitted to bail was trying to tamper with the evidence, or there was apprehension of repetition of the offence—Neither any such ground was agitated, nor argued—Disclosure by principal accused was not admissible as evidence—Evidentiary value of such disclosure was to be seen at trial, but same could only be termed as a “statement under S.161, Cr.P.C.”; which could be considered for purpose of cancellation of bail; and case against accused required further probe—Order granting bail, in circumstances, could not be interfered with—Application for cancellation of bail, being devoid of merits, was dismissed, in circumstances.

2015  PCrLJ  1767   QUETTA-HIGH-COURT-BALOCHISTAN

GHULAM SARWAR VS State

Ss. 9(c) 8, 7, 6 & 48—-Customs Act (IV of 1969), S. 171—Appeal against conviction—Possession of narcotics drugs, import and export of narcotics drugs, trafficking or financing trafficking of narcotics drugs, etc.—Appreciation of evidence—Benefit of doubt—When seizure or arrest is made, reason in writing to be given—Seizure memo of recovered contrabands not prepared at spot—Effect—Non-sealing of samples of contrabands at spot—Effect—Chemical Examiner’s report– Evidentiary value—Ownership of vehicle used in transportation of contraband—Requirement of proof—Charas and opium were alleged to have been recovered from accused—Trial court convicted accused under S.9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to undergo imprisonment and pay fine—Accused took plea that he had no knowledge of contrabands concealed in body of vehicle—Witnesses had made dishonest improvements in their dispositions and same were contradictory—Fard-e-bayan or notice of seizure issued under S.171 of Customs Act, 1969 had been typed, whereas prosecution witness stated that he had written the same by hand at the spot, which indicated that case property was not seized at the spot—Prosecution witness had admitted that samples of recovered contrabands had not been prepared at the spot—Neither seizure memo nor samples had been prepared at spot, which was illegal, and for which no explanation was given by complainant—Non-sealing of samples of recovered contrabands soon after its recovery had created serious doubt in prosecution case—No reliance could be placed on Chemical Examiner’s report, which, in given circumstances, had lost its evidentiary value—Prosecution had failed to prove ownership of vehicle used in transportation of recovered contrabands, as no registration documents regarding said vehicle had been produced—Nothing was available on record to show whether said vehicle belonged to accused or he was driving the same—Prosecution had failed to connect accused neither with vehicle nor with recovered contrabands— Recovery of recovered contrabands was not effected on pointation of accused—Prosecution failed to prove conscious possession or knowledge of recovered contrabands—Trial court could not properly appreciate defence plea—Entire case of prosecution was defective, doubtful and full of contradictions—Impugned judgment suffered from wrong appreciation, non-reading and misreading of evidence—High Court, extending benefit of doubt, acquitted accused—Appeal was allowed in circumstances.

2015  PCrLJ  974   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD ISMAIL VS State

Preamble, Ss. 2(k)(s)(za), 9(c) & 16—Drugs Act (XXXI of 1976), Ss.23 & 28—Criminal Procedure Code (V of 1898), S.221—Possessing or trafficking narcotics—Recovery of alcohol, beer and acid—Framing of charge—Alcohol, beer and acid, were recovered from the vehicle and FIR under Ss.23 & 28 of the Drugs Act, 1976 was lodged against accused—Application of accused filed under S.221, Cr.P.C. for framing charge under S.16 of Control of Narcotic Substances Act, 1997, having been rejected by the Trial Court—Validity—Recovered liquid, which had been identified as ‘Hydrochloride Acid (HCL)’, used as chemical regent in laboratory experiments, did not fall within the definitions of “controlled substance”, “narcotic drug” and “Psychotropic substance” as provided in S.2(k)(s)(za) of Control of Narcotic Substances Act, 1997—Recovered liquid not falling within the mischief of S.9(c) of Control of Narcotic Substances Act, 1997, nor coming under any definition of the contraband item/substance, order passed by the Trial Court/Special Court, whereby application of accused filed under S.221, Cr.P.C. was rejected, was set aside—Trial Court was directed to alter the charge and to frame the same for an offence punishable under S.16 of Control of Narcotic Substances Act, 1997, thereafter to proceed with the case strictly in accordance with law.

2015  PCrLJ  62   QUETTA-HIGH-COURT-BALOCHISTAN

SAEED AZAM VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Accused, in the present case, was substituted by the Police, which was evident from the conduct of Police which had let off the accused after taking his personal surety, without any lawful authority and jurisdiction, in view of the fact that huge quantity of contraband was recovered from his possession—Letting free the real accused in the case, smacked of mala fide of the Police—Trial Court had failed to properly assess and appreciate the evidence on record—Investigating Officer admitted the fact, that neither the samples were drawn in his presence, nor same were sent to Forensic Science Laboratory, nor parcels were prepared in his presence; and he did not even receive any report from Forensic Science Laboratory—Prosecution had failed to tender any plausible explanation for delay in sending the samples for analysis—Prosecution, despite having prior information in respect of smuggling of narcotics had failed to make proper arrangement for associating an independent witness to strengthen the prosecution case—Section 25 of Control of Narcotic Substances Act, 1997, had excluded application of S.103, Cr.P.C. to cases under Control of Narcotic Substances Act, 1997, but there must be plausible explanation on the part of Investigating Officer showing his inability for not complying with such provisions of law—Accused having taken the plea that he was substituted by the Police; and the real culprit was set at liberty, false implication of accused, could not be ruled out of consideration—Prosecution witnesses, were declared hostile, as they specifically denied the fact that they were the members of raiding party, which recovered the contraband from the possession of accused; and even they did not sign the recovery memos prepared by complainant/Investigating Officer—Prosecution had also failed to collect any material, with regard to ownership of vehicle, in question—Nothing was on record that said vehicle was owned by accused, or that he was driving the same—Prosecution had failed to bring home the charge against accused beyond any shadow of doubt— Entire case of prosecution was defective, doubtful and full of contradictions—Judgment of the Trial Court, which suffered from misappreciation, non-reading and mis-reading of evidence available on record, was set aside, accused was acquitted of the charge and was released, in circumstances.

2015  MLD  499   QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL QADEER VS State

Ss. 497, 103 & 537—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 21, 22, 23 & 25—Possessing and trafficking of narcotics—Bail, refusal of—Accused being driver of truck from which alleged contraband items were recovered, was incharge of the same, and it was under his control and possession and knowledge—Accused was in conscious possession of the contraband items and same could be attributed to him—No enmity of accused with the Anti-Narcotic Force was established—Section 25 of Control of Narcotic Substances Act, 1997, having excluded applicability of S.103, Cr.P.C., failure to associate any private witness in recovery proceedings, could not be termed as fatal to the prosecution case—Sections 21, 22 & 23 of Control of Narcotic Substances Act, 1997 being directory in nature, non-compliance thereof, would not vitiate the trial, which was a mere irregularity and curable under S.537, Cr.P.C.—Provisions of S.9(c) of Control of Narcotic Substances Act, 1997, though had provided that no Officer below the rank of Sub-Inspector of Police would be authorized to exercise powers under that Act but provision being directory in nature, would not vitiate the trial—Challan of the case having already been submitted before the Trial Court; any observation at that stage could prejudice the case of either side—Contention with regard to rule of consistency, was of no assistance to accused, for the sole reason that evidence against accused was not at par with that of co-accused, who had been admitted to bail—Accused could not be admitted to bail, in circumstances, his bail application was dismissed, in circumstances.

2015  YLR  2517   PESHAWAR-HIGH-COURT

NOORZALI SHAH VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Corroborative and coherent deposition of the complainant and margiital witness; absence of signature of one of the marginal witnesses on the recovery memo and omission to mention presence of a child in the pick up at the time of recovery of `charas’ from the pick-up, was of no consequence and would be of no significance for arriving at a conclusion in favour of accused—Nothing could be brought on record to dislodge case of the prosecution; proving recovery of 26400 grams icharas from the secret cavity of upper part of the pick up, owned and possessed by accused; who was arrested red-handed, while transporting the same in the said pick up—Neither the recovery of the contraband “charas” from the pick up, nor ownership and possession of the vehicle could be disproved; while role of the prosecution/Police in the recovery remained above board without being impeached by the defence—Samples separated from the bulk on the spot, immediately after recovery in the presence of witnesses, received positive finding from Forensic Science Laboratory; which could not be seriously challenged, as nothing was brought on record with regard to tampering with or substitution of the samples before their examination in Forensic Science Laboratory—Police Officers were as good witnesses as others unless mala fide or malice was attributed to them—Detailed judgment of the Trial Court covering all aspects of the case, could not be interfered with—Conviction and sentence awarded to accused by the Trial Court, were upheld.

2015  YLR  2189   PESHAWAR-HIGH-COURT

FAYAZ SHAH VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Samples of allegedly recovered narcotics, were received by Forensic Science Laboratory, 35 days after the recovery was effected—No explanation was furnished by the prosecution, as to why the samples were not sent to the Forensic Science Laboratory on the same day—No evidence was available to the effect that during 35 days, where and with whom the samples were lying—Possibility of tampering with the same, could not be ruled out—Car, from secret cavities of which the contraband charas was recovered, was not produced before the court to strengthen the prosecution version as to whether the cavities made therein could contain such a huge quantity of narcotics or otherwise—Prosecution had to prove its case through convincing and reliable evidence, which was missing in the present matter—Prosecution having failed to establish its case against the accused persons beyond reasonable doubt; conviction and sentence of accused persons, recorded by the Trial Court was not sustainable in law on account of infirmity in the prosecution version, which had made the case doubtful—Conviction and sentence of accused persons were set aside; they were acquitted and were set at liberty.

2015  YLR  1786   PESHAWAR-HIGH-COURT

The STATE through Advocate-General Khyber Pakhtunkhwa, Peshawar VS AMIR REHMAN

1. 9(c)—Criminal Procedure Code (V of 1898), S. 417 (2-A)—Possession of narcotics—Appeal against acquittal—Appreciation of evidence—Benefit of doubt—Case was registered on 13-6-2011 while samples were sent to the Forensic Science Laboratory on 2-7-2011—Delay for sending samples had not been explained which created doubt and apprehension of tampering with the same—Investigation Officer had not given explanation with regard to safe custody of the contraband during the intervening period of sending samples—Material contradictions were on record with regard to occurrence and weight of contraband—Mode and manner of the recovery of contraband was doubtful—Trial court pointed out material contradictions in the statement of prosecution witnesses and irregularities which created dent in the prosecution case—When two explanations were equally possible, the one in favour of accused should normally be accepted—Benefit of doubt had rightly been given to the accused, in circumstances–Findings of the Trial Court could not be said to be the result of inapplicability of mind, non-reading and misreading, misinterpretation, misapplication of mind and evidence—Observations and grounds for acquittal of accused were recorded on the basis of sound and cogent analyses and appreciation of the evidentiary principles of criminal jurisprudence—Accused after his acquittal from the criminal charges enjoyed double presumption of innocence and courts while dealing with the appeal were bound to examine whether courts below had not ignored any evidence or had discarded any evidence for the reason not recognized by law—Appeal against acquittal was dismissed.

2015  YLR  1465   PESHAWAR-HIGH-COURT

GHULAM RASOOL VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Sentence, reduction in—Complainant and the sole marginal witness, had contradicted each other on the factum of delivery of narcotics, and handing over accused person to the Investigating Officer—Police personnel who drafted the report, and the one who took the contraband to the Forensic Science Laboratory, were not produced as witnesses; even their names were not mentioned in the calendar of witnesses by the prosecution—No witness had disclosed the kind of the vehicle from which a huge quantity of narcotics was recovered; nor the prosecution had conducted investigation regarding the ownership of the vehicle—Sample of seized narcotics were sent to Forensic Science Laboratory with unexplained delay of 10 days—Accused persons had been awarded maximum punishment as provided under S.9(c) of Control of Narcotic Substances Act, 1997, whereas while awarding punishment to an accused for an offence, which entailed capital punishment, the standard of evidence would be above board to save the accused from any probability of injustice—Sentence imposed upon accused persons, in circumstances, was severe one and not appropriate and proportionate—Conviction of accused persons was upheld, but their sentence was reduced from life imprisonment to 5 years’ R.I. with fine of Rs.50,000.

2015  YLR  1440   PESHAWAR-HIGH-COURT

IMRAN KHAN VS State

Ss. 497 & 537—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 20, 21 & 22—Bail, refusal of—Huge quantity of narcotics had been seized—No mala fide on the part of Police was shown—Accused was charged with heinous offence which fell within prohibitory clause of S.497, Cr.P.C.—Accused was not entitled to concession of bail—Section 21 of the Control of Narcotic Substances Act, 1997 pertained to raid only and was not applicable to the present case as Police Officials did not launch a raid—Apprehension of accused by Assistant Sub-Inspector was an irregularity which could be cured under S.537, Cr.P.C.—Provisions of Ss.20, 21 & 22 of the Control of Narcotic Substances Act, 1997 were directory in nature and non-compliance of the same would not be a ground for holding the trial conviction bad in the eyes of law—Bail application was dismissed.

2015  PCrLJ  1430   PESHAWAR-HIGH-COURT

RASHID VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)—Possessing and trafficking narcotics—Appreciation of evidence—Benefit of doubt—Sample of allegedly recovered contraband, was sent and received by Forensic Science Laboratory with unexplained delay of four days of the occurrence, which had created serious doubt regarding report of Forensic Science Laboratory—No witness from public, was either associated to witness the recovery of charas, or to cite as marginal witness to the recovery memo—Local Police had falsely involved the accused in the case, without brining substantive evidence on record—Prosecution, in circumstances of the case, had not been able to prove its case against accused beyond any shadow of doubt—Accused was acquitted and set free by extending him benefit of doubt—Conviction and sentence recorded by the Trial Court against accused, were set aside, in circumstances.

2015  PCrLJ  1108   PESHAWAR-HIGH-COURT

MUHAMMAD SAID VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S.423—Possessing and trafficking narcotics— Appreciation of evidence— Report of Forensic Science Laboratory—Effect of—Juvenility of accused—Remand of case—Maker of the report of Forensic Science Laboratory, was not a “Government Analyst” under the law at the time he prepared the report—Co-accused, who had been charged in the case, claimed to be a juvenile, who produced his school leaving certificate, but the same went un-attended—High Court took with serious concern the inaction on the part of Presiding Officer of the Trial Court, which despite the jurisdictional issue raised before it, did not legally consider and decide the same—If the assertion of co-accused was true and correct, it would surely render the conviction awarded to co-accused by the Trial Court without jurisdiction, and of no legal effect—Very crucial issues involved in the case, required reconsideration, which warranted the remand of the case to the Trial Court—Safe administration of criminal justice required that none be prejudiced, and truth be ascertained—Deciding the case by High Court in appeal in circumstances, would prejudice co-accused; as jurisdictional issue raised by him, had not been attended by the Trial Court in appropriate legal manner—High Court set aside the conviction and sentence awarded by the Trial Court to accused persons, remanded the case to the Trial Court for decision afresh, after having fresh samples of contraband obtained and sent for chemical examination by Government Chemical Analyst and determine the age of co-accused at the time the alleged commission of offence—Accused persons had already suffered the rigors of trial and confinement, the trial be concluded within three months.

2015  PCrLJ  779   PESHAWAR-HIGH-COURT

SHAHID IMRAN VS State

Ss. 9, 48 & 74—Criminal Procedure Code (V of 1898), S.516-A—Recovery of narcotic substance—Revision—Maintainability—Vehicle, superdari of—Principles—Vehicle in question and its driver were taken into custody, as narcotic substance was recovered—Petitioner claimed to be real owner of vehicle and sought its interim possession—Validity—Though no absolute bar could be placed on releasing vehicle on interim custody under the provisions contained in S. 74 of Control of Narcotic Substances Act, 1997 but the claimant had to at least prima facie establish that he had no nexus or connection of whatever kind with commission of offence or with offender—Accused was driver of petitioner, which prima facie made nexus of petitioner with accused—Proposition of innocence of accused could not be determined without recording of evidence in such respect that it was not known to him that offence was being or had to be committed through the vehicle in question—Control of Narcotic Substances Act, 1997, which had super imposing status as regard to general criminal law and special procedure was provided for redressal of grievance, recourse to general law was to be avoided—Provision contained in section 48 of Control of Narcotic Substances Act, 1997, conferred rights upon aggrieved person to file appeal against any order passed by Special Court in exercise of its jurisdiction thereunder and revision was competent without first exhausting remedy of appeal provided under S. 48 of Control of Narcotic Substances Act, 1997— Revision was dismissed in circumstances.

2015  PCrLJ  45   PESHAWAR-HIGH-COURT

MUHAMMAD IMRAN VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Prosecution had failed to prove any link of two female co-accused with male accused persons, who had been convicted and sentenced—Both accused persons and said female co-accused were residents of different places—One of female co-accused was an old lady aged about 70 years, while other was 21 years old—Even accused person in their statements under S.342, Cr.P.C. had deposed that both co-accused ladies boarded the car for their treatment at Rawalpindi— No recovery was effected from their possession; and the contrabands were recovered from rear seat and secret cavities of the car— Prosecution had failed to establish that said co-accused were in knowledge of the narcotics, or the same was exposed to them— From the very first day of their arrest, their plea was that they were passengers, and had no link, either with male accused, or the vehicle used in the crime— If the contraband was lying open within the view of those co-accused, or they knew the placement of same in secret cavities, then situation would have been different—Prosecution had simply proved presence of accused (ladies) in vehicle; and mere presence of accused in vehicle would not involve them in the case—Prosecution having failed to prove its case against female co-accused, their appeal was accepted, in circumstances.

2015  PCrLJ  45   PESHAWAR-HIGH-COURT

MUHAMMAD IMRAN VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Sentence, reduction in—Mitigating circumstances—Both accused persons were arrested on the spot and recovery was made from their possession—Accused persons had not denied that they were not in possession of vehicle from which the contrabands were recovered as well as their presence in the said car at the time of recovery—Report of Chemical Examiner was in positive, which further supported the prosecution version—No mala fide or enmity had been alleged, nor brought on record against the officials, who were Investigating Officers and the witnesses of recovery memo—No material contradiction or discrepancy had been brought out on the record to shatter the credibility of prosecution evidence—Accused persons had failed to prove defence plea by producing any evidence—Trial Court, in circumstances, had rightly convicted accused persons—Controversy as to whether the contraband was 100 Kg. or 9500 grams, had made the case that of mitigating circumstances—Maintaining the conviction of accused persons, their sentence was reduced from imprisonment for life to 7 years with fine of Rs.100,000 each—Benefit of S. 382-B, Cr.P.C. extended to accused persons, remained intact.

2015  MLD  1324   PESHAWAR-HIGH-COURT

SHUJAT ALI VS The STATE through Advocate General, Khyber Pukhtunkhwa

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Sentence, reduction in—Huge quantity of 147 Kgs. charas and 1 Kg. opium, were recovered from the secret cavities of the vehicle in question—Little quantity of charas from each packet (recovered) was obtained, mixed, and from mixture, 3/3 samples each 10/10 grams was separated while three samples each weighing 10 grams of opium was also separated—Investigating Officer had sent one sample of charas and opium each for chemical analysis—Prosecution was under legal obligation to have first weighed every packet, and then separate a small quantity from each packet, properly sealed and send them for chemical analysis—Such legal requirement had not been complied with in the present case—Sample sent to Forensic Science Laboratory for analysis could not be said to be representative sample in circumstances—Quantum of sentence awarded to accused, was not sustainable in the eyes of law because one sample of 10 grams of amalgamated charas and one sample of 10 grams of opium, were sent for chemical analysis, report whereof was received as positive—Accused, in circumstances, was liable to be held responsible for having or only 1 Kg. of charas and 1 Kg. of opium—Conviction of accsed under S.9(c) of Control of Narcotic Substances Act, 1997, was maintained, but his sentence was reduced from imprisonment for life to seven years’ R.I., while the fine imposed upon accused was ordered to remain intact.

2015  MLD  518   PESHAWAR-HIGH-COURT

AMAN UL HAQ VS State

Ss.9(c) & 35—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.3—Possession of narcotics—Government Analyst—Qualification—Substance weighing 15 kilograms recovered from secret compartment of car driven by accused was alleged to be narcotics—Trial Court convicted the accused and sentenced him to imprisonment for life—Validity—Narcotics substance was brought under processing from Forensic Science Laboratory report on 4-3-2009, while concerned officer was declared as Government Analyst on 5-8-2009 but with retrospective effect—Concerned declared Government Analyst lacked the required qualification as envisaged under S. 35 of Control of Narcotic Substances Act, 1997, read with Rule 3 of Control of Narcotic Substances (Government Analysts) Rules, 2001—Most crucial issue of forensic verification of narcotics was not carried out in accordance with prescribed manner as provided there, under the provisions of Control of Narcotic Substances Act, 1997—High Court set aside conviction and sentence recorded by Trial Court and remanded the case to Trial Court for decision afresh—Appeal was allowed accordingly.

2015  MLD  507   PESHAWAR-HIGH-COURT

AHMAD GUL VS State

S.9(c) & 29—Recovery of narcotic substance—Appreciation of evidence—Conscious possession—Proof—Charas weighing 336 kilograms was recovered from secret compartments of truck in which accused was sitting on the seat next to driver—Trial Court convicted accused and sentenced him to imprisonment for life—Plea raised by accused was that he boarded truck on the way and did not know about presence of narcotic substances in secret compartments of truck—Validity—Knowledge of accused was not proved by prosecution through any cogent evidence either oral or documentary—Prosecution simply proved his presence in truck with co-accused and mere presence of accused in vehicle was not sufficient to saddle him with recovery of huge quantity of narcotics—Prosecution failed to prove guilt of accused by proving his connectivity or any nexus with his co-accused or his conscious knowledge about concealed contraband narcotics—Such important aspect of case escaped notice of Trial Court and thereby reached to wrong conclusion by convicting the accused—Findings of Trial Court regarding conviction and sentence of accused were set aside and he was acquitted of the charge—Appeal was allowed in circumstances.

2015  PLD  157   PESHAWAR-HIGH-COURT

SAYYAR VS State

Ss. 9(c) & 25—Recovery of narcotics—Appreciation of evidence—Conscious possession—Proof—Police witnesses—Chars weighing 15 kilograms was recovered from concealed cavity of vehicle driven by one of the accused—During investigation police arrested three accused two were travelling in the car while the third was alleged to be the person who had hired the vehicle—Trial Court convicted two accused and sentenced to imprisonment for life while the third who was travelling on passenger seat was acquitted as he was blind—Validity—Narcotics was recovered from conscious possession of accused driver of vehicle, which had been proved by prosecution beyond any reasonable doubt through cogent, reliable and convincing evidence—No mala fide or ill will of police officials existed against accused—Police witnesses in such like circumstances were as good witnesses as any other private person—Single dent in prosecution case was sufficient ground for acquittal of any accused—Standard of proof against accused facing charges under offence carrying capital punishment should have been above board, cogent and reliable—No person could be held responsible and convicted on uncorroborated circumstantial/shaky evidence—Prosecution did not succeed in bringing home the guilt of accused beyond reasonable doubt and benefit of the same was extended to accused who had hired the vehicle—High Court maintained conviction and sentence awarded to driver of the vehicle while accused who alleged to have hired the vehicle was acquitted of the charge—Appeal was allowed accordingly.

2015  YLR  2711   LAHORE-HIGH-COURT-LAHORE

SANAULLAH alias HAJI SARDAR VS State

Ss. 9(c) & 15—-Criminal Procedure Code (V of 1898), Ss.164 & 265-I—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4—Penal Code (XLV of 1860), S. 120-A—Prohibition on possession, trafficking or financing, import and export aiding, abetment or association, manufacturing, of narcotic drugs, etc, and criminal conspiracy—-Appreciation of evidence—Power to record statements and confessions—Statement of accused recorded in contravention of provisions of S.164, Cr.P.C—Principles—Conviction on basis of mere presump-tion—Procedure in case of previous conviction—Benefit of doubt—Case was registered against accused persons after information received from foreign country where heroin was alleged to have been recovered from carrier of one of co-accused persons—During investigation of said case, ten grams of heroin was also alleged to have been recovered on pointation of accused persons from house of co-accused—Cash amount was also alleged to have been recovered from present accused—Trial court, having convicted accused under Ss.9(c) & 15 of Control of Narcotic Substances, 1997, sentenced them to imprisonment for three years—Statement of accused recorded under S.164, Cr.P.C., which had resulted into commencement of inquiry, was not sufficient to prove guilt of present accused, as no concrete link was established from said statement with main accused, who had been arrested in foreign country—Magistrate, while recording said statement, had committed glaring illegalities and failed to comply with any of requirements laid down in S. 164, Cr.P.C.—Signatures of present accused had not been obtained at foot of said statement as required under the law—It appeared as if said statement had been reduced into writing after obtaining signatures of accused on blank papers, as stated both by him in his statement recorded under S. 342, Cr.P.C. and by one of prosecution witnesses—Trial court observed in its judgment that Area Magistrate had not recorded said statement of accused in accordance with mandatory provision of S. 164, Cr.P.C.—First limb of prosecution evidence was not proved in accordance with law—Conviction could not be based on such weak piece of evidence—Prosecution failed to lead any cogent evidence to prove that recovered amount from present accused had been derived from drug trafficking—Prosecution witness, who did not support prosecution case, had not been declared hostile by prosecution—Prosecution story regarding recovery of ten grams of heroin was without any substance—As per prosecution witnesses, present accused along with co-accused led to recovery of heroin from house of other co-accused; whereas, during cross-examination, it had become evident that search for alleged recovery of heroin had been conducted by Anti-Narcotics Force officials on their own on direction of investigation officer and that present accused had admittedly remained outside the house in their custody—Prosecution evidence was deficient in all respects and failed to prove any nexus of present accused with the main accused as well as with alleged recovery of recovered heroin—Findings of guilt were recorded on basis of presumptions which was not permissible under law—Prosecution had referred to previous conviction of present accused, but nothing was brought on record to that effect during trial—Previous conviction could only be proved in terms of S. 265-I, Cr.P.C.—Prosecution evidence suffered serious infirmities and lacked of any credence—Case of prosecution was full of doubts—High Court, setting aside conviction, acquitted the accused—Appeal was accepted in circumstances.

2015  YLR  2114   LAHORE-HIGH-COURT-LAHORE

Malik ABRAHIM VS State

1. 498—Control of Narcotic Substances Act (XXV of 1997), 9(b)—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4—Prohibition of narcotic drugs, import and export of narcotic drugs trafficking or financing trafficking of narcotic drugs—Prohibition of manufacture of intoxicants, owning or possessing intoxicants—Pre-arrest bail, confirmation of—Petitioner, having been spotted on secret information, was alleged to have fled away, while throwing bag containing five hundred and fifteen grams charas garda and six bottles of liquor—Petitioner had admittedly not been apprehended at spot, and it was yet to be seen if it was the petitioner or someone else who had actually fled away throwing the contraband material—Police had not cited secret informer as prosecution witness, on whose information raid had been conducted—No prima facie material was available on record with regard to identity of petitioner—Petitioner deserved confirmation of pre-arrest bail in circumstances—Bail petition was allowed accordingly.

2015  PCrLJ  1580   LAHORE-HIGH-COURT-LAHORE

State VS MUHAMMAD AZEEM alias SOHNI

Ss. 9 & 48—Criminal Procedure Code (V of 1898), S.417—Possessing and trafficking narcotics—Appeal against acquittal—Reappraisal of evidence—Submission of counsel for accused was that the only question involved in the appeal related to reappraisal of evidence—Burden of proof lay heavily on the shoulders of the prosecution—Prosecution had to cover a distance between “may be true”; and “must be true”—While discharging its burden of proof, the prosecution, had to establish each single fact through cogent and convincing evidence—Findings recorded by the Trial Court could not have been so recorded on the evidence on record—Even assuming that another view could be taken against accused in respect of the charge, that could not be a ground to set aside an order of acquittal in order to succeed—State must show, that the findings recorded by the Trial Court could effectively be dislodged, and that such findings were unwarranted—Trial Court had rightly taken note of material contradictions, appearing in the evidence of the prosecution witnesses, with regard to vital parts of the prosecution case—Recovery of alleged contraband (charas) weighing 1250 grams, did not stand proved by the prosecution—Case property, which was dispatched to the office of the Chemical Examiner, was received in the office after the delay of one month and one day—Prosecution failed to give any explanation as to where the alleged samples were kept during the period of one month and one day—Grave doubt existed if the recovered narcotic was sealed and kept in a safe custody—Such circumstances created doubt about the veracity and authenticity of the report of Chemical Examiner—Prosecution evidence was not worthy of credence—Trial Court had correctly held that the charge had not been brought home to the accused in view of unsatisfactory nature of evidence and contradictions in prosecution evidence,.

2015  PCrLJ  1508   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD IMRAN alias IMRANOO alias KALU SHAHPURIA VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics drugs, import and export of narcotic drugs, trafficking or financing trafficking of narcotic drugs—Bail, grant of—Further inquiry—Petitioner was alleged to have thrown away pack of eleven hundred grams of heroin while fleeing away from the scene—Contention raised by petitioner was that present case was prima facie one of further inquiry as no identification parade had been conducted—Heroin had not been recovered from possession of petitioner—Quantity of heroin allegedly recovered was slightly higher than weight mentioned in S.9(b), of Control of Narcotic Substances Act, 1997—Petitioner was no longer required for purpose of investigation—Further incarceration of petitioner was not likely to further the prosecution case—Bail application was allowed accordingly.

2015  PCrLJ  213   LAHORE-HIGH-COURT-LAHORE

GHULAM QAMBAR VS State

1. 516-A—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 15—Possession and trafficking of narcotic, aiding, abetment or an associate in narcotic offences—Destruction of case property during trial—Non-production of incriminating material before the Trial Court—Effect—Out of the seized 54 kgs. charas only 270 grams was separated and sent to the Chemical Examiner, and remaining was destroyed on the request of the prosecution with permission of the Trial Court under S.516-A, Cr.P.C. without serving any notice to accused persons or their counsel during trial—Alleged destruction being violative to the due process of law and without providing an opportunity of hearing to accused persons, lacked legal sanctity—Expression “under its supervision and control, obtain and prepare such number of samples of the property as it may deem fit for safe custody and production before it or any other court”, used in second proviso to S.516-A, Cr.P.C. was of importance—Object of said expression was obvious that the case property was at least once produced before the Trial Court before its destruction—Contrary to that, case property, in the present case was never produced before the Trial Court for preparation of sample before destruction—Non-issuance of notice to accused person before destruction of case property during the trial, was likely to cause a serious prejudice to the right of accused—Alleged destruction was violative of the due process of law.

2015  PCrLJ  213   LAHORE-HIGH-COURT-LAHORE

GHULAM QAMBAR VS State

Ss. 9(c) & 15—Criminal Procedure Code (V of 1898), S.516-A—Possession and trafficking of narcotic, aiding, abetment or association in narcotic offences—Disposal/destruction of recovered narcotic—Appreciation of evidence—Prosecution case was that 54 packets of charas weighing 54 Kgs. and 7 bottles of liquor were recovered from the Dera of accused persons—Recovered case property was not produced before the Trial Court—Out of seized 54 Kgs. charas, only 270 grams were separated and sent to Chemical Examiner, and remaining quantity was allegedly destroyed on the request of the prosecution with the permission of the Trial Court under S.516-A, Cr.P.C. without serving any notice to accused persons or their counsel during the trial—Validity—Alleged destruction of case-property being violative of due process of law and without providing an opportunity of hearing to accused person, lacked legal sanctity, which could not be endorsed—To discharge the onus of proof, it was incumbent upon the prosecution to establish that 54 Kgs. charas was recovered from the possession of accused persons; and same was kept in safe custody as incriminating material/case-property to produce the same before the court—Unless the incriminating material was produced before the court; and the court was satisfied that alleged recovery was made, sealed and kept properly in accordance with law, it would be difficult to endorse that accused could be held liable for alleged recovery—Benefit of non-production of incriminating material before the Trial Court, could not be extended to the prosecution, rather same would go to accused person—Prosecution had failed to establish its case under S.9(c) of the Control of Narcotic Substances Act, 1997 against accused—In view of the prosecution evidence with regard to securing of 270 grams of charas as sample from alleged recovered charas for chemical examination, and in the light of report of the Chemical Examiner, declaring the sample as charas, case of the prosecution was established only to the extent of 270 grams of charas against accused persons—Accused persons were liable for that quantity, which was punishable with seven years—Accused were convicted and sentenced accordingly—Accused persons having already served more than the sentence of seven years, they were ordered to be released forthwith, in circumstances.

2015  PCrLJ  150   LAHORE-HIGH-COURT-LAHORE

Mst. SADIA BIBI VS State

1. 426— Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Recovery of narcotics—Sentence, suspending of—Accused was found in possession of Charas weighing 4 kilogram which was wraped in three packets and in a sack Garda Charas was also recovered—Accused was apprehended at the spot red handed and prosecution witnesses fully supported version of prosecution—Effect—Recovery of Charas at the spot was fully proved and Chemical Examiner Report was also positive—High Court did not find it appropriate to have deeper appreciation at such stage—Accused was convicted under S. 9(c) of Control of Narcotic Substances Act, 1997, after regular trial and Trial Court came to the conclusion that prosecution had proved its case beyond reasonable doubt—High Court declined to suspend the sentence awarded to accused by Trial Court— Petition was dismissed in circumstances.

2015  YLR  2520   KARACHI-HIGH-COURT-SINDH

MUHAMMAD SALEH alias DUBI GADEHI VS State

1. 9(b)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)—Possession of narcotic—Appreciation of evidence-Benefit of doubt—Prosecution failed to produce any private independent witness, despite occurrence had taken place in day time in a locality surrounded by houses—Such omission had not been explained satisfactorily—Evidence of Police Officials, no doubt was as good as that of others, but present case depended upon evidence of Police Officials which required independent corroboration through independent witnesses, which was lacking—Delay in sending the heroin powder to the Chemical Examiner had not been explain ed—Prosecution failed to examine Police Official who took sample to Chemical Examiner—Said Police Official was not subjected to cross-examination on the point as to in whose custody, sealed parcel of sample of contraband remained lying during intervening period of two months and seven days; whereas that exercise was required to be completed within 72 hours of the recovery, under R.4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001—Prosecution witnesses, not only contradicted each other, but were not trustworthy— Trial Court did not appreciate the evidence properly—Prosecution having failed to prove its case against accused, impugned judgment was set aside and accused was acquitted of the charge, extending him benefit of doubt—Bail bond of accused stood cancelled, and surety was discharged, in circumstances.

2015  YLR  2284   KARACHI-HIGH-COURT-SINDH

ALAMGIR VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Truck, driven by one of accused persons, had been found to be loaded with contraband material—Possession of narcotic with accused persons could not be denied, as they had been found controlling vehicle, loaded with contraband material—Physical possession and/or constructive possession of the narcotic material, would make the possessor liable to be punished—Not necessary that possession should be physical—Contention that as driving licence was not recovered from the possession of accused, he could not be termed as driver of the truck, was without force, as accused was driving the truck—Driving was an art and it was not coupled with the licence, which was merely a legal authority to do that particular act—One having no driving licence could not be said to be not a driver—Contention that none of accused persons was the owner of the vehicle, was not tenable in circumstances—Not necessary that the driver should also be the owner of the vehicle, or that only owner of the vehicle was liable for holding the contraband material; and the driver could not be saddled with any liability—Driver, who was in actual possession of the vehicle and the material, was responsible; the owner could also be guilty in some cases, but not necessary in every case—Witnesses in the case who were Excise officials were also good witnesses like others—Said witnesses could be disbelieved, if they were shown to be inimical and/or interested—No animosity appeared to have been alleged against the witnesses, their testimony could not be discarded—Prosecution had proved its case against accused persons beyond any shadow of doubt and the Trial Court had appreciated the evidence in accordance with the settled principles of law—Judgment of the Trial Court being based upon sound reasons same required no interference, and was maintained, in circumstances.

2015  YLR  2163   KARACHI-HIGH-COURT-SINDH

SHAFQUAT MEHMOOD VS State

Ss. 9(c) & 25—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)—Possession of narcotic—Appreciation of evidence—Benefit of doubt—Non-association of private witnesses during arrest and recovery proceedings—Delay in sending samples for examination—Contradictions in evidence of prosecution witnesses—Effect—Accused was allegedly apprehended by police and found in possession of 2 kilograms of charas—Trial Court convicted and sentenced accused under S. 9(c) of Control of Narcotic Substances Act, 1997—Validity—One of the prosecution witnesses stated that 10 to 15 people were gathered at the place of incident—Complainant in his examination-in-chief stated that no private persons were available at place of incident because of which he nominated police officials as mashirs, however complainant in his cross-examination stated that 20 to 25 persons were available at the time of incident—Such contradictions created dent in the prosecution case—Even if complainant’s version that 20 to 25 people were present was admitted, then question was as to why no private persons was picked as mashir of arrest and recovery—Although for cases under Control of Narcotic Substances Act, 1997 private witnesses were not necessary and police officials were good witnesses, but in the presence of private witnesses prosecution did not explain how the police assumed the role of mashirs—Record also did not show whether private person were asked to act as mashirs, rather it was admitted by one of the prosecution witnesses in his cross-examination that private persons, who had gathered at the spot, were not approached to act as mashirs—Delay of 8 days in sending samples to Chemical Examiner was not explained, despite the fact that under R.4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001 such exercise was to be completed within 72 hours of the recovery—Weight of narcotic sent for chemical examination did not tally with the weight disclosed in the deposition of prosecution witnesses—Benefit of doubt was extended in favour of accused and he was acquitted of the charge—Appeal was allowed accordingly.

2015  YLR  2085   KARACHI-HIGH-COURT-SINDH

GHULAM ABBAS JAMALI VS State

Ss.9(b) & (c)—Control of Narcotic Substances (Government Analysts) Rules 2001, R. 4 (2)–Criminal Procedure Code (V of 1898), S.103—Recovery of narcotics—Appreciation of evidence—Delay in dispatching samples–Recovery witnesses—Charas weighing 1000 grams was recovered from accused who was convicted by Trial Court under S. 9(c) of Control of Narcotic Substances Act, 1997, and was sentenced to five years imprisonment—Plea raised by accused was that delay in sending Charas to Chemical Analyser was intentional and there was tampering with case property—Validity—Prosecution failed to explain such delay in sending case property to Chemical Analyser, as per R.4(2) of Control of Narcotic Substances (Government Analysts) Rules 2001, such exercise was to be completed within seventy two hours of recovery—Positive chemical report would not improve prosecution case in such circumstances—Narcotic substance allegedly recovered was 1000 grams and the offence fell under S. 9(b) and not S.9(c) of Control of Narcotic Substances Act, 1997—Trial Court without applying judicial mind framed charge against accused under S.9(c) of Control of Narcotic Substances Act, 1997, and also convicted and sentenced him under S. 9(c) of Control of Narcotic Substances Act, 1997—Courts were not to act mechanically nor to conduct trial in a mechanical manner—Private persons were available around place of recovery at the relevant time but they were not associated by complainant/investigating officer in recovery proceedings, therefore, independent corroboration was essential—Prosecution failed to prove its case against accused by bringing trustworthy convincing and coherent evidence for the purpose of awarding conviction to accused—Trial Court had recorded conviction without legal evidence and High Court extended benefit of doubt in favour of accused—High Court set aside conviction and sentence awarded to accused by Trial Court and he was acquitted of the charge—Appeal was allowed in circumstances.

2015  YLR  1668   KARACHI-HIGH-COURT-SINDH

MUHAMMAD UMAR VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Evidence of prosecution witnesses had gone unshaken, despite the fact that they were subjected to a lengthy cross-examination—Entries appeared to have been produced to substantiate the movements of the officials; and report of Chemical Analyzer had also been produced, which had established that the parcel, sent to him contained charas—Physical possession and/or constructive possession of the narcotic material, had made the possessor liable to be punished—Possession should not necessarily be physical—Truck, driven by accused, having been found to be loaded with contraband, possession thereof with accused could not be denied, who had been controlling the truck—Contention that driving licence having not been recovered from the possession of accused, he could not be termed as the driver of the truck, was without any fence, as said accused was driving the truck was repelled—Driving was an art and it was not coupled with the licence, which was merely a legal authority to do that particular act—One having no driving licence could drive a vehicle—Contention that accused was not the owner of vehicle, was not tenable, as accused was found controlling the vehicle, which was loaded with contraband material—Driver, who was in actual possession of the vehicle and the material, was responsible—Owner could also be guilty in some cases, but not necessarily in every case—Witnesses being officials of Excise Department, were also good witnesses like others, and their evidence could not be brushed aside merely for the reason of their being officials—Said witnesses could be disbelieved, if they were shown to be inimical and/or interested—No animosity having been alleged against said witnesses, in absence of such motive, there was no reason to discard the testimony of said officials—Defence plea, was unsupported by any evidence, as nothing had been adduced in substantiation thereof—Prosecution had proved its case against accused beyond any shadow of doubt—Trial Court had appreciated the evidence in accordance with settled principles of law—Judgment of the Trial Court being based upon sound reason, required no interference, and same was maintained.

2015  YLR  855   KARACHI-HIGH-COURT-SINDH

SHOAIB SULTAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.7, 8, 9 (c), 14 & 15—Import, export and trafficking of narcotic drug—Bail, grant of—Use of licence—Suspension of proceedings—Interim post arrest bail—Plea raised by accused was that proceedings before Trial Court had been suspended—Effect—No incriminating evidence was available against accused, which could justify his facing trial—Earlier order was an interim order and was subject to final order passed in those proceedings—Such situation could not justify keeping accused in custody for an indefinite period when according to both the parties no evidence of whatsoever nature was available against accused—Only licence of accused was used which was normal in market and such fact could not constitute criminal offence under Control of Narcotic Substances Act, 1997, by itself for making out a case—Incriminating evidence was necessary when a person was brought in Court to face trial—Interim post arrest bail was allowed in circumstances.

2015  YLR  398   KARACHI-HIGH-COURT-SINDH

SALEEM KHAN VS State

Ss. 9(c), 14 & 15—Smuggling of narcotic, aiding, abetment or association in narcotic offences—Appreciation of evidence—Benefit of doubt—Police Officer who was material and star witness of the entire prosecution case, was not examined by Investigating Officer—Evidence of a witness whose statement had not been recorded during the investigation, was not worth reliance—Evidence of said witness, nowhere disclosed, whether at the time of placing suitcase by accused in the container, he had noted any mark of identification on the same—Said witness had also admitted that the suit case in question was not opened, or any heroin was recovered from it in his presence—Evidence of such witness, appeared to be manoeuvered, and set up one for the reason that he not only failed to note number of vehicle wherein said suit case was allegedly brought; and could not give the number of Bay where aeroplane was parked—No other evidence was brought against accused persons—Trial Court had recorded the conviction against accused without any incriminating material/ evidence on record—Impugned judgment, was set aside, and accused persons were acquitted of the charge and were ordered to be released extending them the benefit of doubt, in circumstances.

2015  PCrLJ  1762   KARACHI-HIGH-COURT-SINDH

RUSTAM ALI PITAFI VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S.510—Possessing and trafficking narcotics—Appreciation  of  evidence—Benefit  of doubt—Non-production of report of Chemical Examiner—No report of Chemical Examiner, either in its original form or a copy thereof had been produced—Trial Court, in circumstances, could have examined the Chemical Examiner, who could have brought his own record, if any, but the Court did not consider it necessary—No Chemical Examiner’s report having been produced in the case, prosecution had been unable to establish its case under S.9(c) of Control of Narcotic Substances Act, 1997—Entire prosecution case, hinged on the fact that, whether the recovered substance, was narcotic or not, and that could be conclusively established, only by way of submitting the recovered substance to a scientific process, which was to be undertaken by a certified Chemical Examiner—Recovered substance from accused in circumstances, could not be said to be narcotic as no conclusive report  was  available  on  record—Mere  suspicion,  however,  strong could not take the place of conclusive proof—Impugned judgment passed  by  Special  Court, whereby  accused  was  convicted, was  set aside, by extending benefit of doubt to the  accused and was acquitted.

2015  PCrLJ  1402   KARACHI-HIGH-COURT-SINDH

AMEER HAMZA alias HAMZA VS State

1. 9(c)—Possessing, trafficking of narcotics—Appreciation of evidence—In view of material contradictions between the evidence of prosecution witnesses, and admission of prosecution witnesses that charas was recovered from accused, prosecution had failed to prove its case beyond any reasonable doubt—Impugned conviction and sentence could not be maintained—Judgment of conviction was set aside and accused was acquitted, in circumstances.

2015  PCrLJ  1212   KARACHI-HIGH-COURT-SINDH

MUHAMMAD YOUSAF KHARL VS PROVINCE OF SINDH through Chief Secretary Sindh

Ss. 6 & 9(c)—Criminal Procedure Code (V of 1898), S.156—Constitution of Pakistan, Art.199—Constitutional petition—Possessing and trafficking of narcotics—Quashing of proceedings—Re-investigation of FIR—Petitioners had prayed for quashing of proceedings in the case, and alternatively, they prayed for further/re-investigation of FIR—Validity—‘Alternative’ prayer should always be within four corners of main relief, because relief was always sought with reference to pleadings (narration of facts)—“Alternative” prayer/relief, in the present case, did not appear to be within four corners of main prayer/relief—Petition for quashment i.e. main prayer, had already met the fate of dismissal—Petitioner had insisted for re-investigation of the case on the basis of cell data record of Investigating Officer (witness) and urged that on the day of offence said witness (Investigating Officer) was not present at the place of incident—Petitioner claimed that they were earning million of rupees in a month having established business, therefore they could not be carrier of narcotics—First Information Report involving 300 kgs. narcotics could not be quashed, because absence of Investigating Officer and not his phone would matter—Possession of narcotics, if established, would be sufficient to prove the charge—Details of story, being believable or otherwise, was not a sufficient ground to claim re-investigation, which could not be insisted, unless prima facie it was established that Investigating Officer was motivated; and had conducted investigation, which was result of colourful exercise, mala fide and excess of jurisdiction—All the grounds, taken by the petitioners, were of such a nature that the same would fall within the meaning of ‘defence’—Accused persons, would have fair opportunity to agitate such grounds including production of relevant Cell Phone data, if any—Investigation, was the domain of the Investigating Agency, which could not be legally directed to investigate a particular line—Petitioners having filed petition before High Court on similar issue that was dismissed with cost, High Court could not sit over the order already passed, when such order was not assailed before the apex court—Petitioners had failed in establishing any exceptional circumstance, where direction for re-investigation could be ordered under Constitutional Jurisdiction, which normally was not within scope of Art.199 of the Constitution—Constitutional Jurisdiction could come into play, for help of justice, but not to shoulder wishes of one for getting a legal thing at his sketched lines—Petitioners would have ample opportunity to agitate their pleas before the competent Trial Court—Petition being not maintainable, was dismissed, in circumstances.

2015  PCrLJ  1148   KARACHI-HIGH-COURT-SINDH

REHMATULLAH alias PAPPU  VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution witnesses being Police Officials, was not sufficient to disbelieve their evidence, in the present case, evidence of said witnesses, did not find support from medical evidence—Cases of narcotics, could rest only, if it was established that articles recovered were in fact, contraband articles and not otherwise—Status of the recovery, in narcotics matters, could only be determined through Chemical Examiner, and not on mere words of the prosecution—Where chemical report was negative, or was doubtful, conviction could not legally be sustained—Prosecution witness, who was Police Official, had stated that he had not written the date of seizure, place of recovery and type over the parcels—Mistaken date was typographical, and there was every possibility that property might have been foisted upon accused persons—Such aspect created reasonable doubt to the prudent mind and shattered credibility of the witnesses—Single dent in the prosecution case was sufficient to extend benefit of such dent in prosecution case and in favour of accused persons—Impugned judgment was not maintainable under the law, and same was liable to be set aside, in circumstances—Plea of prosecution that accused who was involved in various cases of narcotics, being habitual offender, inference could be drawn against him, was repelled because mere registration of criminal cases was not sufficient to hold one as guilty—First Information Report would not declare any body to be culprit, but it was the verdict of the court of law only which could do so—Accused was to be presumed innocent, until found guilty—Order accordingly.

2015  PCrLJ  1133   KARACHI-HIGH-COURT-SINDH

ABDULLAH BHUTTO VS State

Ss. 6, 7, 8, 9(c), 14, 15 & 29—Penal Code (XLV of 1860), Ss.380, 381, 406, 408 & 409—Criminal Procedure Code (V of 1898), S.403—Qanun-e-Shahadat (10 of 1984), Art.19—Constitution of Pakistan, Art.13(a)—Possessing and trafficking of narcotics—Theft in dwelling house, theft by clerk or servant, criminal breach of trust, criminal breach of trust by clerk or servant, public servant—Double jeopardy—Appreciation of evidence—Case against accused was bifurcated in three parts, on direction of Trial Court, and challan was submitted in three counts respectively—Case under Ss.380 & 381, P.P.C. was challaned and submitted in the court of Judicial Magistrate at place ‘S’, while offence under Ss.406, 408 & 409, P.P.C. in court of Special Judge Anti-Corruption at place ‘L’ and for offence under Ss.9(c), 14 & 15 of Control of Narcotic Substances Act, 1997 in the court of Special Judge (Control of Narcotic Substances) at place ‘S’—Accused, had been finally acquitted in first two challan cases regarding theft and misappropriation of charas lying in the Record Room of a court—Section 9(c) of Control of Narcotic Substances Act, 1997, which was punitive clause, would come into play only when contravention of Ss.6, 7 & 8 of the Act, was made by accused—Person who was found in possession of narcotic, or was indulged in import and export of narcotic, or was found involved in trafficking of narcotic, could be convicted and sentenced under S.9(c) of Control of Narcotic Substances Act, 1997—Present case of the prosecution was not that accused was found importing or exporting the contraband narcotics in any manner—Contraband charas, was allegedly kept in “Malkhana” of which accused being Police Official was incharge of charas in question, which was allegedly misappropriated for monetary gains—Accused had been acquitted of the charges of misappropriation and theft by both the Trial Courts respectively—Prosecution having failed to prove the primary charges of the theft and misappropriation case of prosecution could not succeed on the same set of evidence in view of Art. 19 of the Qanun-e-Shahadat, 1984, merely for the reason of the act of possessing and trafficking the contraband charas—Accused having already been acquitted by two different courts of the charges of theft and misappropriation in the same crime, therefore, rule that no one would be vexed twice for the same offence, was fully applicable in the present scenario of the case—Conviction and sentence awarded to accused by the Trial Court, were set aside, and accused was acquitted of the charge and his bail bond stood cancelled and surety was discharged, in circumstances.

2015  PCrLJ  1053   KARACHI-HIGH-COURT-SINDH

MUDASSIR IQBAL VS State

Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c) & 25—Possessing and trafficking of narcotics—Bail, refusal of—No animosity was alleged against complainant/Police Official to foist the alleged narcotics material upon accused—Application of S.103, Cr.P.C. in the narcotic cases, having been excluded by virtue of provisions of S.25 of Control of Narcotic Substances Act, 1997, non-inclusion of any private witness was not serious defect to make the ground of bail—Mens rea of accused was to be gathered from deep appreciation of evidence, which was not permitted at bail stage—Case of accused did not fall within the prohibited clause of S.497, Cr.P.C. in circumstances—On five occasions, case was adjourned, either on the request of accused side or due to absence of defence counsel, delay in trial of case, in circumstances was also attributed to accused, which disentitled him to bail, even on the ground of alleged delay in trial—Bail application of accused, being devoid of merits, was dismissed, in circumstances.

2015  PCrLJ  1044   KARACHI-HIGH-COURT-SINDH

Mir NAWAZ VS State

1. 9(c)—Possessing and trafficking of narcotic—Appreciation of evidence—Prosecution witnesses i.e. the complainant and Mashir of the arrest and recovery, had supported the prosecution case, and there appeared no infirmity in their evidence—Said witnesses did not differ from each other in respect of place of incident, time of occurrence, manner of incident, arrest of accused and recovery of narcotic substance from accused person—Contradictions pointed out by the counsel for accused persons, were minor, and were not fatal to the prosecution case—Defence counsel could not shatter the evidence of prosecution witnesses, who remained in line—Accused did not bring anything on record to show enmity or ill-will on the part of the prosecution witnesses to falsely implicate them, and foist such large quantity of the charas upon them—Was unbelievable that accused who were taking the truck were not in the knowledge of the material kept therein—Accused were apprehended on the spot along with 49 Kilograms, out of which 100 grams were separated from each packet, and were sent for Chemical Examiner on the same day, and the report of Chemical Examiner was in positive—Prosecution was able to prove its charge against accused persons beyond shadow of doubt—Conviction of accused persons by the Trial Court, did not suffer from any illegality or infirmity—No ground being available to interfere in the impugned judgment, appeal was dismissed.

2015  PCrLJ  300   KARACHI-HIGH-COURT-SINDH

Syed RIAZ HUSSAIN SHAH VS State

Ss.6, 9(c), 25 & 29—Criminal Procedure Code (V of 1898), S.103—Possessing and trafficking narcotics—Appreciation of evidence—Applicability of S.103, Cr.P.C.— Scope— Both the prosecution witnesses had deposed in detail about the day of the incident, and their evidence was consistent with each other—Both witnesses were subjected to lengthy and exhaustive cross-examination, but defence was unable to shatter their evidence, which otherwise was confidence inspiring—Said witness deposed that accused persons were available at their homes; and a huge quantity of narcotics was recovered—Prosecution had discharged its onus as per S.29 of the Act and had successfully established the recovery of the contraband, the source of information, and was consistent about the departure from Police Station and arrival at the spot—Evidence against accused persons did not suffer from any contradiction—Accused persons had been unable to disprove the allegations levelled against them—Application of S.103, Cr.P.C. had been excluded under S.25 of Control of Narcotic Substances Act, 1997—Technicalities of procedural nature, were to be ignored as special law would prevail over the general law—Prosecution witnesses having fully implicated accused persons, there was no reason for false involvement and Trial Court was left with no option, but to pass conviction to accused persons—In absence of any illegality, impropriety, misreading or non-reading of evidence, conviction and sentence awarded to accused persons, was just and proper and same were maintained.

2015  PCrLJ  235   KARACHI-HIGH-COURT-SINDH

ABDUL QADIR VS State

Ss. 9(c), 20 & 21—Criminal Procedure Code (V of 1898), S.103—Recovery of narcotic substance—Appreciation of evidence—Private witnesses, non-association of—Benefit of doubt—Chemical (diazepam) weighing 248 kilograms was allegedly recovered from vehicle being driven by accused, who was convicted and sentenced to imprisonment for life by Trial Court—Validity—Prosecution did not associate any private witness of the area from where alleged recovery of chemical substance and arrest of accused was made on the basis of previous spy information in day time (4-00 p.m.) at a very thickly populated area—No explanation in such regard was made in F.I.R., memorandum of arrest, challan (investigation report), or in evidence of prosecution witnesses, who were all police officials, hence violated express provisions of Ss. 20 & 21 of Control of Narcotic Substances Act, 1997, read with S.103, Cr.P.C.—Prosecution did not examine person on whose spy information, accused was allegedly transporting chemical substance (diazepam) in 10 drums in huge quantity i.e. 248 kilograms in vehicle, nor produced vehicle or its key before Trial Court as case property—Owner of vehicle was neither cited as prosecution witness nor his evidence was recorded to support their case or to establish any connection of accused either with vehicle or with chemical substance (diazepam), which was allegedly recovered from the car—Prosecution failed to establish its case against accused without reasonable doubt, whereas judgment passed by Trial Court suffered from legal defects, hence not sustainable in law—High Court set aside judgment passed by Trial Court and accused was acquitted of the charge—Appeal was allowed in circumstances.

2015  PCrLJ  143   KARACHI-HIGH-COURT-SINDH

RIAZ AHMED VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Benefit of doubt—Property was sent to the Chemical Examiner with the delay of three months and five days, and no plausible justification was available on record to show the reasons of said delay—Such aspect was sufficient to cause the dent in the prosecution case—Registration of F.I.R., two days prior to the incident, had indicated the enmity between Police Officials and accused party—False involvement of accused in circumstances, could not be ruled out—Contradictions pointed out by counsel for accused was an admitted fact—Single dent in prosecution case, was sufficient to acquit accused—Miscarriage of justice, could arise from acquittal of the guilty and no less from conviction of the innocent—Impugned judgment whereby the sentence was awarded, was set aside and accused was acquitted by extending him benefit of doubt.

2015  PCrLJ  30   KARACHI-HIGH-COURT-SINDH

NOOR MUHAMMAD VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Ocular account was submitted by three officials, and such account of the evidence had gone unshaken, despite said witnesses were subjected to the lengthy cross-examination—Entries appeared to have been produced to substantiate the movement of said officials, and report of chemical analyst had also been produced, which had established that the parcel sent to him was charas—Truck driven by one of accused persons, having been found to be loaded with contraband material, possession thereof could not be said that same was not to be with accused persons, who had been controlling the Truck—Not necessary that the driver should also be the owner of the vehicle, or that only owner of the vehicle was liable, and the driver could not be saddled with liability—Driver who was in actual possession of the vehicle and the material, was responsible; the owner of the truck could also be guilty in some cases, but not necessarily in every case—Officials were also good witnesses like others, and their evidence could not be brushed aside merely for the reason of their being officials; they could be disbelieved, if they were shown to be inimical, and interested—No animosity was alleged against the witnesses—In the absence of such motive, there was no reason to discard the testimony of the officials—Evidence having gone unshaken, mere delay in sending the sample could hardly be of any importance—Case against accused persons, having been proved, they were rightly convicted and sentenced.

2015  PLD  250   KARACHI-HIGH-COURT-SINDH

HASSAN VS State

1. 403—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4—Possessing, trafficking of narcotics, and owning or possessing intoxicant—Principle of double jeopardy, applicability of—Police lodged F.I.R. against the petitioners/accused persons under Ss.6, 9 of Control of Narcotic Substances Act, 1997—Police after completion of investigation, submitted three challans; one for offence pertaining to 8 Kgs Bhang under Ss.6, 9(a) of Control of Narcotic Substances Act, 1997 in the court of one Judicial Magistrate while second challan for offence pertaining to 900 bottles of Desi Liquor under Arts.3, 4 of Prohibition (Enforcement of Hadd) Order, 1979 was submitted before the court of a different Magistrate—Third challan pertaining to 53 Kgs charas, 20 Kgs heroin powder and 49 Kgs chemical powder was submitted before the Special Court, Control of Narcotic Substance—Accused who were acquitted by both the courts of Judicial Magistrates on merits, had claimed that their trial before the Special Court, was not competent—Contention of accused persons was, that since facts and witnesses were the same there could be no subsequent trial, particularly when they stood acquitted by two different courts on same set of facts and witnesses—Validity—Accused could not claim benefit of S.403, Cr.P.C. only by establishing or pleading that their subsequent trial was on same set of facts/acts, and same set of witnesses, but what mattered was trial for the same offence—Accused had never questioned/ challenged separate submissions of challans, rather effers were made to have the cases of lesser punishment concluded earlier—Accused continued with their trial for different offences, before Magisterial Courts; without any plea of prejudice, but ever since on acquittal from such offences, they dressed up with a plea that their trial for a heinous offence, on same facts, amounted to vexing them twice—Acquittal, or conviction, arising out of same facts, for an offence of lesser punishment, would not bring S.403, Cr.P.C. into operation, on two folds i.e.; punishment was one of the criteria, which would make difference in offences; and such difference would also decide competence of a court to try the offence—In the present case, pending trial was not only for the offence of different nature from that already faced by accused persons, but also the case property was different for which accused had never faced trial—Pending trial of accused persons for an offence under S.9(c) of Control of Narcotic Substances Act, 1997, was not illegal, despite their acquittal for offences under S.9(a) of said Act, and Art.4 of Prohibition (Enforcement of Hadd) Order, 1979, nor such acquittal would cause any influence upon the merits of trial of accused persons for such offence—Petition being devoid of merits, was dismissed, in circumstances.

2015  PLD  250   KARACHI-HIGH-COURT-SINDH

HASSAN VS State

1. 403—Control of Narcotic Substances Act (XXV of 1997), S.9—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4—Possessing trafficking of narcotics, and owning or possessing intoxicant—Principle of double jeopardy, application of—Control of Narcotic Substances Act, 1997, nowhere provided punishment for possessing desi liquor, but punishment thereof had been provided under Arts.3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979—Offence under said Articles of the Order, was triable by the court of Magistrate, and was distinct offence from that mentioned/provided under the Control of Narcotic Substances Act, 1997 thus trial of accused for such offence and acquittal thereof, was not helpful for accused to press the provision of S.403, Cr.P.C. in a trial of different offence i.e. offence falling within meaning of S.9(c) of Control of Narcotic Substances Act, 1997 by Magistrate in a case of possession of 8 Kg Bhang—Section 403, Cr.P.C., could not legally come into play to quash the trial proceedings relating to offence, punishable under S.9(c) of Act, 1997 regarding different property; because the provision of said section would revolve around two material phrases i.e. same offence, and trial of offence by a court of competent jurisdiction.

2015  MLD  424   KARACHI-HIGH-COURT-SINDH

NASEEB GUL PATHAN VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—No material discrepancy was pointed out by the defence counsel—One of the prosecution witnesses, who was Assistant Excise and Taxation Officer, fully supported the version of F.I.R. and recovery of charas and opium from possession of accused—Other prosecution witness, who was Excise constable, corroborated the evidence of witness and though lengthy cross-examination was conducted at the trial, but no material contradiction was pointed out in the statement of both the witnesses, so as to create a dent in the prosecution case—No enmity ill-will or grudge had been alleged or proved against the prosecution witnesses to falsely implicate accused, despite lengthy cross-examination—Prosecution had been successful to bring home the guilt of accused to the hilt by placing ocular account, recovery of narcotics material, the Chemical Examiner’s report—Defence having failed to make any dent in the prosecution case or any material contradiction fatal to prosecution case, appeal filed by accused was dismissed, in circumstances—Accused and his family, were extremely poor people, and his family members were virtually starving due to confinement of accused in jail—As per jail roll, accused had served sentence of 14 years, 4 months and 4 days, including remissions—Accused was first offender and had no previous criminal record/history to his credit—Sentence of life imprisonment, was reduced to one already undergone, and fine was also remitted.

2015  MLD  383   KARACHI-HIGH-COURT-SINDH

ABDUL AZIZ VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Penal Code (XLV of 1860), Ss. 324 & 353—Possession of narcotic, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty—Bail, refusal of—Foisting of large quantity of narcotic by police not explained—Enmity/mala fides of police not established—Effect—Police recovered 70 kilograms of charas from a tractor being driven by accused and co-accused persons—Accused and co-accused persons also allegedly fired at the police party—Admittedly accused was present at the spot and huge quantity of charas was recovered from his possession—Accused was named in the F.I.R. and failed to submit any evidence to substantiate that he had been involved in the offence due to enmity or mala fide of police—Report of chemical examiner was positive—Accused also failed to explain as to how due to alleged enmity with police such huge quantity of narcotic could be foisted upon accused—Case of co-accused who had been granted bail was on a different footing to that of accused, therefore, rule of consistency was not applicable in the present case—Alleged offence also fell within the prohibitory clause of S. 497(1), Cr.P.C.—Bail application of accused was dismissed in circumstances.

2015  PCrLJ  1340   ISLAMABAD

ASAD JAVED VS FEDERATION OF PAKISTAN through Secretary Interior

Ss. 9(2) & 13—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Penal Code (XLV of 1860), S. 57—Constitution of Pakistan, Art. 199—Constitutional petition—Conviction by foreign court—Reduction in sentence—Scope—Remissions, entitlement of—Petitioner was convicted by Court in United Kingdom for transporting 195 kilograms of cocaine (drug) and was sentenced to 25 years of imprisonment—After serving out about six years in foreign prison he was transferred to Pakistan to serve out remaining sentence—Petitioner sought reduction in his sentence on the plea that in Pakistan sentence for the offence he was convicted was lesser than that was imposed by foreign Court and also claimed to be entitled to remissions in his sentence—Validity—Where quantity of narcotic drug had exceeded 10 kilograms, the proviso to S.9(c) of Control of Narcotic Substances Act, 1997, mentioned that punishment would not be less than imprisonment for life—Quantity of narcotic drug involved was 195 kilograms, was above the specified 10 kilograms, therefore, he would not have been punished with lesser sentence—Imprisonment for life in Pakistan, under S.57, P.P.C. was reckoned as equivalent to 25 years—Sentence awarded to petitioner by foreign Court could not be termed excessive or incompatible with any law of Pakistan—Reduction of sentence on the basis of foreign laws was not tenable as those laws were not enforceable in Pakistan and through S. 9(2), Transfer of Offenders Ordinance, 2002, after transfer of convict to Pakistan the sentence was enforced in accordance with laws of Pakistan—No distinction was made by S.9(2) of Transfer of Offenders Ordinance, 2002, between period served by transferred offender in sending countries or the period was required to be served in Pakistan—Sentence was taken as a whole and for enforcement it remained subservient to Pakistani  law— Petitioner  was  entitled  to  avail  remissions  allowed in  Pakistan  for whole sentence period i.e. period served in foreign country  as  well in Pakistan—High Court directed the authorities to re-issue Roll of Sentence after going through the record—Petition was disposed of accordingly.

2015  PCrLJ  1072   Gilgit-Baltistan Chief Court

ASHRAF HUSSAIN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4—Possessing and trafficking narcotics—Bail, refusal of—Police recovered charas weighing 18 Kilograms of the value of about Rs.8,00,000 from accused, and submitted incomplete challan for trial of accused under S.9(c) of the Control of Narcotic Substances Act, 1997—Subsequently Police filed complete challan for trial of accused under Arts.3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979—Both laws “Control of Narcotic Substances Act, 1997 and Prohibition (Enforcement of Hadd) Order, 1979”, were in field in Gilgit-Baltistan—Government had established Anti-Narcotic Force for controlling narcotic trafficking in Gilgit-Baltistan—Section 9(c) of Control of Narcotic Substances Act, 1997, provided harsh punishment for offences of narcotic trafficking as compared to the punishment provided in corresponding Ss.3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979—In the present case, as the quantity of the charas (18 Kilograms) allegedly recovered from accused was heavy quantity, S. 9(c) of Control of Narcotic Substances Act, 1997 was the appropriate law which was attracted—Police malafidely exercised power of Anti-Narcotic Force and submitted incomplete challan under S.9(c) of Control of Narcotic Substances Act, 1997 and then final challan under Arts.3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979, to give benefit to accused—Petition for grant of bail, was refused by the Chief Court with direction for taking disciplinary action against SHO and Investigating Officer for the evident mala fide on their part in conducting the investigation of the case.

2015  MLD  1217   Gilgit-Baltistan Chief Court

KACHO ASGHAR VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4—Possessing and trafficking of narcotics—Bail, refusal of—Huge quantity of 5 Kilograms of charas, value of about Rs.2,00,000 was recovered from accused, and Police submitted incomplete challan for trial of accused under S.9(c) of Control of Narcotic Substances Act, 1997—Later on Police filed complete challan for trial of accused under Arts.3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979—As heavy quantity of charas was allegedly recovered from accused, S.9(c) of Control of Narcotic Substances Act, 1997, was appropriate law, which was attracted—Police malafidely exercised power of Anti-Narcotic Force and submitted incomplete challan under S.9(c) of Control of Narcotic Substances Act, 1997 first, and then final challan under Arts.3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979, just to give benefit to accused, as offences under Arts.3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979 did not fall within the prohibitory clause of S.497, Cr.P.C.—Mala fide on the part of Police, was glaring in circumstances—Bail petition was refused by the Chief Court with directions to the Inspector General of Police for taking disciplinary action against SHO and Investigating Officer for the evident mala fide on their part in conducting the investigation of the case.

2014  GBLR  194   SUPREME-APPELLATE-COURT

SAIF-UR-REHMAN VS The STATE

1. 497— Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking narcotics—Bail, refusal of—Information regarding the possession of drugs by accused was given by another accused who had been arrested for possession of drugs in another FIR—Recovery of the drugs had taken place in broad daylight—Prima facie case, against accused being available, bail was declined to accused, in circumstances.

2014  SCMR  1603   SUPREME-COURT

Mst. NASREEN BIBI VS State

1. 9(c)—Possession of narcotic—Reappraisal of evidence—Sentence, reduction in—Narcotic found in different bags—Separate samples to be taken from each bag—Consolidated sample taken from all bags—Effect—Accused-lady was apprehended while in possession of four bags allegedly containing 40 kilograms of poast—Trial Court convicted accused under S. 9(c) of Control of Narcotic Substances Act, 1997 and sentenced her imprisonment for life, which sentence was upheld by the High Court—Validity—F.I.R. and memo of recovery showed that a consolidated sample of five hundred grams was separated from the four bags and sent for testing—No separate sample had been secured (from each bag) and tested vis-à-vis the substance contained in each bag—Since only one consolidated sample was taken from the four bags, thus only one bag out of the four bags could be counted towards the guilt of accused—If four bags contained forty kilograms of poast, then one bag could be said to have contained ten kilograms of poast, and it was only such quantity which could be considered against the accused for the purposes of her conviction and sentence—Sentence of accused was reduced in such circumstances from imprisonment for life to that already undergone by her—Appeal was disposed of accordingly.

2014  SCMR  1603   SUPREME-COURT

Mst. NASREEN BIBI VS State

1. 9—Possession of narcotic—Sample sent for examination—Narcotic found in different bags/packets—Samples had to be secured from every bag or packet of narcotic substance, and each such sample was to be separately tested by a chemical examiner.

2014  SCMR  1165   SUPREME-COURT

RIAZ MIAN VS State

1. 9(c)—Possession and smuggling of narcotic—Reappraisal of evidence—Narcotic found in a bus—Knowledge of presence of narcotic in the bus—Driver, co-driver and conductor of the bus, liability of—Joint possession of narcotic—Scope—Charas weighing 420 kilograms and opium weighing 17 kilograms was recovered form boxes placed on the top of a bus—Owner, driver, co-driver and conductor of the bus were convicted under S. 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to imprisonment for life—Validity—Owner of the bus (principal accused), who was present in the same, provided police with the keys to the boxes, wherein narcotic had been hidden—When the owner of the bus was riding the bus and star witness of recovery had stated that baggage boxes had been booked by Adda (coach station) manager, it could not be said that under the given facts and circumstances, there was any material on record to show that baggage boxes were either kept on the roof of the bus by the cleaner and/or any of the drivers to attribute knowledge of transportation of huge quantity of narcotic—Prosecution was unable to point to any piece of incriminating evidence against the driver, co-driver and conductor of the bus to saddle them with knowledge that they were privy to commission of the subject crime—Nowhere in the F.I.R. it had been mentioned that recovered narcotic was in the joint possession of the driver, co-driver and conductor of the bus, nor in the charge-sheet they were saddled with joint possession of narcotic—Conviction and sentence recorded against driver, co-driver and conductor of the bus were set aside and they were acquitted of the charge—Appeal was allowed accordingly.

2014  SCMR  862   SUPREME-COURT

MAULA JAN VS State

1. 9(c)—Possession and transportation of narcotics—Reappraisal of evidence—Benefit of doubt—Charas gardah and charas pukhta—Accused was apprehended by police on basis of secret information and allegedly 10 packets of charas gardah were recovered from secret cavities of vehicle being driven by accused—Trial Court convicted accused under S.9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to 10 years’ imprisonment with fine of Rs. 50,000—Case property i.e. vehicle wherein narcotics were allegedly hidden was also confiscated to the State— High Court reduced sentence of accused to 7 years’ imprisonment, but maintained conviction—Validity—Accused along with case property was sent to police station before arrival of investigating officer at the spot—Packets containing narcotics opened at the time of cross-examination of witnesses were found to be of different sizes, whereas case of prosecution was that all packets were of the same size—Marginal witness of recovery memo during his cross-examination stated that it was not specifically mentioned that accused was present at the time of recovery; or that case property was sealed with five monograms; or that recovery memo was prepared at police post—Police official/witness who conducted the raid admitted in his cross-examination that in the site plan presence of accused in vehicle was not mentioned; that there was difference between charas gardah and charas pukhta; that parcels of case property were sent with three seals and not five seals; that report of chemical examiner stated that charas was brownish solid in colour, whereas packets opened in court contained charas which was not brownish solid in colour—Prosecution did not prove its case beyond any shadow of doubt—Accused was acquitted in circumstances and order of confiscation of his motor car was also set aside—Appeal was allowed accordingly.

2014  YLR  1550   QUETTA-HIGH-COURT-BALOCHISTAN

GHULAM MUSTAFA VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Raiding party, on the pointation of accused, recovered a huge quantity of ‘charas’ and opium—One of the prosecution witnesses, had given the full account of episode and produced ‘Marasila’ and disclosure memo, whereas other prosecution witness had corroborated said witness, on each and every material particular by making a detailed statement—Prosecution had established the guilt to the hilt beyond reasonable doubt—Neither there was any misreading or non-reading of evidence, nor could counsel for accused had pointed out the same—Prosecution witnesses, inspired confidence; and could not be shaken despite lengthy cross-examination—Accused had admitted that Anti-Narcotic Force, had got no grudge or ill-will against him—Not comprehensible as to why Anti-Narcotic Force, would plant such a huge quantity of narcotic against accused—Forensic Science Laboratory’s report, had proved the fact that the recovered materials were ‘charas’ and ‘opium’—Sample of ‘charas’ was 1-1/2 Kilo grams, which itself fell under S.9(c) of Control of Narcotic Substances Act, 1997; and 500 grams if treated to have been taken from one packet that was 10 Kilograms per packet, that too, attracted the sentence that had been awarded to accused—Contention that on the same set of evidence, accused had been convicted, and his co-accused had been acquitted, was of no avail, because the courts were required to ‘sift the grain from chaff’—Findings of the Trial Court, were above board and not liable to be disturbed—No illegality or irregularity could be pointed out in the impugned judgment of the Trial Court, as the court after proper appraisal of the evidence and attending each and every aspect of the case, had rightly found accused guilty—Counsel for accused, having failed to make out a case for interference, in the impugned judgment, appeal against said judgment was dismissed, in circumstances.

2014  YLR  37   QUETTA-HIGH-COURT-BALOCHISTAN

SAJJAD ALI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking narcotics—Bail, refusal of—Accused were named in the F.I.R. with a specific role attributed to them that a huge quantity of narcotics (charas) was recovered from their possession—Case against accused persons prima facie attracted the provisions of Ss.6, 7, 8 of Control of Narcotic Substances Act, 1997, punishable under S.9(c) of the Act for which the punishment was provided to death, imprisonment for life or 14 years—No authentic documents had been produced by the counsel for accused regarding case of accused to prove that accused was a juvenile—Accused were not entitled for the concession of bail, in circumstances.

2014  PCrLJ  1218   QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL HALEEM VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Statement of vehicle driver, who was a material, important and essential witness, and whose statement provided base to prosecution case, was not recorded—Half-hearted attempt was made to procure the attendance of said witness, and no effective and coercive method by way of issuing bailable and non-bailable warrants, was applied by the Trial Court—Driver, while recording statement under S.161, Cr.P.C., did mention his cellphone numbers, which was reflective of the fact that said witness voluntarily recorded his statement under S.161, Cr.P.C.; and attempted to make sure his availability to Police—District Attorney, also failed to discharge his legal obligation and responsibility, as there was no occasion for him to drop said important witness—Prosecution could not leave such an important witness which went to the root of the case, and his statement was necessary for just decision of case—By dropping that important witness, the District Attorney appeared to have exceeded his authority—By permitting prosecution to drop that witness, the Trial Court had committed material irregularity, sufficient to vitiate the impugned judgment—Impugned judgment was set aside and case was remanded to the Trial Court with the direction to procure the attendance of the driver of the vehicle; after recording his statement and the statement of accused, Trial Court should decide the case on its own merits in accordance with law.

2014  PCrLJ  267   QUETTA-HIGH-COURT-BALOCHISTAN

ALI JAN VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Prosecution had successfully established, the recovery of contraband charas and opium from the possession of accused, whose presence at the place of incident was not denied—All the three witnesses specifically stated that Anti-Narcotics Force Commander received source information about the presence of narcotic substance with accused for transportation of the same out of the country—Evidence of the prosecution was not controverted or rebutted successfully—Evidence produced by accused in their defence also described their involvement  in  the  commission  of  the  alleged offence—Accused  neither  denied  their  presence  at  the  site nor justified  their  presence,  whereas  record  had  reflected  that  none  of  them  was  permanently   residing  there—No illegality, impropriety, misreading and non-reading of the evidence was found in the impugned judgment passed by the Trial Court—Prosecution evidence was not only corroboratory but also reliable and confidence inspiring—Nothing  was  in  the  evidence  which  could  show  any ulterior motive or design to involve or implicate accused in the alleged offence—Conviction and sentence awarded to accused under S.9(c) of Control of Narcotic Substances Act, 1997 by the Trial Court, was maintained and appeal to that extent was dismissed, in circumstances.

2014  PCrLJ  267   QUETTA-HIGH-COURT-BALOCHISTAN

ALI JAN VS State

Ss.  9(c)  &  29— Possessing  and  trafficking  narcotics—Presumption—Prima facie, sole duty lay on the shoulders of prosecution to show the recovery of the contraband articles from accused; and in case of proving the factum of recovery, responsibility would shift on the shoulders of accused persons, in view of S.29 of Control of Narcotic Substances Act, 1997 to prove the fact that they had no concern or connection in recovery of contraband material or no contraband material was recovered from their possession.

2014  PCrLJ  267   QUETTA-HIGH-COURT-BALOCHISTAN

ALI JAN VS State

Ss. 9(c), 37 & 39—Possessing and trafficking narcotics—Freezing and forfeiture of assets—Amount lying in the accounts of accused had been improperly seized and confiscated, as the Trial Court failed to inquire properly and adjudicate upon the application filed under S.37 of Control of Narcotic Substances Act, 1997—Trial Court failed to put substance of the allegation to accused; and did not give the accused a chance to show that amount lying in his account was not the proceed of the narcotics—Prima facie, duty of Anti-Narcotics Force Authorities was to collect material to connect the alleged account that was maintained by accused; and showing that same was the result of the proceed of the narcotics; and that he had no other means to earn or deposit the amount—Impugned order being not legal was set aside—Application filed by the Anti-Narcotics Force under S.37 of the Control of Narcotic Substances Act, 1997, would be treated as pending before the Special Judge concerned, who was directed to observe the legal formalities as provided under S.39 of the Control of Narcotic Substances Act, 1997 and to decide the matter in accordance with law.

2014  PCrLJ  27   QUETTA-HIGH-COURT-BALOCHISTAN

ALLAUDDIN VS State

1. 9(c)—Recovery of narcotics—Appreciation of evidence—Delay in lodging F.I.R. due to practical difficulties—Charas weighing 306 kilograms was recovered from vehicle driven by accused and Trial Court convicted and sentenced him to imprisonment for life—Plea raised by accused was that F.I.R. and statements of prosecution witnesses were recorded with a delay of 7 hours—Validity—Authorities apprehended accused along with contraband Charas on 5-5-2011 at about 3-00 a.m. and due to odd hours of night, it was not possible to proceed towards police  station,  therefore,  F.I.R.   was   lodged  at 8-00 a.m. on 5-5-2011—Time of few hours elapsed due to practical difficulties, even otherwise mere delay in lodging F.I.R. was not fatal nor due to such delay prosecution derived any undue advantage—Statements of prosecution witnesses were worthy of credence and there was no occasion to disbelieve them—Variation in statements of witnesses, which were neither material nor serious enough to affect case of prosecution, were of no avail—Statements of witnesses had to be read as a whole and Court should not pick up sentences in isolation from entire statement ignoring its proper course—Judgment passed by Trial Court was well-founded and High Court maintained conviction and sentence awarded by Trial Court to accused—Appeal was dismissed in circumstances.

2014  MLD  866   QUETTA-HIGH-COURT-BALOCHISTAN

NASRULLAH VS State

1. 9(b)(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Sentence, reduction in—Recovered charas, allegedly weighing two Kilograms, was in the shape of four pieces—Five grams was separated from those pieces and sealed in a parcel—Sample from each piece should have been extracted, and same should have been sealed in separate parcel for chemical examination—If no sample was taken from any particular piece, or if different samples taken from different pieces were not sent separately for analysis to Chemical Examiner, same would not be a “representative sample”; and it would be unsafe to rely on mere word of mouth of the prosecution witnesses regarding the substances of which, no sample had been taken separately and sealed separately or tested being narcotic substance—Sample of five grams separated for chemical examination would be considered as extracted from one piece, which was considered to be 1/2 Kilogram, and only that 1/2 Kilogram, could have been considered against accused as recovered narcotics—Accused, could not have been convicted for the remaining 1/2 Kilogram charas—Conviction of accused awarded by the Trial Court for the offence under S.9(c) of Control of Narcotic Substances Act, 1997, was converted into S.9(b) of said Act; and sentence of accused was reduced from four years’ R.I. to that of one year and six months’ R.I.; and fine of Rs.20,000 was reduced to that of Rs.13,000 in circumstances.

2014  YLR  1248   PESHAWAR-HIGH-COURT

AMEER HASSAN VS State

S.9(c)—Control of Narcotic Substances (Government Analysts), Rules, 2001—Recovery of narcotic substance—Re-appraisal of evidence—Delay in dispatching samples—Charas Garda weighing 58 kilograms was recovered from gas cylinders fixed in vehicle which was being driven by one accused while remaining two were also travelling in it—Trial Court convicted all three accused and sentenced them to imprisonment for life—Plea raised by accused was that Investigating Officer had sent samples to government analysts beyond 72 hours of seizure—Validity—Failure to follow Control of Narcotic Substances (Government Analysts) Rules, 2001, could not render search, seizure and arrest under Control of Narcotic Substances Act, 1997, an absolute nullity and could not make entire prosecution case doubtful, except for the consequences provided in Rules—Provisions of Control of Narcotic Substances (Government Analysts) Rules, 2001, were directory and not mandatory so could not control substantive provisions of Control of Narcotic Substances Act, 1997—Belated dispatch of samples was not fatal to prosecution case, in absence of any objection regarding the same having been tampered or manipulated—Charge against accused persons was proved beyond any shadow of doubt and they had been rightly convicted and sentenced by Trial Court—Appeal was dismissed in circumstances.

2014  YLR  1081   PESHAWAR-HIGH-COURT

WAJID ALI VS State

Ss. 9(c), 33 & 48—Possessing and trafficking of narcotics—Confiscation of vehicle allegedly involved in offence—Special court having confiscated the vehicle being involved in the crime, appellant had sought return of the same claiming to be last purchaser of vehicle in question—Appellant neither during investigation nor during trial, bothered to apply to the concerned quarters for return of the vehicle; and it was exactly after one year of the custody of the vehicle, that appellant applied for return of the same, and that too by filing appeal—Original owners had also not applied for return of vehicle and were not aggrieved of the impugned order of confiscation—When the vehicle was taken into possession, no registration book or valid documents were produced or recovered from accused, and neither  same  were  exhibited  during  trial—Appeal claiming the return of vehicle in question being without any merits was dismissed, in circumstances.

2014  YLR  892   PESHAWAR-HIGH-COURT

IMTIAZ VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession and trafficking of narcotic—Bail, grant of—Narcotic present in boot (diggi) of vehicle—Conscious knowledge of passenger in vehicle of the presence of the narcotic—Scope—Charas weighing 19 kilograms was recovered from the boot (diggi) of a vehicle and accused was allegedly sitting on the front seat of the said vehicle, which was being driven by the co-accused—Accused was neither driver nor owner of vehicle but was alleged to be a mere passenger—Nothing was recovered from immediate possession of the accused—Neither any evidence showed that accused was in conscious knowledge of the presence of contraband in the boot (diggi) of the vehicle nor anything on record showed that he was convicted or involved in cases similar to the present one—Accused was released on bail in circumstances.

2014  YLR  879   PESHAWAR-HIGH-COURT

The STATE through Regional Director ANF VS AZIZ-UR-REHMAN

1. 497(5)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Maxim: “in favorem vitae, libertatis, et innocientiae, omnia praesumuntur”—Applicability—Petition for cancellation of bail, dismissal of—Bail was granted to accused (respondent) on medical grounds as he had allegedly suffered heart problem twice while in prison—Record confirmed that accused had been treated twice at a hospital due to serious cardiac problem—Medical documents showed that Angiography was conducted on the accused and that he would be operated for his heart disease in the near future—Illness of accused, in the present circumstances of the case, could not be doubted in view of the legal maxim “in favorem vitae, libertatis, et innocientiae, omnia praesumuntur” (all presumptions are in favour of life, liberty and innocence)—Strong and cogent reasons required for cancellation of bail were lacking in the present case—Complainant (petitioner) had not produced any record or document showing that accused had misused the concession of bail or that he did not have a heart disease—Accused was regularly attending Trial Court proceedings and he was not required for purposes of investigation—Petition for cancellation of bail was dismissed in circumstances.

2014  YLR  849   PESHAWAR-HIGH-COURT

SHEHZAD KHEZAR HAYAT VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotics—Bail, grant of—Further inquiry—Narcotic allegedly recovered from the secret cavities of a vehicle—Non-availability of Forensic Science Laboratory report in respect of recovered narcotic—Effect—Non-availability of such report made the case against accused one of further inquiry—High Court observed that present case was not the first case in which report of Forensic Science Laboratory was missing or still awaited, and due to such omission and negligence of investigating officer the accused were released on bail by the courts on such ground alone—High Court directed the concerned Advocate-General to issue directions in such respect to the prosecuting agencies to do the needful in time—Accused was granted bail accordingly.

2014  YLR  772   PESHAWAR-HIGH-COURT

AKHTAR VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking narcotics—Bail, grant of—Quantity of contraband and the expected quantum of punishment to be awarded to accused at the trial, had to be taken into account while allowing bail to accused—Punishment for less than ten Kilograms of alleged narcotic was up to fourteen years, whereas two kilograms of contraband charas had allegedly been recovered from the possession of accused—Accused was not likely to be awarded punishment for more than two years—Accused who had joined the investigation, was no more required to the Investigating Agency—Accused was neither a previous convict, nor involved in such like offences—Accused was allowed bail, in circumstances.

2014  YLR  31   PESHAWAR-HIGH-COURT

MUHAMMAD IBRAR VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—F.I.R. was lodged on the same day of occurrence—Nothing in the cross-examination of the prosecution witnesses could give impression that they were to implicate the accused falsely or were prompted by his enemies—Testimony of the said witnesses was free from any material infirmity—Vehicle carrying the narcotic was in active control of the accused—Report of Forensic Science Laboratory was available on record which showed that the stuff recovered was charas—Said report was free from doubt—At the time of seizure of vehicle and personal search of the accused, a registration book had been recovered and said vehicle was customs paid—Charge against the accused had been proved beyond  any  shadow  of  doubt—Appeal was dismissed.

2014  YLR  12   PESHAWAR-HIGH-COURT

SHAKEEL AHMED VS State

1. 9—Criminal Procedure Code (V of 1898), S.164—Possessing, import, export or trafficking of narcotics—Appreciation of evidence—Sentence, reduction in—Prosecution witnesses who furnished ocular account, were subjected to a searching and taxing cross-examination, but their testimony could not be shaken in any manner—Nothing existed in their cross-examination, which could give an impression that they were all out to involve accused persons falsely, or for that matter were prompted by their enemies to foist such huge quantity  of  narcotics  on  them—Testimony of said witnesses was far from any material infirmity—Minor discrepancies in their statements, were not fatal to the prosecution case—Confessional statement of female accused proved to be voluntary—Charge against accused persons had been proved, beyond any shadow of doubt—Accused persons, in circumstances, had rightly been convicted—Since all the three accused persons had been held guilty, it would not be fair to hold each one of them responsible for possessing the entire stuff recovered from the car—Accused persons would have to be burdened with their share in the crime, which in the circumstances of the case came to round about 6 Kg of the narcotic—While maintaining the conviction of accused persons, sentence of two male accused was reduced from life imprisonment to 5 years’ R.I. with fine—Female accused deserved leniency, her sentence was reduced from life imprisonment to 3 years’ R.I. with fine.

2014  PCrLJ  1732   PESHAWAR-HIGH-COURT

ISHAQ ALI SHAH VS State

1. 497— Control of Narcotic  Substances  Act  (XXV of 1997), S.9(c)—Khyber Pakhtunkhwa Prevention of Gambling Ordinance (V of 1978), S.6—Possessing, trafficking narcotics, Gambling—Bail, grant of—Neither accused persons were arrested on the spot, nor any incriminating articles were recovered from their possession, or on their pointation—Whether, the place of occurrence as alleged in the F.I.R., belonged to accused or otherwise would be determined during the trial after recording evidence by the Trial Court—None of the offences, with which accused persons were charged, carried punishment of 10 years and were not hit by restrictive clause of S.497, Cr.P.C.—Accused were released on bail, in circumstances.

2014  PCrLJ  1607   PESHAWAR-HIGH-COURT

TAJ MALI VS State

Preamble, Ss.9 & 29—Possessing and trafficking narcotics—Onus to prove the guilt of accused—Presumption in favour of prosecution—Control of Narcotic Substances Act, 1997, was a special law, which legislature had enacted mainly to curb the menace of narcotics, and had provided therein special provisions to achieve that end—Onus to prove the guilt of accused, had not been placed entirely on the prosecution, but on accused to prove his innocence—Legislature had cast a presumption in favour of the prosecution, which had to be rebutted  by  accused  to  prove  his  innocence— Prosecution  could not be totally absolved of his obligation; and duty of initially establishing a “prima facie” case of recovery of contraband from accused; and only after said initial burden was discharged by the prosecution that the onus would shift upon the accused to prove his innocence.

2014  PCrLJ  1607   PESHAWAR-HIGH-COURT

TAJ MALI VS State

Ss. 9(c) & 29—Possessing and trafficking narcotics—Initial obligation of the prosecution—Appreciation of evidence—Benefit of doubt—Initial burden of establishing a ‘prima facie’ connection between accused and the contraband recovered from him had not been positively carried out—Most crucial links of the chain, which established the ‘prima facie’ connection between accused and contraband, were missing in the case—Registration number of vehicle in the name of accused, or any other distinguishing feature of the vehicle from which the recovery had been made, was not recorded in evidence by any of the prosecution witnesses—Narcotic was sent to Forensic Science Laboratory giving no name of the constable—No evidence was available to suggest as to where the alleged samples of contraband were stored after their recovery—Was not known as to how alleged samples were received at the Forensic Science Laboratory—Prosecution had not offered any plausible explanation for the delay of twelve days in sending the narcotic for its chemical analysis—Alleged recovered contraband and vehicle when produced in the court, could not be definitely linked with the case—Initial obligation of the prosecution to make out a case, as per the mandate of S.29 of Control of Narcotic Substances Act, 1997, had not been carried out in the eyes of law—Trial Court was influenced by the huge quantity involved in the case and extended every possible benefit to the prosecution in contrast to the true import of S.29 of Control of Narcotic Substances Act, 1997—Law mandated that court was to be conscious of not the quantity of contraband, but the quality of evidence produced in the court for reaching a correct conclusion and just evidence of the case—Prosecution had failed to prove charge against accused beyond any shadow of reasonable doubt—Dents existed in the prosecution case, creating sufficient doubt about the alleged recovery, the benefit of which would go to accused—Impugned conviction and sentence of accused, were set aside and he was acquitted of the charges levelled against him and was released in circumstances.

2014  PCrLJ  1333   PESHAWAR-HIGH-COURT

IRFAN ALI VS State

1. 516-A— Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Superdari of vehicle used in transportation of narcotic—Scope—Police took vehicle in question into possession after 40 kilograms of charas was found from its trunk—Petitioner filed application for superdari of vehicle before Trial Court contending that he was the actual and sole owner of the same, and that there was nothing on record to show that narcotic recovered from vehicle was transported with consent, connivance or complicity of the petitioner—Said application was dismissed by Trial Court—Validity—Record did not show as to from whom petitioner purchased the vehicle in question—Trial of the case had not concluded therefore it could not be said with certainty that petitioner was not in conscious knowledge of recovered contraband—Since vehicle in question was case property of a case involving huge quantity of charas, it had to be exhibited during trial of the case and its custody could not be granted to petitioner on superdari—No material was available on record to show that petitioner was ostensible owner of the vehicle—Trial Court had rightly refused custody of vehicle on superdari to the petitioner—Revision petition was dismissed accordingly.

2014  PCrLJ  1289   PESHAWAR-HIGH-COURT

ABDUL HAMEED VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51(1)—Possession of narcotic—Bail, refusal of—Narcotic hidden in a vehicle—Packets of charas weighing 14 kilograms in total were allegedly recovered by the police from beneath the front seat of the driver, and from beneath the front and rear seats of the vehicle—Accused was driving the vehicle in question at the relevant time—Quantity of charas recovered was huge (i.e. 14 kilograms)—Case of prosecution was duly supported by statements of police officials, who were eye-witnesses of the occurrence and had no mala fide or ill-will to implicate the accused— Report of Forensic Science Laboratory was in positive—Offence alleged entailed capital punishment and fell within the restrictive clause of S. 497, Cr.P.C., and also attracted the embargo contained in S. 51(1) of Control of Narcotic Substances Act, 1997—Bail petition of accused was dismissed in circumstances.

2014  PCrLJ  989   PESHAWAR-HIGH-COURT

AMEER KHAN VS State

1. 516-A—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 32 & 33—Application for superdari, grant of—Transporting the narcotics—Contention of the applicant was that accused was his driver and he had no knowledge that his car was being used for transportation of narcotics—Application for superdari was dismissed by the Trial Court and accused was convicted and vehicle was confiscated—Trial Court was bound to look for the mens rea on the part of applicant or any contribution made by him—Record was silent as to whether any query or probe was made by raiding party or Investigation Officer to trace out that applicant had any knowledge of transporting the narcotics—Provisions of Ss. 32 & 33 of the Control of Narcotic Substances Act, 1997 was beneficial enactment to safeguard the right of innocent owner—To penalize a person in absence of mens rea would be unjust and confiscation of the vehicle would be harsh—Impugned judgment in respect of confiscation of car (only) was set aside and  case  was  remanded  to  the  Trial  Court  with  the direction to dispose of the application after proper appreciation of evidence.

2014  PCrLJ  882   PESHAWAR-HIGH-COURT

STATE through Advocate-General, Khyber Pakhtunkhwa, Peshawar VS FAROOQ

1. 9— Criminal Procedure Code (V of 1898), S. 417(2-A)—Possessing and trafficking narcotic—Appeal against acquittal—Reappraisal of evidence—Two star witnesses in the case, during their statements, and especially in their cross-examination, had totally contradicted to each other on material points—No plausible explanation of sending of contraband to Forensic Science Laboratory after the delay of about twelve days had been given—Accused was not history-sheeter and was not convicted before in similar cases—Prosecution had failed to bring home charge against accused to connect him with the commission of offence—Trial Court after taking stock of the entire material on record, arrived at the conclusion that prosecution had not been able to establish its case against accused beyond any reasonable shadow of doubt—Judgment recording acquittal, could not be held to be arbitrary or whimsical—No useful purpose would be achieved, if impugned judgment of the court below was set at naught, and case was remanded for trial de novo, because the possibility of conviction of accused was remote; and re-trial would result in futile exercise.

2014  PCrLJ  796   PESHAWAR-HIGH-COURT

MUHAMMAD HAYAT KHAN VS State

1. 9(b)— Possession of narcotics— Appreciation of evidence—Allegations against the accused were that he was possessing 950 grams of charas—Statements of the complainant and Investigating Officer did not show as to who took the contraband and accused to Police Station and that fact remained shrouded in mystery and such mysterious type of arrest and recovery of narcotics made the case of prosecution doubtful—When Investigating Officer arrived at the spot, the complainant was present there for pointation of the same, and as to why the accused and contraband were not handed over to the Investigating Officer and also the sample separated from the whole bulk of narcotics coupled with silence of both the important and material witnesses on such two facts created serious doubts that the occurrence had not taken place as narrated by the prosecution nor the investigation was free from reasonable doubt—Amendment in section of law from Arts.3 & 4, Prohibition (Enforcement of Hadd) Order, 1979 to S.9, Control of Narcotic Substances Act, 1997, made the prosecution case weak on legal side because instead of an officer with the rank of Sub-Inspector, the F.I.R., arrest and then investigation was conducted by an Assistant Sub-Inspector against the mandatory provision of law under Control of Narcotic Substances Act, 1997—Prosecution had not proved its case beyond reasonable doubt—Appeal was accepted and conviction and sentence of the accused-petitioner were set aside and he was acquitted from the charges.

2014  PCrLJ  516   PESHAWAR-HIGH-COURT

Mst. THELAY DARA VS State

Ss. 9(c) & 29—Possessing and trafficking narcotics—Appreciation of evidence—Sentence, reduction in—Contradictions and inconsistencies in the statements of the star witnesses of the prosecution, could not be considered so material so as to shatter and make doubtful the recovery of the contraband—Such discordant and conflicting portion of evidence, could at the most be termed as human error—Recovery of contraband could not be doubted, when there was no defence and explanation against, prima facie, established recovery of narcotics by accused as required under S.29 of Control of Narcotic Substances Act, 1997—No enmity of the prosecution witnesses, who were Police Officials, with accused, was ever suggested by accused—No explanation came forward from the side of accused as to for what purpose, she was present there with her co-accused, having no relation with him—In absence of any such explanation and simple denial by accused, would be sufficient to prove her guilt—Weight of recovered substance, was less than the quantity as prescribed in proviso to S.9(c) of the Control of Narcotic Substances Act, 1997—Accused, in circumstances,  had  become entitled to the benefit of a borderline case—Accused was a first offender having no previous history of being involved in such like cases—Accused being woman, would deserve leniency—Sentence awarded to accused being too harsh, called for reduction—Maintaining conviction of accused, her sentence was reduced from ‘Twenty-Five’ years R.I. to ‘Ten’ years R.I., and that of fine from Rs.1,00,000 to Rs.50,000.

2014  PCrLJ  494   PESHAWAR-HIGH-COURT

SHAH ZAIB VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking narcotics—Bail, grant of—Contrabands, were recovered from the secret cavities made in the car, while no incriminating piece of evidence was available on record to prima facie connect accused, either with the ownership, possession of contraband or the car—Mere presence of a person in a car, did not mean that he was involved in trafficking the narcotics in question—Both the accused hailed from one and the same area while the principal accused was a taxi driver, prudently, if assessed, the possibility could not be ruled out that accused might have engaged him to lead him to his house—Irrespective of the quantity of the recovered narcotic substances, quantity would not be a yardstick for the purpose of granting bail or otherwise; court had to pay due consideration to the facts of the case individually in order to arrive at just and fair conclusion in dispensation of justice—Accused as per the prosecution case, was of 16/17 years of age and fell within the definition of “juvenile person”—Accused being first ever involved in such like case, and he had no criminal history instead of keeping a juvenile in judicial lock-up, justice demanded to be dealt with a lenient view—Petition of accused was accepted and he was admitted to bail.

2014  PCrLJ  454   PESHAWAR-HIGH-COURT

SALAM NOOR VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, refusal of—Narcotic hidden in a vehicle—Driver of vehicle, liability of—Conscious knowledge of presence of narcotic—Scope—Accused was driving a truck, which was stopped at a police checkpoint—Upon search of the truck 40 packets of narcotic weighing 40 kilograms were found from the spare tyre of the vehicle—Plea of accused was that he did not have any conscious knowledge of the narcotic in the spare tyre, and that co-accused, who was  sitting  in the front seat of the truck, had already been granted bail—Validity—Driver of the vehicle was supposed to be custodian of the same—Merely shrugging of shoulders by the accused that he had no conscious knowledge of what was present in the spare tyre of the vehicle was a self-defeating argument—Report of Forensic Science Laboratory in respect of all the samples was in the affirmative—Case of accused was different from the co-accused, who had been granted bail on the grounds that he was not driver of the vehicle, therefore, he could not be saddled with responsibility of possession of contraband recovered from spare tyre of the vehicle—Accused was prima facie connected with the commission of the offence—Bail petition was dismissed accordingly.

2014  PLD  186   PESHAWAR-HIGH-COURT

FAZAL KARIM VS POLITICAL AGENT KHYBER AGENCY

1. 9(c)—Constitution of Pakistan, Arts. 199 & 247—Constitutional jurisdiction—Federally Administered Tribal Areas—Bar on trial—Scope—Possession of narcotics—Trial of offence under Control of Narcotic Substances Act, 1997 by Political Agent—Scope—Offence under the Control of Narcotic Substances Act, 1997 was triable by the authority who was competent to try offence under the Frontier Crimes Regulation—Offence under the Control of Narcotic Substances Act, 1997 could competently be tried by Political Agent and appeal/revision lay to the same hierarchy—Jurisdiction of High Court had been ousted in the matters of Federally Administered Tribal Areas—Neither the High Court nor the Supreme Court might entertain any matter pertaining to the tribal areas—Constitutional petition was dismissed, in circumstances.

2014  MLD  777   PESHAWAR-HIGH-COURT

SALEEM VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 20—Pakistan Arms Ordinance (XX of 1965), S. 13—Possession of narcotic, power to issue warrants for search, possession of illegal weapons—Bail, grant of—Further inquiry—Police raid on basis of prior information—Non-obtaining of search warrants—Non-association of private witnesses from the locality—Effect—Police on basis of spy information raided house of accused and allegedly recovered illegal weapons, ammunition and narcotics—Despite prior information no search warrants under S. 20 of Control of Narcotic Substances Act, 1997, was obtained by the Inspector/Station House Officer before entering into the house of accused—Station House Officer who conducted the raid had not recorded grounds and reasons, as to why he avoided obtaining search warrants under S. 20 of Control of Narcotic Substances Act, 1997—Purpose of said section was to safeguard the right of privacy of a citizen, which should not be allowed to be violated at the whims of a police officer—Recovery was effected from accused on basis of prior information but no witness from the locality was associated with the recovery proceedings—Case required further inquiry and accused was released on bail, accordingly.

2014  MLD  745   PESHAWAR-HIGH-COURT

FAKHR-E-ALAM VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic—Bail, grant of—Trial Court not complying with directions of High Court regarding conclusion of trial within a time frame—Effect—Bail petition of accused was dismissed by High Court with a direction to Trial Court to conclude trial within one month—Trial Court failed to conclude trial within one month—Order sheets of Trial Court showed that case was lingering on due to absence of prosecution witnesses and the accused was not at fault for unnecessary adjournments—Accused was admitted to bail in circumstances.

2014  MLD  705   PESHAWAR-HIGH-COURT

SHAKEEL KHAN VS State

Preamble, Ss.9 & 29—Purpose and nature of Control of Narcotic Substances Act, 1997—Onus to prove guilt of accused—Control of Narcotic Substances Act, 1997, was a special law, which the legislature had enacted mainly to curb the menace of narcotics in the country; and had provided therein special provisions to achieve the said end—Onus to prove the guilt of accused had not been placed entirely on the prosecution, but on accused to prove his innocence—Legislature had cast a presumption in favour of the prosecution, which had to be rebutted by accused to prove his innocence—Prosecution could not be totally absolved of its obligation and duty of initially establishing a “prima facie” case of recovery of contraband from conscious possession of accused—Only after said initial burden was discharged by the prosecution, that the onus would shift upon accused to prove his innocence.

2014  MLD  705   PESHAWAR-HIGH-COURT

SHAKEEL KHAN VS State

Ss. 9(c) & 29—Possessing and trafficking of narcotics—Appreciation of evidence—Recovery of huge quantity of narcotics was proved by direct ocular testimony of the recovery officer, further confirmed by marginal witness—Manner, mode and place of recovery of contraband from motor car driven by accused had been proved to the hilt by convincing prosecution evidence—Recovered contrabands were properly sent and received for chemical examination at Forensic Science Laboratory on the next day of its recovery and result thereof was also positive—All the witnesses were consistent regarding their testimony and corroborated each other on material particulars—No evidence in rebuttal had been brought on record by accused—Accused having been suffering from Hepatitis, Jail Authorities as well as Medical Officer, were directed to take his extraordinary care; and if needed, accused be periodically shifted to the hospital for medical treatment.

2014  MLD  690   PESHAWAR-HIGH-COURT

FAKHAR ZAMAN VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Sentence, reduction in—Mitigating circumstances—Five witnesses examined by the prosecution to prove its case, had given a vivid account of the occurrence in the court—No discrepancy was noticed in the statement of any of the witnesses as could create doubt in the prosecution version—All the witnesses were subjected to a searching cross-examination—Nothing was on record as could even remotely suggest that the incriminating substance was either planted, or accused was falsely charged and there was no doubt as to the guilt of accused—Accused who was a young man, was sentenced to life imprisonment—Accused besides being a patient of Hepatitis-C was also a first offender, having no history of being involved in narcotics cases—Material available on record showed that the accused appeared to be a carrier—Role and conduct of accused, in circumstances, would call for lesser punishment—While maintaining conviction of accused, his sentence was reduced from life imprisonment to ten years’ R.I., by leaving the fine and benefit of S.382-B, Cr.P.C., intact.

2014  MLD  587   PESHAWAR-HIGH-COURT

NASEEB RAHMAN VS State

1. 516-A—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 32 & 74—Possessing and trafficking of narcotics—Superdari of vehicle—Vehicle in question had been seized in narcotic case from accused against whom the trial was in progress—Claimant of the vehicle was not accused in the narcotic case—Vehicle being non-customs paid had been registered in the name of the claimant and no other person had come forward to claim ownership or possession of vehicle in question—Nothing was on the file to indicate that the vehicle was used in the commission of the crime with the knowledge of the claimant—No doubt S.74 of Control of Narcotic Substances Act, 1997 prohibited the grant of custody of the vehicle used in the export, import or  transportation  of  narcotic  substance  to  accused,  or  any  of  his associates, or relatives, or any private individual, till the conclusion of the same, but the application of that provision of law, could not be extended to cover an owner, who had no hand or involvement in the crime, as it  could  not  be  construed  independently  of the provisions contained in S.32 of said Act which protected the right of the owner, who had no conscious hand in the commission of the crime—Retention of vehicle in Police custody for an indefinite period, would serve no useful purpose—Judicial discretion could also be exercised for release of the vehicle on ‘Superdari’ in view of the principle that if a court could grant final relief, it also possessed inherent jurisdiction to grant temporary relief pending proceedings before  it,  subject  to  fulfilling  condition  by  the  claimant  under  the  law  for  getting  relief  finally  from  the  court—Custody  of  vehicle  in question along with its documents, was ordered to be handed over to the claimant on furnishing bond/security, in circumstances.

2014  MLD  467   PESHAWAR-HIGH-COURT

SAMAWAT VS State

Ss. 9(c), 21, 22 & 25—Possessing and trafficking narcotics—Appreciation of evidence—Search and arrest—Mode—Whole trial could not be vitiated for the simple reason that arrest, seizure and initial investigation in the shape of recovery memo was made by an incompetent Police Officer—Police Official was expected to immediately rush to the spot and apprehend offender/suspect of indulging in narcotics offences—In the present case, after arrest the complainant handed over the investigation to Sub-Inspector who was competent to complete the investigation and submit the challan—Section 25 of Control of Narcotic Substances Act, 1997, had expressly excluded the application of S.103, Cr.P.C. to the cases registered under Control of Narcotic Substances Act, 1997—Police Officials were as good witnesses as any other from the public—Normally persons from public, hesitate to be a witness of recovery or crime—No one from public came forward to associate, with the recovery of narcotics etc.—Police was generally reluctant to become witness in such like cases out of fear of reprisals from accused side—Police Officials were as good witnesses as other public witnesses, unless and until some enmity, ill-will or mala fide had been proved on the record by accused—Even otherwise search and arrest by Police Officer was only an irregularity; and not an illegality vitiating the whole trial—Report of Chemical Examiner was not questioned by the defence at the trial or in appeal—Said report was received in positive, which fully corroborated the evidence furnished by the complainant as well as the recovery witnesses—No enmity or ill-will had been established against the complainant as well as to the marginal witnesses of the recovery—Prosecution had proved the guilt of accused beyond any reasonable doubt; and had successfully discharged its burden through consistent and confidence inspiring evidence—Conviction of accused was based on correct application of law and proper evaluation of evidence—Conviction of accused was maintained, but as accused was first offender and having no record of past history; and remained in jail from the date of registration of case (17-6-2012) the sentence awarded to accused was reduced from 3 years to the period already undergone by him, and amount of fine was also reduced from Rs.10,000 to Rs.5,000.

2014  PLD  127   PESHAWAR-HIGH-COURT

MIAN KHAN VS State

2000. 11—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking narcotics—Releasing accused on probation—Discretion of Juvenile Court—Juvenile Court in its judgment found the convict of 20 years of age at the time of his arrest—Convict was also found in possession of his computerized National Identity Card which could only be issued on attaining the age of 18 years—On the basis of report of Standing Medical Board, convict was around 18 years, and he was referred to the Juvenile Court for trial—Case was registered against convict in 2010 when he was found at the border line of juvenility, whereas at the moment he was no more juvenile—Section 11(b) of the Juvenile Justice Ordinance, 2000, squarely copes with such a situation, stipulating that a child offender could be sent to borstal institution, until he attained the age of 18 years, or for the period of his imprisonment, whichever was earlier—Said statutory provision was clear manifestation of the intention of the Legislature that on attaining the age of 18 years, convict/juvenile, was no more entitled to any such leniency, as he lost his status of juvenile accused in such eventuality—Firstly, release of juvenile convict on probation was a discretionary matter only to be decided by the Juvenile Court, and secondly, the Juvenile Court could not exercise such discretion on extinguishment of the status of the convict as juvenile—Trial Court had turned down the plea of convict on the same ground which was in accordance with law and within the parameters of S.11 of Juvenile Justice System Ordinance, 2000.

2014  PLD  127   PESHAWAR-HIGH-COURT

MIAN KHAN VS State

Preamble, S.9(c)—Possessing and trafficking narcotics—Object of Control of Narcotic Substances Act, 1997—Discretion of court—Scope—Control of Narcotic Substances Act, 1997 had been enacted to curb the menace of trafficking of narcotics—Involvement of ladies and juvenile, in the said business had become order of the day, as they could easily earn benefit of their gender and tender age—Mandatory remedies and concessions accorded by the law could not be withheld—While exercising discretionary power, regard must be had to the consequences, ensuing therefrom—Courts were required to strike the balance, as future of the whole generation could not be sacrified at the altar of unwarranted concession to a drug trafficker—Impugned judgment of the Trial Court, whereby accused was convicted and sentenced, could not be interfered with, in circumstances.

2014  PLD  69   PESHAWAR-HIGH-COURT

NASEEBULLAH VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Both Station House Officer of Police Station, the seizing officer and prosecution witness, who were marginal witness of the recovery memo being star witnesses of the prosecution, had furnished the ocular account of the occurrence—Both had corroborated each other on all material particulars of the incident; such as the mode and manner of reaching of accused at the spot in the motorcar; its chase by the Police party; and recovery of narcotics from the same and had established their presence at the spot at the time of arrest of accused; and recovery from the vehicle driver—Said witnesses were subjected to lengthy and searching cross-examination, but their testimony could not be shattered on material aspects of the case—Chemical Analysis Report with regard to contraband, was positive—Burden of proving that accused were not in possession or knowledge of the contraband in the motor car, was upon accused persons, but they failed to appear and explain the same—Accused persons had furnished different versions regarding their travelling at the odd hours of night, which did not appeal to a prudent mind—Recovery of arms and ammunition from accused had further supplemented the story of prosecution—Plea of substitution and false implication, raised by accused was nothing, but merely an attempt to hide their own guilt—False, fabricated and afterthought defence version, had rightly been rejected by the Trial Court—Accused had failed to attract any circumstance to create doubt in the prosecution case qua his innocence—In view of huge quantity of 3 maunds of backed charas and its price which was in million, question of foisting the  same  against  accused,  did  not  appeal  to  a  prudent mind—No evidence was available to show previous ill-will, grudge, enmity or rancour of accused persons with prosecution witnesses—Mere fact that witnesses were Police Officials, would not discard their testimony because Police Officials, were as good witnesses like others, and their testimony could be relied upon unless and until any enmity or ill-will was proved—No hard and fast rule existed that only private witness would speak the truth—Prosecution had fully proved its case against accused through cogent and confidence inspiring evidence—Trial Court which had properly appreciated the evidence on record, had rightly convicted and sentenced accused—Counsel for accused having failed to point out any illegality or infirmity in the impugned judgment, which could warrant interference, appeal against impugned judgment, was dismissed, in circumstances.

2014  PLD  69   PESHAWAR-HIGH-COURT

NASEEBULLAH VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5—Possessing and trafficking of narcotics—Delay in sending samples for analysis—Effect—Investigating Officer was not barred to send the sample beyond 72 hours of the seizure—Control of Narcotic Substances (Government Analysts) Rules, 2001, could not control substantive provisions of Control of Narcotic Substances Act, and Rules were to be applied in such a manner that its operation would not frustrate the purpose of the Act under which said Rules were framed—Failure to follow said Rules, would not render the search, seizure and arrest under Control of Narcotic Substances Act, 1997, an absolute nullity and make entire prosecution case doubtful, except for the consequence, provided in said Rules—Said Rules were directory and not mandatory—Belated dispatch of sample for analysis, would not be fatal to the prosecution case, in absence of any objection regarding the same, having been tampered or manipulated.

2014  PLD  69   PESHAWAR-HIGH-COURT

NASEEBULLAH VS State

1. 9(c)—Juvenile Justice System Ordinance (XXII of 2000), S.11—Juvenile Justice Rules, 2001, R.6—Possessing and trafficking of narcotics—Minority of accused—Effect—Release of minor accused on probation—Contention of counsel for accused was that accused who at the time of incident was below the age of 18 years, being a juvenile, was entitled to be dealt with under S.11 of the Juvenile Justice System Ordinance, 2000—Validity—Accused though at the time of commission of offence was a juvenile, but at the time of arrest and conclusion of his trial, and passing the impugned judgment of conviction, he had attained the age of 19/20 years—Mere minority or juvenile-ship of accused was not the criteria for grant of relief under S.11 of Juvenile Justice System Ordinance, 2000, in matter of conviction—There could be some minor offences, in which sentence could be normally short, and if the court passed an order of conviction, the beneficial provisions could be exercised in his favour—If, however, accused was charged for a heinous offence and sentenced to life imprisonment, his case could not be treated at par with minor offences—Age, seriousness of the offence, and past record of criminal activities of accused, at the time of conviction, would also be a relevant factor; which would also be adhered to—Juvenile Justice System, which was meant to treat a child accused with care and sensitivity, offering him a chance to reform and settle into the mainstream of society, same could not be allowed to be used as a ploy to dupe the course of justice, while conducting trial; and treatment of heinous offences—Court must be sensitive in dealing with the juveniles, who were involved in cases of serious natures like druglord, murder, gang rape, terrorism, sexual molestation, and host of other offences—Minor/Juvenile accused could never be allowed to abuse the statutory protection and concession/rather involvement in a flagitious crime, must be meted out stringent punishment to discourage the involvement of minors by the people for settling their score through them (Juveniles).

2014  YLR  1537   LAHORE-HIGH-COURT-LAHORE

Mst. ABIDA BIBI VS State

Ss. 498 & 497(2)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic—Ad-interim pre-arrest bail, confirmation of—Further inquiry— Female accused— Separate F.I.Rs. for the same occurrence—Effect—Doubt regarding culpability of accused—Police allegedly conducted a raid during which accused-female threw away a bag containing narcotic and fled to her father’s house—Plea of accused that a separate F.I.R. for the same occurrence had also been lodged against her husband, and that she was only implicated in the present F.I.R. for being wife of the accused of the other F.I.R. —Validity—Separate F.I.R. was lodged against husband of accused by the same complainant, for the same occurrence under S. 9(c) of Control of Narcotic Substances Act, 1997—Said separate F.I.R. created doubt about culpability of accused—Fact that accused-lady fled away from the scene in the presence of four police officials made the present case one of further inquiry—Nothing was to be recovered from the possession of the accused—Accused did not have a previous criminal record—Sending accused behind bars only to oblige her to come out of jail after a few days on post-arrest bail would amount to mockery of law—Ad-interim pre-arrest bail already granted to accused was confirmed in circumstances.

2014  YLR  822   LAHORE-HIGH-COURT-LAHORE

SARDAR ALI VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Recovery memo, did not bear the signature of prosecution witness produced to prove said recovery memo, which had made the prosecution case doubtful—Recovery of charas from accused as alleged by the prosecution, lacked proof, in circumstances—Other prosecution witness who was not produced by the prosecution, was given up by the prosecution—Conviction recorded by the Trial Court against accused appearing to be based on misreading and non-reading of evidence available on the record, could not sustain—Impugned conviction and sentence of accused, were set aside, and he was released from jail, in circumstances.

2014  YLR  646   LAHORE-HIGH-COURT-LAHORE

LIAQAT ALI VS State

1. 498—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking narcotics—Pre-arrest bail, confirmation of—F.I.R., in the case was lodged against accused after unexplained delay of approximately 24-days—Prosecution had put forward two stances, firstly, 1240 grams of charas was recovered from the secret cavity of the van, secondly, 1100 grams charas was recovered—Contraband was not recovered from the possession of accused—Complainant was real brother of a Police Officer, with whom accused had strained relations—Mala fide on the part of complainant, in circumstances, could not be ruled out—Accused was no more required by prosecution side for any further investigation and recovery—Ordinarily accused under S.9(c) of the Control of Narcotic Substances Act, 1997, did not deserve the right for the grant of pre-arrest bail, but facts of each and every case were to be seen independently—case of accused being fit one for grant of pre-arrest bail, bail granted to accused, was confirmed, in circumstances.

2014  YLR  636   LAHORE-HIGH-COURT-LAHORE

NADEEM ZAFAR VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 15 & 16—Possessing, manufacturing narcotics—Bail, grant of—No allegation against accused existed that he was granted the quota of 500 Kgs. of Ephedrine, a controlled substance, without due process of law—Accused had applied to the competent Authority for quota of ephedrine for manufacturing certain medicines and quota was granted to him—At the best, allegation could be levelled against accused that he had misused the quota of 500 Kgs. of Ephedrine HCL, by selling same to someone else in violation of S.16 of Control of Narcotic Substances Act, 1997, maximum punishment for which offence was one year R.I. or with fine which could extend to Rs.5000 or both—Offence, in the present case, was bailable, in circumstances—No evidene was available on record for the violation of the provisions under Ss.6, 7, 8 of Control of Narcotic Substances Act, 1997—When accused was arrested, sent to lock-up and challan had already been submitted, then keeping accused in jail, would not serve any useful purpose—Accused, was released on bail, in circumstances.

2014  YLR  383   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SAJID alias SHAHID VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51(2)—Possessing and trafficking of narcotics—Bail, grant of—Further inquiry—Accused who was behind the bars for the last eight and a half months, was not required by the prosecution side for further recovery or investigation—Witnesses were summoned, after framing charge in the case, but no prosecution witness was in attendance—After several adjournments two prosecution witnesses, who were Police Officials were present, but their statements could not be recorded as the Lawyers were observing strike on said date—Ever since the presentation of challan before the Trial Court, the trial was lingering on the basis of one pretext or the other, and the guilt of accused was yet to be determined—Prosecution was not pursuing the case vigilantly, and its witnesses were not in attendance before the Trial Court, which they otherwise ought to have bound under the law—Trial in the case was likely to consume a reasonable time—No useful purpose would be served by keeping accused behind bars for an indefinite period—Was yet to be determined by the Trial Court, after recording the evidence of the parties that alleged recovered substance was narcotic substance within the meaning of Control of Narcotic Substances Act, 1997—Till that time case of accused was covered under S.51(2) of Control of Narcotic Substances Act, 1997 calling for further inquiry into his guilt—Accused, was admitted to post-arrest bail, in circumstances.

2014  YLR  171   LAHORE-HIGH-COURT-LAHORE

ABDUL WAHAB VS State

S.9(c)—Recovery of narcotics—Appreciation of evidence—Benefit of doubt—Identification of accused—Charas weighing 80 Kilograms was recovered from a truck—Three prosecution witnesses stated that there were only four accused at the time of raid and not eight—Accused was not known to a single prosecution witness at the time of raid or prior to that—Whole prosecution evidence was silent on such issue and not a single witness uttered a word as to how he came to identify accused or with regard to the effect as to the source of identification—Prosecution witnesses stated that prior to the time of raid they did not know accused and had not met him, rather he was stranger to accused—Mukhber/spy was not present at the spot at the time of raid—Truck alleged to have been recovered was not in working condition and there was no evidence to link accused with the truck in any  manner—Prosecution failed to prove the charge against accused and High Court set aside the conviction and sentence awarded by Trial Court and accused was acquitted of the charge—Appeal was allowed in circumstances.

2014  PCrLJ  1663   LAHORE-HIGH-COURT-LAHORE

RAZIA SULTANA VS State

Ss. 9(c) & 15—Possessing and trafficking narcotics and aiding, abetment  or association in narcotic offences—Appreciation of evidence—Police constable and S.H.O., who were produced to prove the factum of recovery of huge quantity of narcotics, firmly supported the prosecution story, and they remained unshattered during cross-examination—Defence failed to create any doubt, beneficial to it in any manner—Assistant Sub-Inspector, also strengthened the prosecution case by supporting the fact of safe custody of sample parcels in the Malkhana, as well as safe transaction of the same to the office of Chemical Examiner in an intact condition; which stood further corroborated by the contents of report of Chemical Examiner—Defence could not get any benefit, because prosecution witnesses corroborated each other on every material point connecting accused with the commission of offence, without any doubt—Recovery from the house of accused was effected, on her own pointation, who herself led the raiding party there—No plausible reason for planting such a huge quantity of narcotics against accused by the complainant had been given by the defence—Impugned judgment passed by the Trial Court, was upheld, in circumstances.

2014  PCrLJ  1649   LAHORE-HIGH-COURT-LAHORE

GHULAB ALI alias GHULABO VS State

Preamble & S. 9—Intent and object of promulgation of Control of Narcotic Substances Act, 1997 was to control the production, processing and trafficking of narcotics etc., and having been promulgated for that special purpose, its operative provisions should not be crushed on mere technicalities—In achieving the object of that Act, court should be vibrant and minor irregularities or discrepancies, must be overlooked.

2014  PCrLJ  1649   LAHORE-HIGH-COURT-LAHORE

GHULAB ALI alias GHULABO VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5—Possessing and trafficking of narcotics—Appreciation of evidence—Police Inspector who appeared as witness, almost had reiterated the story narrated by him in the complaint—Said witness gave minute details of the narcotics which were recovered from possession of accused—Witness was fully corroborated by other Police Official who was also a member of raiding party—Contention of counsel for accused persons regarding violation of S.103, Cr.P.C., had no force, because S.25 of the Control of Narcotic Substances Act, 1997 had excluded the application of the said provision of Cr.P.C., from the cases of narcotics—Place of recovery was not a public place, but was a house; there was no possibility of any private person to witness the proceedings specially during the night when occurrence took place—Directions given in Rr.4 & 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, were directory in nature and not mandatory at all, coupled with the fact that the same did not override the main statute—Seventy-seven kilograms charas and 13-1/2 kilograms opium were recovered from possession/at the behest of accused persons; and accused persons never contended that such a huge quantity of narcotics was not recovered from them—Samples, though were sent to the laboratory after 15 days of recovery of narcotics, but the defence could not prove that the samples were tampered with during that period—Delay in submission of samples to the laboratory, was not fatal to the prosecution case to initiate the conviction—Positive reports of the laboratory supported the prosecution case—Accused who was apprehended at the spot, disclosed that his brother/co-accused was also involved—Said co-accused was specifically nominated  in  the  F.I.R.—Witnesses remained consistent with regard to place of recovery, recovery of narcotics and even the names of accused persons—Accused were notorious drug dealers having previous record—All said circumstances, fully involved accused persons with the commission of crime—No enmity, had been alleged against prosecution witnesses—No ground for false implication was alleged—Prosecution having successfully proved its case, and accused having rightly been convicted and sentenced, their appeal was dismissed, in circumstances.

2014  PCrLJ  1490   LAHORE-HIGH-COURT-LAHORE

SAJJAD AHMAD VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Complainant and prosecution witness had fully supported the prosecution version, on account of recovery; they were subjected to lengthy cross-examination, but the defence had failed to bring on record any evidence favouring the defence version—Other prosecution witness also reiterated the facts as given in the F.I.R., as well as uttered by the complainant; he was also subjected to lengthy searching cross-examination, but with no fruitful result—No objection had been raised to the effect that the contraband was unsealed or tampered with, therefore, delay in sending the sample for examiner would not affect result of Chemical Examiner—Report of Chemical Examiner was positive, and the defence had not disputed the nature of contraband—Contention that no private person having been associated to witness the recovery, recovery was false, was devoid of force as by virtue of S.25 of the Control of Narcotic Substances Act, 1997, provision of S.103, Cr.P.C. was excluded—Trial Court while taking note of fact that accused was first offender, had already inflicted alternative sentence of imprisonment for life—Prosecution had fully established its case against accused through leading tangible and confidence-inspiring evidence—Trial Court while appreciating the evidence available on the record in its true perspective, had rightly recorded the conviction and sentence against accused.

2014  PCrLJ  1423   LAHORE-HIGH-COURT-LAHORE

FAYYAZ AHMED VS State

Ss. 6 & 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Both complainant/Investigating Officer and other prosecution witness, had admitted that accused was just a carrier of donkey cart—Star witness of the prosecution, lent support to the defence version that accused was not having any knowledge, whether the luggage being carried by him in lieu of wages of Rs.300 was narcotics substance or something else—Trial Court despite holding that accused seemed to be a poor man and a cart driver, convicted and sentenced him—Case of accused was clearly that of acquittal, Trial Court ought not to have recorded conviction against him—Facts of the present case did not satisfy the provisions of S.6 of the Control of Narcotic Substances Act, 1997—Trial Court, in circumstances, was not justified while recording conviction of accused under S.9(c) of Control of Narcotic Substances Act, 1997—Judgment of the Trial Court was set aside, accused was acquitted of the charge and was ordered to be released, in circumstances.

2014  PCrLJ  1344   LAHORE-HIGH-COURT-LAHORE

IBRAR HUSSAIN VS State

Ss. 9(c), 32(2) & 48—Possessing and trafficking narcotics—Confiscation of vehicle—Car in question taken into custody on the allegation that same was being used by appellant/accused in the commission of crime, was confiscated in favour of State and its auction was also ordered—Said car was given to appellant in superdari by Special Court, but ignoring such aspect of the matter; and also violating the process of issuance of notice to the appellant/owner and to enquire into the matter, confiscation of the car was ordered by the Special Court—Impugned judgment to the extent of confiscation of car was nullity in the eye of law, and was not sustainable—To such extent impugned order was set aside, and matter was remanded to the Special Court with the direction, first to issue notice to the owner of car, and then to conduct a discrete inquiry, while maintaining superdari with the appellant; and thereafter pass an order with regard to disposal of car.

2014  PCrLJ  1335   LAHORE-HIGH-COURT-LAHORE

ABDUL SATTAR VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 9(c)—Possession of narcotic—Bail, grant of—Further inquiry—Border line case between Ss.9(b) & 9(c) of Control of Narcotic Substances Act, 1997—Accused was allegedly found in possession of 1050 grams of charas, which was slightly on the upper limit of quantity prescribed under S. 9(b) of Control of Narcotic Substances Act, 1997—Record did not show as to whether contraband was weighed after its removal from the shopper wherein it was allegedly kept—Exact quantity of narcotic thus remained unascertained—Investigation of the case was complete—Report of Chemical Examiner was still awaited—Accused was a previous non-convict—Case was one of further inquiry, therefore accused was granted bail.

2014  PCrLJ  561   LAHORE-HIGH-COURT-LAHORE

AZIZ ULLAH KHAN VS State

1. 9(c)— Possessing and trafficking narcotics— Appreciation of evidence—Sentence, reduction in—Co-accused had already served out 16 years, 11 months and 22 days, including the remissions; and accused had served out of 17 years, 6 months and 14 days including the remissions—Both accused persons, in circumstances, had served out more sentence as provided in sentence policy, laid down in Ghulam Murtaza v. The State PLD 2009 Lahore 362—Conviction of accused persons under S.9(c) of Control of Narcotic Substances Act, 1997 was upheld, but their sentence was reduced to already undergone by them including the fine.

2014  PCrLJ  561   LAHORE-HIGH-COURT-LAHORE

AZIZ ULLAH KHAN VS State

Ss.  5, 9, 11, 13, 16, 45 & 46— Possessing and trafficking narcotics—Award of punishment—Jurisdiction of Special Court—Control of Narcotic Substances Act, 1997, which was a special law, had provided for stringent and long punishment—Sentences specified in the Act, would depend upon quantity of recovered narcotic substances, and not the narcotic content of the recovered substance—Special care to be taken in narcotic cases by putting the prosecution to the strict test to prove its case—No room for doubt as to the exact quantity of the substance recovered—Accused being on the receiving end of long and strictest punishments, safeguards from his point of view should not be allowed to be sacrificed at the altar of mere comfort and convenience of the prosecution.

2014  PCrLJ  561   LAHORE-HIGH-COURT-LAHORE

AZIZ ULLAH KHAN VS State

Ss. 9 & 32— Possessing and trafficking narcotics— Articles connected with narcotics—Taking of samples—Where wrappers, slabs, cakes, packets, boxes, containers, etc. were recovered, it was mandatory to take separate sample from every separate packet, wrapper, slab, box, container and cake to make it a ‘Representative Sample’ of narcotic substance recovered.

2014  PCrLJ  561   LAHORE-HIGH-COURT-LAHORE

AZIZ ULLAH KHAN VS State

Ss. 9(c), 14 & 15—Possessing and trafficking narcotics—Denial of accused of allegation levelled against him—Effect—If at the time of framing of charge, accused would deny the allegation levelled against him by the prosecution; that nothing had been recovered from his possession or custody; and that in his statement recorded under S.342, Cr.P.C. he had controverted the allegation regarding recovery of narcotics from his possession or custody, then mere failure to challenge during the trial that remaining untested recovered substance was not narcotic substance, could neither weaken the case of defence nor strengthen the case of the prosecution.

2014  MLD  392   LAHORE-HIGH-COURT-LAHORE

LIAQAT ALI VS State

4. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic—Bail, grant of—Further inquiry—Contradiction regarding quantity of sample sent for analysis—Effect—Accused was allegedly found in possession of 4.360 kilograms of narcotic—As per content of F.I.R., complainant (police-official) segregated thirty grams (sample) from the recovered substance for chemical analysis, but report of Chemical Examiner revealed that the parcel (of sample) analyzed contained 250 grams of recovered substance—Complainant appeared to have toyed with the parcel of recovered substance by fetching another sample therefrom at a later date, but question as to how and in whose presence he did so, was not supported by any evidence—Complainant belatedly recorded his supplementary statement to cover up the said lacuna, which too showed an interpolation—Question as to whether accused possessed a narcotic substance, as alleged in the F.I.R., could only be determined by Trial Court after recording evidence of parties at trial—Case against accused called for further probe into his guilt—Accused was admitted to bail accordingly.

2014  YLR  2209   KARACHI-HIGH-COURT-SINDH

MANZOOR ALI VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Sentence, reduction in—Sufficient material was available before the Trial Court in shape of unimpeachable ocular evidence of complainant, supported by Mashirs/witnesses on the point of recovery; coupled with mashirnama of arrest, recovery and positive report of Chemical Examiner for establishing the guilt of accused for the alleged recovery of charas—Trial Court, in circumstances, had rightly convicted accused—Conviction awarded to accused did not require any interference in appeal—Charas in shape of ten small and big pieces, in an envelope weighing 1400 grams, was found, out of which 20 grams of charas was sealed separately for chemical analysis, report whereof was in positive—Only 20 grams charas was taken out of 1400 grams from one packet only as sample, and from remaining 1380 grams, no sample was taken it would therefore, not be possible to hold that said remaining packets were the pieces of charas or otherwise—Maintaining conviction of accused, his sentence was reduced to one which he had already undergone.

2014  YLR  2050   KARACHI-HIGH-COURT-SINDH

ABDUL MAJEED VS State

1. 9(b)—Possessing and trafficking narcotics—Appreciation of evidence—Recovered narcotic, was received by the office of Chemical Examiner after about four days from its recovery—Matter was shrouded in mystery as to during the intervening period in whose custody case property was lying—Tampering with the case property could not be brushed aside, when the person in whose custody the case property was lying during the intervening period had not been examined by the prosecution—Specific animosity and ill-will having been alleged against Police Officials, it was incumbent upon the prosecution to prove its case by examining independent person of the locality, but same had not been done in the case—Solitary marginal witness had not fully corroborated the deposition of his officer—Record did not reveal as to whether any efforts were made to persuade any person including the driver of vehicle to act as mashir of recovery—Flagrant violation of provisions of S.103, Cr.P.C. had taken place in the case—Conviction of accused recorded merely on probability by the Trial Court, was not sustainable in law—Impugned judgment of the Trial Court was set aside, in circumstances.

2014  YLR  1736   KARACHI-HIGH-COURT-SINDH

SHAUKAT ALI MANGRIO VS CIVIL JUDGE AND JUDICIAL MAGISTRATE NO.VII, HYDERABAD

Ss. 175, 217 & 218—Sindh Arms Act (XX of 2013), S.23-A—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Criminal Procedure Code (V of 1898), Ss.561-A & 190—Omission to produce document to public servant by person legally bound to produce it, disobeying direction of law by public servant, framing incorrect record by public servant, possessing unlicensed arm, possessing and trafficking narcotics—Application for quashing of order—Applicant, (S.H.O.) had sought setting aside of order passed by Judicial Magistrate, whereby he had ordered for issuance of show-cause notice for contempt proceedings against applicant regarding non-submission of list of witnesses—Magistrate under S.190, Cr.P.C. was competent to take cognizance of an offence committed, brought to his knowledge in writing, or orally; and such complaint could be initiated against the respective accused—Present was a glaring case of neglect and failure of compliance of mandatory provisions of law to produce lists of witnesses in the cases as directed by concerned Magistrate—Deviation of applicant for non-compliance of subject order amounted to frustrate the foundation stone of the scheme of administration of criminal justice; which was based upon fair, impartial and transparent investigation of the offence, duly registered by the State functionaries; and it must be carried out strictly in accordance with the relevant provisions of law—Applicant/S.H.O. could not point out any kind of inimical attitude and personal grudge of Magistrate against him—Impugned order passed by the Magistrate against applicant could not be termed as non-speaking, perverse, or capricious order—Magistrate, however, would not conduct further proceedings in that context; and he could file direct complaint on the strength of entire available record, before the court of competent jurisdiction.

2014  YLR  1665   KARACHI-HIGH-COURT-SINDH

MUHAMMAD YOUSIF TANIO VS State

1. 9(c)—Recovery of narcotic substance—Appreciation of evidence—Delay in sending samples—Police witnesses—Effect—Charas weighing 9 Maunds and 30 kilograms (390 kgs) was recovered from vehicle in which all three accused were present—Trial Court convicted all three accused and sentenced them to imprisonment for life—Plea raised by accused was that there was unexplained delay of four days in sending samples to laboratory and all recovery witnesses were police officials—Validity—Held, it was not requirement of law that whole contraband material should be sent for chemical examination for opinion of Chemical Examiner, only a portion was to be sent—Delay of four days in sending samples could not be treated as fatal in absence of objections regarding the same having been tampered with or manipulated—Sample was sent to Chemical Examiner after four days of recovery but from evidence of complainant and investigating officer no question was put to any of them as to where the sample was lying during those four days—Such delay in sending samples was immaterial and did not adversely affect prosecution case—Though prosecution witnesses had given different weight of allegedly recovered contraband material than the one disclosed in F.I.R. but on the basis of such difference in weight alone it could not be said that no recovery was effected from accused and they could not claim acquittal in such a heinous offence involving capital punishment—Evidence of police officials could not be disbelieved as a whole merely because of their being police officials until and unless some mala fide or enmity was brought on record to indicate false implication of accused in case, which factor was missing—Trial Court did not commit any illegality while convicting accused persons—High Court maintained conviction and sentence awarded to accused by Trial Court—Appeal was dismissed in circumstances.

2014  YLR  1236   KARACHI-HIGH-COURT-SINDH

GHULAM AKBAR VS State

Ss.9(b) & 25—Criminal Procedure Code (V of 1898), S.103—Possessing and trafficking narcotics—Appreciation of evidence—Benefit of doubt—Evidence of the prosecution was lacking quality as well as reliability about the recovery of the narcotics from the possession of accused—Major contradictions were noticed within the evidence of two prosecution witnesses, the complainant, and Mashir, who were members of the Police party, and were professional Police personnel having experience of search and seizure and the requirements of law—Alleged narcotic was not weighed in presence of the complainant—As per complainant, out of 5 pieces, one weighing 10 grams was separated for sample and sealed, which according to contents of the chemical report was found as charas, but said 5 pieces at the time of recording of the evidence of the complainant were found as case property present in the court which had raised two fold questions; whether more than 5 pieces of charas were secured, and which one was sent for chemical analysis; and whether already separated quantity of 10 grams represented the remaining quantity as narcotic when no sample was drawn from those remaining 5 pieces—Private persons, despite presence, were not associated with search and recovery in gross violation of the provisions of S.103, Cr.P.C.—No doubt S.25 of Control of Narcotic Substances Act, 1997 was an exception to the general rule under extraordinary circumstances, but necessasity of employing private persons as Mashirs could not be overlooked, wherever same was possible—Unexplained delay of 22 days in sending sample to Chemical Examiner—Police had shown extra swiftness in completion of process in unusual way, from which it could be concluded that quality of unimpeachable evidence free from all reasonable doubts was lacking for recording of the judgment of the conviction and sentence—Prosecution evidence being full of doubt, accused was acquitted by extending him benefit of doubt and impugned judgment was set aside, in circumstances.

2014  YLR  1173   KARACHI-HIGH-COURT-SINDH

SIKANDAR ALI VS State

5000. 9(c)—Possessing and trafficking narcotics—Sentence, reduction in—No ground for interference with sentence was made out and the only point for consideration was its appropriateness—Imprisonment of four years was upon recovery of opium exceeding one kilogram up to two Kilograms and fine of Rs.8000—Recovery was 1050 grams, a little more than one Kilogram, whereas the punishment for two Kilograms of opium was four years—Punishment for 1050 grams should be little more than two years—While dismissing appeal, sentence was modified to two and half years with fine of Rs.5000.

2014  YLR  1087   KARACHI-HIGH-COURT-SINDH

GHULAM MUHAMMAD VS State

1. 9(a) & (b)—Possessing narcotics—Appreciation of evidence—Sentence, reduction in—Accused had stated that in case, the High Court, while maintaining the conviction, reduced the sentence to one already undergone, accused would not press the instant appeal—Sample drawn for chemical examination, represented the recovery of charas from accused to the extent of 10 grams—Accused who was more than 60 years of age, had no previous conviction record; he had undergone agony of the pendency of the appeal since 2006—Request of accused was acceded to the extent of reducing the sentence to one already undergone by him, maintaining his conviction, in circumstances.

2014  YLR  874   KARACHI-HIGH-COURT-SINDH

GHULAM HUSSAIN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9 (c)—Possessing and trafficking of narcotics—Bail, grant of—Further inquiry–Total 4 ‘pattis’ (slabs) weighing 2 kilograms  of  charas  lying  in two packets were allegedly recovered from the accused but only 10 grams each from 2 packets were separated as sample for chemical examination leaving the remaining two ‘pattis’ in the packets—Positive report of Chemical Examiner received in respect of two samples which were taken out from two ‘pattis’ could not be considered at bail stage to have its connection with the alleged recovery of all the 4 ‘pattis’—Remaining two ‘pattis’ from which no samples were separated or sent for chemical examination was left for the Trial Court to determine the same and to such extent, the case needed further inquiry—Recovery of two ‘pattis’ the weight of which seemed to be one kilogram was covered by S. 9(b) of Control of Narcotic Substances Act, 1997 which did not fall within the ambit of prohibitory clause of S. 497(1), Cr.P.C.—Bail was granted in circumstances.

2014  YLR  757   KARACHI-HIGH-COURT-SINDH

ZARBAD KHAN VS State

Ss. 9(c) & 25—Pakistan Arms Ordinance (XX of 1965), S.13(d)—Possessing and trafficking narcotics, possessing unlicensed arms—Appreciation of evidence—Section 25 of Control of Narcotic Substances Act, 1997, having excluded the applicability of S.103, Cr.P.C., non-association of private mashirs at the time of recovery of narcotics would neither cause any dent in prosecution case, nor vitiate the conviction—Investigating Officer could be a complainant as well as a witness at the same time, without any adverse effect on the prosecution case—Police and Excise Officials, were as good witnesses as others; and their testimonies were also trustworthy—Investigating Officer and other prosecution witnesses, although were employees of Anti-Narcotic Force; but had no animosity or rancour against accused to plant such huge quantity of narcotic material upon him—Such was the exclusive domain of the prosecution to examine any witness or otherwise; and non-examination of any witness, would not vitiate the merits of the prosecution case—All prosecution witnesses supported prosecution case—Prosecution had been successful to bring home the guilt of accused to the hilt by placing ocular account, recovery of narcotic material and Chemical Examiner’s report—No reason was there to discard the testimony of the official witnesses—Counsel for accused persons, could not point out any misreading or non-reading of evidence by the Trial Court—Accused having failed to point out any error of law in impugned judgments, same were unexceptionable—Impugned judgments, not calling for any interferences, were maintained, in circumstances.

2014  YLR  639   KARACHI-HIGH-COURT-SINDH

ASHRAF VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9 (c)—Possession of narcotic drugs—Bail, grant of—Allegation against the accused was that he was selling Charas—1040 grams of Charas was recovered from the possession of the accused-petitioner and it was yet to be determined whether offence would fall under clause (b) or (c) of S.9 of the Control of Narcotic Substances Act, 1997—Present case was a border line case—Challan had already been submitted and accused-petitioner was no more required for investigation—Prosecution witnesses were police official and there was no question of tampering with evidence—Nothing was on record that the accused-petitioner was previous convict in similar offences—Enmity with police had also been alleged—Case for grant of bail to the accused-petitioner was made out—Accused-petitioner was granted bail in circumstances.

2014  YLR  632   KARACHI-HIGH-COURT-SINDH

JANIB ALI ZARDARI VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c) & 21—Control of Narcotic Substances Government Analysts Rules, 2001, R.4(2)—Possessing and trafficking narcotics—Bail, grant of—Further inquiry—F.I.R. was registered on the direction of the high-ups of the Police, but no competent officer, as provided under S.21 of Control of Narcotic Substances Act, 1997, was sent/deputed at the time of raid—Samples of charas were not taken and dispatched to the Laboratory for opinion within 72 hours, but were sent after about seven days of alleged recovery; and no explanation was given by the Police for such delay which was a violation of R.4(2) of Control of Narcotic Substances Government Analysts Rules, 2001—Memo of arrest and recovery was prepared in presence of two witnesses, who both were Police Officials—Names of said recovery witnesses had not been mentioned in the statement recorded under S.154, Cr.P.C. and in the F.I.R. which was lapse on the part of the prosecution creating reasonable doubt about recovery; and authenticity of Mashirnama of recovery had become fishy and made the case of prosecution of further inquiry—No reasons existed for keeping accused behind the bars, when sufficient illegalities and irregularities had appeared in the case of prosecution, which had created doubt in the prosecution story; benefit of which would go to accused—Accused, in circumstances, was entitled for grant of bail.

2014  YLR  188   KARACHI-HIGH-COURT-SINDH

ALI HASSAN alias HASAN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25—Possession of narcotic —Bail, grant of—Further inquiry—Non-association of private witnesses in spite of spy information—Punishment for the offence not falling within prohibitory clause of S.497(1), Cr.P.C.—Effect—Accused was allegedly found in possession of 1540 grams of charas—Although police witnesses were good witnesses as others but simultaneously it was the duty of police officer to make all efforts to join independent witnesses when there was such a possibility, and in case of failure to do the same, it should be justified with explanation—Maximum punishment for the offence, if proved, did not fall within the prohibitory clause of S. 497(1), Cr.P.C.—Record did not show that accused remained involved in offences similar to the present one—All witnesses were police officials, therefore, there was no likelihood of tampering with prosecution evidence—Case against accused was one of further inquiry—Accused was granted bail accordingly.

2014  PCrLJ  1761   KARACHI-HIGH-COURT-SINDH

MUJEEBUR REHMAN VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Sentence, reduction in—Counsel for accused, without arguing the appeal on merits, requested that he would not press appeal against conviction of accused, if the sentence awarded to accused was reduced to the period which he had already undergone—Accused at the time of commission of alleged offence was juvenile and remained in jail including remissions for a long time—Accused being of tender age at the time of commission of the offence, was tried under provisions of Juvenile Justice System Ordinance, 2000—Quantum of sentence was inflicted to accused in the light of huge quantity of contraband material recovered from the truck, which accused was allegedly driving—Punishment must be purposeful; there were three purposes of punishment i.e. retributive; preventive; and reformative—Accused, who had not criminal record, at the time of commission of offence was a young boy, had indulged himself in the crime under some misguidance and temptation and had suffered adequate punishment—While maintaining the conviction awarded to accused by the Trial Court, his sentence was altered to the imprisonment which he had already undergone.

2014  PCrLJ  1391   KARACHI-HIGH-COURT-SINDH

Syed GULLAB SHAH VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 4 & 5—Possession and transportation of narcotic—Bail, refusal of—Accused was apprehended by the police on spy information and was found to be transporting huge quantity of narcotic i.e. 8 kilograms of charas through a car, which was under his control at the time of arrest—Although only police officials and no private persons were associated as witnesses to the alleged recovery, but it was no ground to grant bail unless some mala fides appeared on part of police—No enmity or ill-will had been brought on record by accused against the police to show their false implication in the case—Although samples were sent to the chemical expert with some delay, but Rr. 4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 placed no bar on the investigating officer to send the samples beyond 72 hours of seizure of the narcotic substance—Accused was refused bail accordingly.

2014  PCrLJ  1391   KARACHI-HIGH-COURT-SINDH

Syed GULLAB SHAH VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession and transportation of narcotic—Bail—Crime Investigation Agency (CIA) police recovering narcotic from possession of accused—Plea of accused that CIA police was not empowered to effect recovery of narcotic substances—Validity—Considering such plea amounted to deeper appreciation of evidence, which was not permissible at bail stage— Accused was refused bail accordingly.

2014  PCrLJ  1391   KARACHI-HIGH-COURT-SINDH

Syed GULLAB SHAH VS State

Ss. 497 & 103— Control of Narcotic Substances Act (XXV of 1997), Ss. 9 & 25—Possession of narcotic—Bail—Witnesses of recovery—Only police officials— Non-association of private witnesses—Effect—Mere fact that witnesses were police officials could not be considered as a good ground to grant bail or discard evidence of police unless some mala fides appeared on record on part of police officials.

2014  PCrLJ  1358   KARACHI-HIGH-COURT-SINDH

NAZEER VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Benefit of doubt—Allegedly recovered charas was weighed from a different place, but the prosecution had not brought any evidence on record to corroborate the same—Delay of about two days took place in sending the samples for chemical examination, and same was not plausibly explained by prosecution as to where the samples were kept during that period—All Police Officials, though could not be termed as unreliable witnesses, but, when local persons were available at the site, and Police party was having prior information, failure of prosecution in not joining private witnesses, the manner of recovery, lost its sanctity—Single dent in prosecution case was sufficient to acquit accused—Impugned judgment was set aside and accused were acquitted in circumstances.

2014  PCrLJ  1295   KARACHI-HIGH-COURT-SINDH

BARKAT VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Accused persons had explicitly understood the charge against them—Witnesses in the case were Excise Officials, their evidence would not become invalid and could not be discarded, unless they were shown to be inimical and/or interested—Accused persons had admitted in their statements recorded on oath that they had no enmity with said official witnesses— Testimony of such witnesses could not be brushed aside, unless and until the contrary was proved—Trial Court had rightly believed the same to the extent of recovery of narcotics from the vehicle—No embargo existed on the complainant being Investigating Officer—Accused was driver of the vehicle and the driver had to be presumed to be having knowledge of availability of recovered charas; and such presumption was corroborated with the evidence—Accused, in circumstances, had rightly been convicted.

2014  PCrLJ  1295   KARACHI-HIGH-COURT-SINDH

BARKAT VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Unless mens rea was there, charge under the Control of Narcotic Substances Act, 1997 could not be held good—Mere presence of co-accused in the vehicle, had been alleged, not a single word had been deposed regarding his association with driver, or any connection with the recovery by prosecution witnesses—Evidence did not imply knowledge of co-accused, as regards availability of charas—Co-accused who was neither driver, nor a cleaner of the vehicle from which contraband was recovered, had got a lift from accused (driver)—Conviction against co-accused, could not be sustained, in circumstances; he was acquitted of the charge and was ordered to be released, immediately.

2014  PCrLJ  1193   KARACHI-HIGH-COURT-SINDH

MUHAMMAD QASIM VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Benefit of doubt—Police, allegedly recovered polythene bag from accused containing 15 big and small pieces of charas weighing 7 Kgs.—Small pieces separated from recovered charas weighing 10 gms were sealed in one packet for Chemical Examination—No detail or description was given to the effect that as to which sample was separated, from which piece of recovered charas—Complainant had not produced before the court, the black polythene bag which contained charas—Sample of recovered substance was sent to Chemical Examiner with unexplained delay of one week; and there was difference of weight as complainant allegedly separated 10 gms charas for chemical examination, while as per chemical examination report, the weight of substance was 9 grams—Statements of prosecution witnesses were not confidence-inspiring and circumstances had created serious doubt regarding the truth of prosecution story—Prosecution had failed to bring the guilt of accused at home—Defence had succeeded to make out its case for extension of benefit of doubt—Impugned judgment passed by the Trial Court, was dismissed, accused was acquitted from the charge and was released, in circumstances.

2014  PCrLJ  1075   KARACHI-HIGH-COURT-SINDH

AWAL RAEF VS State

Ss. 9(c), 34, 35 & 36—Recovery of narcotic substance—Appreciation of evidence—Chemical analysis—Industrial Analytical Centre report—Scope—Poppy straw weighing 2125 kilograms was recovered from vehicle driven by accused—Trial Court convicted the accused and sentenced him to imprisonment for life—Plea raised by accused was that chemical analysis was not done in accordance with law—Validity—Laboratory report produced by prosecution of alleged test violated the mandate of law, as Industrial Analytical Centre, even to prosecution was neither notified by Federal or Provincial Government to be a testing laboratory nor any official of such laboratory had been notified as Analyst—Such report submitted by prosecution could not be made basis of conviction for offence under S.9(c) of Control of Narcotic Substances Act, 1997—Alleged samples which according to prosecution were recovered from six jute bags out of 40 and were weighing six grams were never sent for chemical analysis—Remaining recovered substance was never sealed, therefore, fresh samples could not be drawn from remaining case property, as no sanctity could be attached to recovered remaining substance which had been allegedly lying in godown of authorities for more than five years and that too in unsealed condition—High Court set aside conviction and sentence awarded to accused and acquitted him of the charge—Appeal was allowed in circumstances.

2014  PCrLJ  1067   KARACHI-HIGH-COURT-SINDH

HABIB VS State

1. 9(b)—Possessing and trafficking of narcotics—Appreciation of evidence—Benefit of doubt—Trial Court had not discussed the evidence of the prosecution witnesses given by them in cross-examination, but had drawn the conclusion that questions put to them being formal in nature, their evidence was uniform and consistent on material particulars of the case, and it stood unshattered—Trial Court while delivering the impugned judgment had not taken into consideration entire evidence—Extraordinary and abnormal delay of almost 7 months was taken in the delivery of sample to Chemical Examiner and it was not known as to why sample was kept at Police Station for such a long time—Major contradictions were noticed in the statement of the prosecution witnesses with regard to quantity of the seized narcotic—Arrest of accused was not made from the spot; and on the day of alleged incident, escape of accused on foot in presence of Police mobile, and in the morning light of the day, being unconvincing, conviction and sentence by the Trial Court, could not be maintained—Impugned judgment of the Trial Court was set aside and accused was acquitted of the charge by extending him benefit of doubt, in circumstances.

2014  PCrLJ  865   KARACHI-HIGH-COURT-SINDH

GHULAM QADIR VS State

1. 9(c)— Possession of narcotics— Appreciation of evidence—Benefit of doubt—Trial Court while framing the charge and recording plea of the accused ignored the purpose of the same—Date, time and quantity of contraband allegedly recovered from the accused was incorrectly mentioned in the charge—Said court did not examine the material available before it and in a superficial manner framed charge without application of mind— Prosecution case was riddled with major contradictions  and illegality had been committed in framing the charge—Prosecution had failed to prove the case against the accused—Benefit of doubt was given to the accused—Appeal was accepted and conviction and sentence of accused was set aside.

2014  PCrLJ  662   KARACHI-HIGH-COURT-SINDH

GUL ZAMAN VS State

1. 9—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5—Recovery of narcotic substance—Delay in sending samples to Government Analyst—Effect—Provisions of Rr. 4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001, are directory and substantial compliance is sufficient—Even where there is no compliance at all, provisions of Control of Narcotic Substances Act, 1997, are not invalidated by such non-compliance, if the act otherwise is done in accordance with law.

2014  PCrLJ  662   KARACHI-HIGH-COURT-SINDH

GUL ZAMAN VS State

Ss.9 (c) & 25—Criminal Procedure Code (V of 1898), S.103—Recovery of narcotic substances—Appreciation of evidence—Police witnesses—Non-associating public witnesses—Charas weighing 62.830 kilograms was recovered from both the accused—Trial Court convicted both the accused and sentenced them to imprisonment for life—Plea raised by accused was that evidence of police witnesses was not acceptable and no person from public was made recovery witness—Validity—Mere fact that witnesses belonged to police was no ground to discard their evidence—Police witnesses were as good and respectable witnesses as other public witnesses and their statement could not be discarded for the reason that they were police employees—By virtue of S.25 of Control of Narcotic Substances Act, 1997, non-citing of public witnesses was not fatal to prosecution case as S.103, Cr.P.C. had been excluded from its application in cases of narcotics—Prosecution succeeded to prove its case for recovery of Chars and conclusion drawn and  reasons  given  by  Trial  Court  showed  fair  evaluation  of evidence—High Court did not find any illegality or infirmity in judgment warranting interference— Appeal was dismissed in circumstances.

2014  PCrLJ  542   KARACHI-HIGH-COURT-SINDH

SADAM VS State

1. 9(c)—Juvenile Justice System Ordinance (XXII of 2000), Ss.4(4), 5 & 7—Possessing and trafficking of narcotic—Declaring accused as Juvenile, and ordering separate trial—Accused had claimed that he being juvenile, his trial should be conducted under Juvenile Justice System Ordinance, 2000—Medical Board had given opinion that age of accused  was  about  20  years—Alleged incident took place 1 year, 5 months and 21 days prior to the date of medical examination—Age of accused  on  the  date,  the  alleged  offence  took  place,  was  about 18 years, 6 months and 9 days—Accused in circumstances, was aged about 18 to 19 years at the time of occurrence—Provisions of Juvenile Justice System Ordinance, 2000, were to be interpreted liberally; and when two views were possible, one favouring accused had to be taken, particularly qua the juvenility, inasmuch as it could be proved to be helpful for rehabilitation of accused on account of aid of Juvenile Justice System Ordinance, 2000—Accused was entitled to the benefit of the Ordinance and was declared as juvenile; and his trial was ordered to be separated from the case of co-accused and could be sent to the Juvenile Court.

2014  PCrLJ  490   KARACHI-HIGH-COURT-SINDH

RASHEED VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Sentence, reduction in—Evidence of Police Officer, who was prosecution witness, and that of Mashir of the arrest and recovery, had supported the prosecution case on each and every material particular of the case—Evidence of said witnesses further got corroboration by Mashirnama, F.I.R. as well as positive chemical report available on record—Prosecution witnesses were subjected to cross-examination, but their evidence remained un-shattered—Nothing had been brought on record by accused to show any ill-will of prosecution witnesses against him—Few minor contradictions in the statements of the prosecution witnesses, which were inconsequential in nature, were not enough to shatter the prosecution case—Evidence of Police Officials, were to be considered as of other witnesses within the probability of truth and belief in accordance with law, when nothing had been brought on record to show that Police witnesses had any ill-will or grudge against accused—Section 103, Cr.P.C. was not applicable to the proceedings under the provisions of Control of Narcotic Substances Act, 1997—Sample parcel though was dispatched for testing purpose after lapse of more than two months, but said delay, was not helpful to the accused, as evidence of witnesses of recovery of charas inspired confidence—In absence of any proof of tampering with the material, delay in sending samples to laboratory for chemical analysis was of no avail to accused—Sufficient material being available before the Trial Court in shape of unimpeachable ocular evidence coupled with Mashirnama of arrest and positive report of Chemical Examiner for establishing the guilt of accused for the alleged charge, Trial Court had rightly convicted accused—In absence of any infirmity or illegality in the impugned judgment of the Trial Court calling for interference, High Court maintained said judgment with modification that as the alleged recovery was 1500 grams charas which was below 2 Kilograms, sentence provided against said recovery which was five years and fine of Rs.20,000, was modified and reduced to four years and six months’ R.I. in circumstances.

2014  PCrLJ  482   KARACHI-HIGH-COURT-SINDH

SHAH NAWAZ alias SHANOO VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 25— Possession of narcotic—Bail, grant of—Further inquiry—Narcotic cases—Animosity with police, relevance of—Accused was allegedly found in possession of 2220 grams of charas—Plea of accused that he was booked in the present case due to enmity with police since a relative of his had filed an application against concerned Station House Officer (SHO) and his subordinate staff under Ss. 22-A & 22-B, Cr.P.C.—Validity—-Relative of accused had moved an application for registration of F.I.R. against concerned Station House Officer (SHO) and his subordinate staff, and in retaliation  four  F.I.Rs.  were  lodged  against  the  accused  and  his close  relatives— Factum  of  animosity  pleaded  by  a  party  with cogent  and  confidence  inspiring  evidence,  must  be  taken  into prime consideration by the court even if produced at bail stage, irrespective of the heinousness of the offence or recovery of considerable quantity of narcotic—Factum of animosity of police with the accused could not be rule out in the present case, which made the case one of further inquiry—Accused was released on bail accordingly.

2014  PCrLJ  427   KARACHI-HIGH-COURT-SINDH

SHAHID ALI LAGHARI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b) & 9(c)—Possession of narcotic—Borderline case between Ss.9(b) & 9(c) of Control of Narcotic Substances Act, 1997, benefit of—Scope—Benefit of such borderline case could be extended to accused even at bail stage.

2014  PCrLJ  427   KARACHI-HIGH-COURT-SINDH

SHAHID ALI LAGHARI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b) & 9(c) —Possession of narcotic—Bail, grant of—Borderline case—Police allegedly apprehended the accused and found him in possession of 1150 grams of charas—No material was placed on record by the prosecution to substantiate the allegation that accused was previously convicted or was a hardened, desperate and dangerous criminal—Investigation of the case was complete—Prosecution witnesses were police officials, therefore, there was no apprehension of tampering with the evidence—Recovery of 1150 grams of narcotic was a borderline case between Ss.9(b) & 9(c) of Control of Narcotic Substances Act, 1997, benefit of which could be extended to accused—Accused was admitted to bail accordingly.

2014  PCrLJ  349   KARACHI-HIGH-COURT-SINDH

JAFFAR KHAN VS State

1. 9(c)—Possession and transportation of narcotic —Appreciation of evidence—Sentence, reduction in—Taking of samples for chemical examination—Scope—Narcotic contained in different packets—Separate samples from each packet not taken—Effect—Accused persons were allegedly transporting packets containing 180 kilograms of charas, which were hidden in the secret cavities of a truck—Only two packets weighing 2 kilograms in total were sealed and sent to Chemical Examiner—Trial Court convicted accused persons under S.9(c) of Control of Narcotic Substances Act, 1997 and sentenced them to life imprisonment with a fine of Rs. 100,000 each—Validity—Police allegedly recovered 90 packets of charas which weighed 180 kilograms in total—Only two packets weighing one kilogram each were sealed separately and sent to Chemical Examiner—Report of Chemical Examiner also showed that Laboratory received only two sealed parcels containing two kilograms charas, as such the accused persons would be considered to have been found in possession/transportation of two kilograms charas as no chemical examiner’s report was available in respect of the rest of the recovered substance—Appeal was allowed partly, conviction of accused persons was maintained, but their sentence was reduced from life imprisonment to six years imprisonment with a fine of Rs. 100,000 each.

2014  PCrLJ  105   KARACHI-HIGH-COURT-SINDH

SHAFI MUHAMMAD BANGWAR VS State

Ss.9(b), 44 & 45—Criminal Procedure Code (V of 1898), S.561-A—Registration of case—Special Judge, jurisdiction of—Accused involved in case was acquitted of charge of possessing 200 grams of Charas by giving benefit of doubt—Trial Court formed opinion that Charas produced before Court was in fact in possession of applicants (Police officials) and they foisted the same upon accused and passed order for registration of F.I.R. against applicants—Validity—High Court declined to concur with opinion formed by Trial Court, as there was no basis for forming such opinion—Order was passed by Trial Court against applicants in their absence and without notice to them—Applicants were condemned unheard and remarks recorded by Trial Court were not tenable under the law—If there was any lapse on the part of prosecution, even then Control of Narcotic Substances Act, 1997, being special law did not provide for issuance of direction for registration of F.I.R. against applicants/official witnesses and Special Judge Narcotics acted beyond the jurisdiction—High Court expunged direction for registration of case against applicants, as the same was illegal—Application was allowed in circumstances.

2014  MLD  1698   KARACHI-HIGH-COURT-SINDH

GHULAM HUSSAIN alias BASHOO VS State

5000. 9(a)(c)—Possessing and trafficking of narcotics—Appreciation of evidence—F.I.R., challan and memo. of recovery reflected that 1050 grams of charas, consisting of 20 pieces of different sizes were recovered from accused; out of which 10 grams of charas was separated and sealed to be sent for Chemical Analysis—Exact weight of each piece of charas, recovered from accused was not identified, nor an attempt appeared to have been made by the complainant while preparing the relevant papers—Evidence qua sample was in conflict with the report sent by Chemical Examiner—Report of Chemical Examiner reflected that sample which was received by its office contained only one piece of charas, and same was in rod shape, which ruled out any possibility of different pieces of charas blended together with each other, either intentionally or not to make out one piece—Recovery of charas was 1050 grams containing 20 pieces of different sizes, by the principle of average, if 20 pieces of charas were equally divided, each piece would become in between the limits of 52 to 53 grams—Accused, in circumstances, would become only liable for 52/53 grams of charas from which sample appeared to have been taken—Prosecution had failed to discharge its burden of proving beyond reasonable doubt the recovery of 1050 grams of charas from accused—Case of accused, in circumstances, did not come within the mischief of clause (c), but fell within the ambit of clause (a) to S.9 of Control of Narcotic Substances Act, 1997—Accused had served his sentence for 11 months and 4 days, and had earned remission of 4 months and 15 days; his unexpired portion of sentence had been stated as 5 years, 8 months and 1 day with fine—By dismissing the appeal conviction and sentence awarded to accused were modified from S.9(c) to S.9(a) of Control of Narcotic Substances Act, 1997, and reduced the same to the period, accused had already undergone with fine of Rs.5000.

2014  MLD  1572   KARACHI-HIGH-COURT-SINDH

SHAHNAWAZ alias SHAHID ALI VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Sentence, reduction in—Charas allegedly recovered from accused, were two patties in single joint shape; and from only one Patti one piece of 10 grams, was taken out, and sent for chemical examination—Each Patti seemed to be equal in weight, which would be 500 grams each—By applying the sentencing Policy, while maintaining the conviction of accused, his sentence was reduced from seven years to one year, six months and fine from Rs.25,000 to Rs.11,000.

2014  MLD  1323   KARACHI-HIGH-COURT-SINDH

AMIR MEHMOOD VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)—Possession of narcotic—Bail, grant of—Further inquiry—Arrest from public place—Non-association of private witnesses—Doubt regarding actual date of arrest—Mushirnama silent as to the manner of weighing narcotic and the scale used—Effect—Case required further inquiry in terms of S. 497(2), Cr. P. C—Accused was granted bail accordingly.

2014  MLD  837   KARACHI-HIGH-COURT-SINDH

TAJ MUHAMMAD VS State

1. 9(b)—Criminal Procedure Code (V of 1898), S.103—Possessing and trafficking narcotics—Search and recovery proceedings—Appreciation of evidence—Sentence, reduction in—Co-accused prayed for mercy and did not press the appeal with submission for reduction of sentence already undergone by him—Appeal of co-accused was dismissed by reducing the sentence already undergone by him—No private person would voluntarily associate with search and recovery for fear of revenge by the members of drug mafia—No law was available for providing protection to prosecution witnesses against such fear—Alleged non-compliance of S.103, Cr.P.C., was of no consequence, in particular when mala fides against those witnesses were not proved—Sending of samples with a delay of three-four days was quite normal, due to official bottle-neck in getting necessary approval by the Investigating Officer, and selection of the person delivering the samples—Maintaining the impugned judgment, sentence awarded to accused by the Trial Court was reduced from three years to 18 months and fine of Rupees nine thousand.

2014  MLD  723   KARACHI-HIGH-COURT-SINDH

MUNEER VS State

Ss.103 & 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9 (c) & 25—Recovery of narcotic substance—Bail, grant of—Complainant as investigating officer—Delay in trial—Private witness, non-association of—Charas weighing 3 kilograms was allegedly recovered from accused during day time in a busy street—Plea raised by accused was that no private person was associated with recovery proceedings, complainant of case himself investigated the case and accused had been in custody for the last 22 months—Validity—Investigating officer should not be biased and if complainant of crime was also investigating officer, then in such eventuality factor of bias could not be ruled out—Provisions of S. 25 of Control of Narcotic Substances Act, 1997, excluded applicability of S. 103, Cr.P.C. but such exclusion did not authorize investigating officer of police or such other officer absolutely to exclude independent witnesses in all circumstances—Question of extension of benefit of doubt particularly at least in a case of further inquiry needed to be determined at bail stage, keeping in view the difference between “jail life” and “free life”—Accused was a young man of phosphoric age and since his arrest he had been behind the bar (for more than 22 months)—Case set up against accused was of great doubt and needed further inquiry—High Court did not allow to keep accused behind bars continuously amongst criminals and that too without any conviction in regular trial—Grant of bail in bailable offences was a right and not a favour and in non-bailable offences grant of bail though was not a right but a grace/concession—Bail was allowed in circumstances.

2014  MLD  509   KARACHI-HIGH-COURT-SINDH

ASHIQUE HUSSAIN VS State

1. 9(b)—Possessing and trafficking narcotics—Appreciation of evidence—Evidence of both the prosecution witnesses was consistent on all the material particulars, such as date, time, place and manner of recovery of contraband—No material contradictions had been noticed in the evidence of the prosecution witnesses—Some minor contradictions found in the evidence of the witnesses, could not be sufficient to cut the roots of the prosecution case—Such discrepancies were bound to occur due to lapse of considerable time—Positive report of Chemical Examiner, had been produced in evidence—Evidence of Police Officials, was as good as of any other public witness, in absence of any malice or mala fide of the Police Officials—In the present case, prosecution witnesses had no enmity with accused to foist contraband upon him; it was proved by cogent evidence that accused was found in possession of narcotic substance—Accused had failed to discharge burden to show that he was not in possession of narcotic—Trial Court on the basis of sufficient evidence had rightly convicted accused, in the case—Impugned judgment being based upon sound reasons was maintained—Accused being on bail, his bail bonds stood cancelled, and surety discharged and accused was taken into custody and remanded to jail to serve out his remaining sentence.

2014  PLD  132   KARACHI-HIGH-COURT-SINDH

1. AFZAL NADEEM VS PROVINCE OF SINDH
2. 9(4)—Control of  Narcotic  Substances  Act  (XXV of 1997), S.9(b)—Criminal Procedure Code (V of 1898), S. 382-B—Constitution of Pakistan, Art.199—Constitutional petition—Conviction by Foreign Court and compatibility with law of Pakistan—Petitioner was Pakistani national who was convicted and sentenced to imprisonment for life by a foreign court for possessing 884 grams of heroin powder—Petitioner was transferred to Pakistan under Transfer of Offenders Ordinance, 2002—Petitioner sought his release on the plea that maximum sentence for narcotics recovered from petitioner was imprisonment for seven years—Validity—Section 9(4) of Transfer of Offenders Ordinance, 2002, provided that sentence given to citizen of Pakistan in foreign jurisdiction should be compatible to the law of Pakistan and consequently a court of competent jurisdiction in Pakistan could adopt later sentence—Adopted sentence should correspond as far as practicable to the sentences imposed by foreign court—Gross quantity of heroin recovered from petitioner was 884 grams and in accordance with S.9(b) of Control of Narcotic Substances Act, 1997, where the quantity was up to 1000 grams then maximum sentence which could be imposed was seven years rigorous imprisonment along with fine—Petitioner had been in custody since 20-4-2004 and on giving him benefit of S.382-B, Cr.P.C., to which he was entitled, the petitioner had served more than nine years of imprisonment, which was sufficient in the facts and circumstances of the case—High Court directed the authorities to release the accused—Petition was allowed in circumstances.

2014  PCrLJ  1205   ISLAMABAD

MUHAMMAD WASEEM alias PADRI VS The STATE through Tahir Niazi S.-I. Police Station Abpara, Islamabad

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic—Bail, grant of—Further inquiry—Narcotic packed in littars—Samples taken from littars without specifying as to how much quantity was taken from each littar—Effect—Two packets were allegedly recovered from possession of accused containing 4 littars of charas weighing 2150 grams in total—Two samples, each weighing 10 grams, were taken from the two packets, without specifying as to how much quantity was taken from each of the four littars—Report of Chemical Examiner had also not been obtained despite a lapse of four months—Present case was a case of further inquiry—Accused was admitted to bail accordingly.

2014  PCrLJ  983   ISLAMABAD

ABDUL SATTAR BAIG VS State

1. 498—Penal Code (XLV of 1860), Ss.395, 411, 420, 468, 471, 409, 170 & 171—Pakistan Arms Ordinance (XX of 1965), S.13—Control of Narcotic Substances Act (XXV of 1997), S.9(a)—Dacoity, dishonestly receiving stolen property, cheating, forgery for purpose of cheating, using as genuine a forged document, criminal breach of trust by public servant, personating a public servant, wearing garb or carrying token used by public servant with fraudulent intent, possessing unlicensed arms, possessing and trafficking narcotics—Pre-arrest bail, refusal of—Accused after obtaining ad interim bail, had not joined investigation—Prima facie, reasonable grounds existed to believe that accused were involved in commission of offences and did not deserve grant of bail.

2014  PCrLJ  22   ISLAMABAD

MUHAMMAD IMRAN SHEIKH VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Benefit of doubt—Statements of prosecution witnesses, focusing only to the extent of recovery of charas was found highly discrepant, which could not be lightly ignored—Prosecution witness/Head Constable, who allegedly had seen the proceedings of recovery of charas, did not remember its colour; he also did not know, whether, the charas was in the shape of slabs or otherwise—Investigating Officer, in his statement, admitted that he had not mentioned as to from which drawer, charas was recovered; and that he had not mentioned the number of littars; and also did not mention the colour of the shopping bag in question—Said discrepancies, directly relating to the alleged recovery of charas, could not be termed as minor, rather same had made the prosecution case qua recovery of charas from the possession of accused, as doubtful—Story of the prosecution respecting recovery of charas from accused, being doubtful, could not be believed—While dealing with such like cases, special attention should be paid at the time of apprehension of accused, his search, recovery proceedings; and each and every detail should be brought on record, so that it could be ascertained that entire proceedings conducted by the Investigating Agency, were transparent and smacked truth—To convict accused on the basis of such tainted evidence, respecting recovery of charas was against the principles of natural justice—Conviction and sentence of accused, inflicted upon him vide impugned judgment, were set aside, he was acquitted of the charge by giving benefit of doubt, and he was discharged of his bail bonds.

2014  PCrLJ  22   ISLAMABAD

MUHAMMAD IMRAN SHEIKH VS State

Ss. 9(c), 22, 25 & 36—Possessing and trafficking narcotics—Appreciation of evidence—Stringent sentences having been provided under Control of Narcotic Substances Act, 1997, said Act had to be construed strictly; and relevant provisions of law dealing with the procedure, as well as furnishing proof, like report of Expert etc., were to be followed strictly in the interest of justice; otherwise, it would become impossible to hold that total commodity recovered from the possession of accused, was narcotics.

2013  SCMR  1538   SUPREME-COURT

NADEEM ASHRAF VS State

78. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(a) & 9(c)—Constitution of Pakistan, Art. 185(3)—Possession of narcotic— Bail, refusal of— Narcotic contained in different packets/ parcels mixed together before being sent for chemical analysis—Allegation against accused was that he had booked cartons for cargo, and upon search of said cartons heroin weighing 945 grams was recovered from 26 elevators and 420 grams of heroin was recovered from the other 10 elevators—Pleas of accused were that entire heroin recovered from 26 elevators was mixed together and only 10 grams were  sent  for  chemical  analysis;  that heroin recovered from other 10 elevators was also mixed together and only 10 grams was sent for chemical analysis; that in such circumstances the total heroin which was  sent and tested by the chemical examiner would come only to 78.34 grams  and he could only be convicted for the heroin which was sent and tested for analysis in view of the law laid down in the case of Ameer Zeb v. State (PLD 2012 SC 380); that offence against him  in such circumstances would fall within the mischief of S. 9(a) and not S.9(c) of Control of Narcotic Substances Act, 1997—Validity—Judgment to which reference was made by accused  i.e. Ameer Zeb v. State (PLD 2012 SC 380) was a criminal appeal, wherein the entire evidence had been led—Trial in the present case was yet to commence and it would be presumptuous on part of the accused to infer that the prosecution would lead evidence only to the extent of the weight to which he had made reference—Prosecution was free to lead further evidence in the present case and to request the court that it be allowed to send the entire narcotics allegedly recovered from the accused for chemical analysis—Accused was refused bail in circumstances—Petition for leave to appeal was dismissed accordingly and leave was refused.

2013  SCMR  669   SUPREME-COURT

Raja MUHAMMAD YOUNAS VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 13 & 15—Qanun-e-Shahadat (10 of 1984), Art. 38—Possession and trafficking of narcotics, aiding, abetment or association in narcotic offences—Bail, grant of—further inquiry—Accused implicated for the offence on the statement of co-accused made before the police—Such statement of co-accused could not be used as evidence against the accused in view of Art. 38 of Qanun-e-Shahadat, 1984—Plea of Anti-Narcotic Force that accused was involved in other narcotic cases similar to the present one was not relevant in circumstances—Case against accused was one of further inquiry—Accused was granted bail accordingly.

2013  SCMR  302   SUPREME-COURT

FAREED ULLAH VS State

1. 9(c)—Constitution of Pakistan, Art. 188—Supreme Court Rules, 1980, O.XXVI, R.1—Possession of narcotic—Sentence, reduction in—Consolidated sample, taking of—Effect—Accused persons were apprehended while in possession of charas weighing 24 kilograms—Trial Court convicted them under S.9(c) of Control of Narcotic Substances Act, 1997 and sentenced them to imprisonment for life and a fine of Rs.500,000 each with the benefit of S.382-B, Cr.P.C.—Appeal filed by accused persons before the High Court was dismissed, where after jail  petitions  filed  by  them  before  the  Supreme  Court were  also  dismissed—Validity—Recovered  charas  allegedly weighing 24 kilograms was in the shape of 20 littars but after the alleged recovery one consolidated sample of recovered substance had been taken,  which  sample  weighed  only  10  grams—At best only one littar  of  charas  could  have  been  considered  against  the  accused persons as recovered substance—By law of averages, if 20 littars weighed 24 kilograms then one littar would weigh 1.2 kilograms, therefore, it was only 1.2 kilograms of charas for which accused persons could have been convicted and sentenced—Review petition was allowed, impugned order passed by Supreme Court, whereby jail petitions of accused persons were dismissed, was recalled with the result that conviction of accused persons under S.9(c) of Control of Narcotic Substances Act, 1997 was maintained but their sentences were reduced to imprisonment for four years and six months each and a fine of Rs.20,000 each with the benefit of S.382-B, Cr.P.C.

2013  YLR  2407   QUETTA-HIGH-COURT-BALOCHISTAN

MOULA BAKHSH VS State

Ss.6 & 9 (c)—Possession of narcotics—Appreciation of evidence—Knowledge of presence of narcotics—Hashish was recovered from secret cavities of tanker driven by accused and co-accused was sitting on front seat—Both the accused were convicted by Trial Court and sentenced to imprisonment—Validity—Tanker was in the control of driver, therefore, there was no possibility that he had no knowledge about recovered article concealed in secret cavities—Tanker was on its way and it could safely be held that narcotic was concealed by driver for the purpose of its transportation or delivery—Prosecution was supposed to show that co-accused was either owner, cleaner or helper of tanker or he knew about secret cavities or concealment of contraband material therein and prosecution had to prove that co-accused had hands in the affairs—Tanker was not in the control of co-accused nor he was owner or cleaner, therefore, prosecution failed to prove his knowledge about establishment of cavities or concealment of narcotics in it—Record did not prove that co-accused was in any way involved in transportation of recovered material nor prosecution had established nexus of co-accused either with accused driver, with tanker or with recovered material, therefore, prosecution failed to bring the case of co-accused within the parameters of S. 6 Control of Narcotic Substances Act, 1997—Case of co-accused was distinguishable from the case of accused driver beyond shadow of doubt, therefore, High Court maintained conviction and sentence to the extent of accused driver while co-accused was acquitted of the change—Appeal was disposed of accordingly.

2013  PCrLJ  196   QUETTA-HIGH-COURT-BALOCHISTAN

Mst. FARHEEN VS State

1. 9(c)—Possession and trafficking of narcotic—Appreciation of evidence—Defence plea of false implication not proved—Planting of huge quantity of narcotics not probable—Accused-lady was allegedly found in possession of 7 kilograms of charas after police searched her bag at a checkpoint—Accused was convicted and sentenced by the Trial Court—Contentions of accused were that she had been falsely implicated in the case by the police and managed official witnesses and because of lack of disinterested witnesses, no reliance could be placed on the evidence of police witnesses—Validity—Plea of false implication of accused was belied by the fact that complainant (police official) who prepared the recovery memo and recovery witness (police official) remained consistent in their statements on material particulars of the prosecution case—No material discrepancies or contradictions had been brought on  record  to  shatter  credibility  of  prosecution evidence— Accused  was  arrested  on  the  spot  along  with  the contraband— Report  of  Forensic  Science  Laboratory  was positive—No mala fide or enmity with the police had been brought on record—Such huge quantity of contraband could not be planted by the prosecution against the accused—Accused had failed to prove her defence plea by producing evidence—Appeal was dismissed in circumstances.

2013  MLD  1774   QUETTA-HIGH-COURT-BALOCHISTAN

MUSA KHAN VS State

S.497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Possession of narcotics—Escorting co-accused—Case of further inquiry—Charas weighing 200 kilograms was not recovered from the possession/car of accused but it was allegedly recovered from the car driven by co-accused—Allegation against accused was that he was escorting and helping co-accused in trafficking narcotics—Validity—Was yet to be determined at trial whether accused was escorting co-accused or not—Case of accused fell within the ambit of further inquiry—Accused had been behind the bars since the date of his arrest and his further detention in jail would not serve the purpose—Bail was allowed in circumstances.

2013  MLD  1527   QUETTA-HIGH-COURT-BALOCHISTAN

SHAMSULLAH VS State

S.9(c)—Possession of narcotics—Appreciation of evidence—Delay in sending samples—Benefit of doubt—Accused was arrested red-handed for possessing Chars and was convicted by Trial Court under S.9(c) of Control of Narcotic Substances, Act, 1997, and sentenced to two years of imprisonment along with fine—Validity—Alleged contraband was recovered on 22-12-2011 and sample was received by hand in Forensic Science Laboratory on 9-1-2012—Delay in sending alleged sample to Laboratory was a defect in prosecution case and it was shrouded in mystery as to in whose possession alleged sample remained from 22-12-2011 to 9-1-2012—Case of prosecution was doubtful and benefit of any doubt in the links of prosecution case would go to accused—High Court maintained conviction of accused under S.9(c) of Control of Narcotic Substances Act, 1997 but reduced the sentence and amount of fine—Appeal was allowed accordingly.

2013  PLD  35   PESHAWAR-HIGH-COURT

THE STATE through Regional Director ANF VS IKRAMULLAH

1. 9(c)—Criminal Procedure Code (V of 1898), S.243—Possessing and trafficking narcotics—Revision petition seeking enhancement of sentence, dismissal of—Pleading guilty during trial—Effect—Award of lesser punishment by Trial Court—Scope—Accused persons (respondents) were arrested and found in possession of 10 kilograms of heroin, which they were trafficking through a vehicle—Before all the prosecution evidence was recorded by the Trial Court, accused persons submitted an application, wherein they pleaded guilty to the charge and stated that they belonged to poor families; that they remained unemployed despite attempts to find a lawful profession and due to these reasons, got involved in drug trafficking; that they had learnt their lesson in jail, and that due to their heinous activities, their families were suffering badly—Trial Court convicted accused persons under S. 9(c) of Control of Narcotic Substances Act, 1997 and sentenced each of them to 18 months imprisonment with a fine of Rs.30,000—Prosecution contended that it had proved the case against accused persons regarding recovery of huge quantity of heroin, but the Trial Court awarded them lesser punishment, which was contrary to the provisions of S.9(c) of Control of Narcotic Substances Act, 1997—Validity—Prosecution had not produced any reliable ocular or circumstantial evidence to establish the charge but it was the accused persons themselves, who submitted an application before the Trial Court, pleading guilty to the charge and placed themselves at the mercy of the court in respect of their sentences—Court always took a lenient view once a person pleaded guilty to the charge levelled against him—Trial Court  had  rightly  taken  a  lenient  view  in  respect  of  the sentences of accused persons, which was neither illegal nor contrary to the  punishment  provided  in  S.9(c)  of  Control  of  Narcotic Substances Act, 1997—Revision petition was dismissed accordingly.

2013  PLD  32   PESHAWAR-HIGH-COURT

ARIFULLAH VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 21 & 22—Possession of narcotic, mode of making searches and arrest—Bail, grant of—Further inquiry—Police officer below the rank of Sub-Inspector carrying out search, seizure, arrest and investigation proceedings—Effect—Assistant Sub-Inspector (A.S.-I.), who was below the rank of Sub-Inspector, allegedly received information of smuggling of narcotics and laid a picket—Said Assistant Sub-Inspector (A.S.-I.) stopped vehicle of accused at the picket for checking and conducted search of the vehicle—Charas was recovered from secret cavities  of  the  vehicle—Said  Assistant  Sub-Inspector (A.S.-I.) arrested the accused, drafted Murasila on the basis of which F.I.R.  was registered and also carried out material investigation into the case in the shape of seizure, weighing, packing and sealing of narcotic—Entire action taken by said Assistant Sub-Inspector (A.S.-I.) by way of registration of case and resultant investigation, from its inception to the end was violative of the law under Control of Narcotic Substances Act, 1997, therefore, case of accused was one of further inquiry—Accused was released on bail accordingly.

2013  PLD  23   PESHAWAR-HIGH-COURT

GUL KHAN VS S.H.O. POLICE STATION ANTI-NARCOTICS FORCE, PESHAWAR

Ss. 9(c), 46 & 48—Anti-Narcotics Force Act, (III of 1997), S.5—Frontier Crimes Regulations, 1901, S. 11—Notification 4-4/98-ANF, dated 6-12-2010—Recovery of narcotics—Forum of trial—Political Agent/Council of Elders—Powers—Scope—Power and jurisdiction of Sessions Judge have been invested on Political Agent, while exercising powers under Frontier Crimes Regulation, 1901, therefore, in view of notification, including two enactments i.e. Control of Narcotic Substances Act, 1997 and Anti-Narcotics Force Act, 1997 and in view of Second Schedule of Frontier Crimes Regulations as well as necessary corollary and unavoidable implications, District Magistrate / Political Agent has to exercise powers of a Sessions Judge in offences under the provision of Control of Narcotic Substances Act, 1997, and role of Council of Elders to which a reference is made under the provisions of S.11 of Frontier Crimes Regulation, 1901, has become either redundant  or  has  been  narrowed  in  its  scope  and  application.

2013  PLD  23   PESHAWAR-HIGH-COURT

GUL KHAN VS S.H.O. POLICE STATION ANTI-NARCOTICS FORCE, PESHAWAR

Ss. 9(c), 46 & 48—Anti-Narcotics Force Act (III of 1997) S.5—Constitution of Pakistan, Arts.10-A, 247 & 199—Notifications S.R.O. 1295(I)/98,  dated   16-11-1998—Notification   S.R.O.   489(I)/98  &  4-4/98-ANF, dated 6-12-2010—Constitutional petition—Fair trial, right of—Anti-Narcotics Force—Functions—Federally Administered Tribal Area (FATA)—Petitioner was accused arrested under Control of Narcotic Substances Act, 1997, from the area situated in FATA—Petitioner sought quashing of proceedings on the ground that neither Control of Narcotic Substances Act, 1997, nor Anti-Narcotics Force Act, 1997, was applicable in FATA—Validity—Notifications/ Regulations issued by the President were within his legislative competence with regard to FATA—Effect of both the enactments i.e. Anti-Narcotics Force Act, 1997 and Control of Narcotic Substances Act,  1997, had  been  extended  and  made  effective/operative in FATA—All raids conducted by Anti-Narcotics Force in two Tehsil of Khyber Agency were within lawful authority of police station Anti-Narcotics Force Peshawar—All actions taken, investigation conducted, inquiries made, seizure of narcotics made, recovery of the same effected were lawful and same could not be quashed or set at naught—Petition was allowed accordingly—Once President through notification had conferred jurisdiction on Political Agent and extended applications of Anti-Narcotics Force Act, 1997 and Control of Narcotic Substances Act, 1997, to FATA then hierarchy setup under Frontier Crimes Regulations, 1901 continued to exercise its jurisdiction and authority in such cases by necessary implications—Jurisdiction of High Court was not extended to FATA in view of Art. 247(7) of the Constitution—High Court recommended that such legal anomaly, posing considerable confusion, needed to be clarified and ambiguity had to be removed by the President while exercising powers conferred upon him under Art.247(5)(6) of the Constitution, so that High Court would be invested with and conferred upon appellate jurisdiction to hear appeals against order of conviction or acquittal, as the case might be, passed by Political Agent in exercise of powers of Sessions Judge, in cases of Control of Narcotic Substances Act, 1997—Quantum of punishment provided under S. 9(c) of Control of Narcotic Substances Act, 1997, was harsh and required to be scrutinized and reappraisal of evidence to be made in a fair and just manner by High Court and not by Executive Officer like Commissioner under Frontier Crimes Regulations, 1901—Without making such clarification and conferring powers of Appellate Court  on  High Court against order of Political Agent in the capacity of Sessions Judge, mandatory requirements of Art. 10-A of the Constitution would stand violated and fair trial being a fundamental right, would  be  denied  to  the  accused—Proceedings  conducted  by Anti-Narcotics  Force  of  Peshawar  police  station  were  within  its lawful authority—Petition was allowed accordingly.

2013  YLR  2694   PESHAWAR-HIGH-COURT

AKHTAR GUL alias NAVEED VS State

S.9 (c)—Possession  of narcotics—Appreciation of evidence—Sample weighing ten grams—Case property, non-production of—Charas weighing 25 kilogram was recovered from secret cavities of car being driven by accused—Trial Court convicted the accused and sentenced him to imprisonment for life—Validity—Police searched not only beneath the rear seat of car but also opened CNG tank, which was not possible without the help of mechanic or mechanical instruments and that too when police party did not know whether it was filled with gas or not and there was every possibility that it might blast—Time of arrest stated by one prosecution witness was 7 a.m., whereas time of occurrence was shown to be 7-30 a.m. and the same was clear on record  that  arrest  was  made  prior  to  the occurrence—Contraband allegedly recovered was not produced in Trial Court, rather case property which was brought to Trial Court belonged to some other case—Recovery memo did not show any mention of F.I.R. number and only ten grams of sample was sent to Forensic Science Laboratory for analysis and accused could be held liable for having ten grams Charas—High Court set aside conviction and  sentence  awarded  to  accused  by  Trial  Court  and  he  was  acquitted  of  the charge, as there were contradictions and lacunas in prosecution case and accused   was   wrongly   convicted—Appeal was allowed in circumstances.

2013  YLR  2284   PESHAWAR-HIGH-COURT

HAMAYUN VS State

S.497(2)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4, 5—Possessing, import or export and trafficking of narcotic—Bail, grant of—Further inquiry—Two packets of chars, weighing 1500 grams were recovered from the secret cavity of the vehicle in question on the pointation of accused persons—Quantity of contraband and the expected quantum of punishment to be awarded at the trial, in such like offences, had to be taken into account while allowing bail to accused—Keeping in view the quantity of recovered contraband, accused were not likely to be awarded punishment for more than two years—Accused had joined investigation and complete challan had been submitted—Accused were no more required by the Investigating Agency—Accused were neither previous convicts nor involved in such like offences—Samples from recovered chars were received by Chemical Examiner after a delay of about nine days—According to R.4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001, samples were to be sent to Forensic Science Laboratory within seventy two hours—State Counsel had failed  to  account  for  delay  in  sending  the samples to the Laboratory—No explanation was also available with the State Counsel to show that whether those samples were kept in safe custody or not and who was responsible for keeping same unauthorizedly for such a long period of about nine days—Such delay in sending the samples to the Chemical Examiner by the Police, cast a reasonable doubt on prosecution case, which had made case of accused persons arguable for the purpose of bail on account of further inquiry envisaged in subsection (2) of S.497, Cr.P.C.—Accused were allowed bail, in circumstances.

2013  YLR  2268   PESHAWAR-HIGH-COURT

KHURRAM SHAHZAD VS GOVERNMENT OF KHYBER PAKHTUNKHWA (KPK)

S.3—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4—Constitution of Pakistan, Arts.199, 5(2) & 15—Constitutional petition—Arrest and detention of suspected persons—Deputy Commissioner, on the report of police, issued preventive detention order of the petitioners for a period of thirty days—No record was produced showing indulgence of the petitioners in anti-social activities—Involvement of the petitioners in cases of narcotics did not justify issuance of orders of their preventive detention—Petitioners were not served with the impugned orders—Impugned detention orders did not  contain reasonable material to detain an individual and curb his liberty and freedom of movement—Impugned orders were set aside and petitioners were released—Constitutional petition was accepted.

2013  YLR  2260   PESHAWAR-HIGH-COURT

SHER AKBAR VS State

Ss.  9(c)  &  29—Qanun-e-Shahadat  (10 of 1984), Art. 122—Possession of narcotics—Appreciation of evidence—Allegation against the accused persons was that they were possessing 50 kilograms of heroin—Trial Court convicted the accused persons and sentenced them to life imprisonment each with fine of Rs.50,000 each—Validity—Both the accused had admitted their presence in the confiscated vehicle at the time of raid and they had not denied the factum that contraband was not recovered from the secret cavities of the confiscated truck wherein one accused was passenger sitting in the front seat of the truck while the other accused was found on driving seat and prosecution had succeeded in proving the recovery and arrest of accused—Accused could not take benefit of defective defence evidence but prosecution was not absolved from their primary duty to prove its case against the accused beyond  reasonable doubt—Under Section 29 of Control of Narcotic Substances Act,1997, burden would lie on the accused to give evidence in disproof of prosecution evidence to absolve themselves from responsibility of having or carrying contraband—Prosecution had proved its case against one of the accused who, at the time of interception of the truck, was driving the same, as contraband could not be concealed in the truck without his knowledge—Other accused, though was present in the vehicle but  there was no evidence that either he was cleaner or helper in the truck nor any incriminating material was recovered from him, so his case would stand on different footing from the other accused who was driver of the truck—Appeal filed by the accused who was not driving the truck was accepted and conviction and sentence recorded by the Trial Court to his extent was set aside and he was acquitted from the charges by extending benefit of doubt to him while appeal of the accused who was driving the truck was dismissed.

2013  YLR  2228   PESHAWAR-HIGH-COURT

ZEWAR KHAN VS ADDITIONAL ADVOCATE GENERAL, DARUL QAZA

1. 516-A—Control of Narcotic Substances Act (XXV of 1997), Ss.9(b), 32 & 74—Application for superdari, grant of—Contention of the applicant was that he was owner of the vehicle—Application for superdari was dismissed by the Trial Court—Applicant was not accused who claimed ownership of the vehicle on the basis of registration book and transfer letter and there was no other claimant of the vehicle—Notice was on record that vehicle had been used in the commission of offence with the knowledge of the applicant—Section 32 of the Control of Narcotic Substances Act, 1997, empowered the Trial Court for confiscation of the vehicle but the same should not be confiscated unless the owner was aware that his vehicle was used in the crime—Section 74 of the Act did not prohibit the release of the vehicle to its owner who was not connected with the commission of crime or was accused—Nothing was on record that applicant was aware that his vehicle was used for the transportation of Charas—Application was allowed and vehicle was given on superdari to the applicant.

2013  YLR  1895   PESHAWAR-HIGH-COURT

MAQBALI KHAN VS State

S.9(c)—Recovery of narcotic substance—Appreciation of evidence—Fake recovery, planting of—Conscious knowledge—Proof—Accused was driver of the vehicle from which Charas weighing 72 kilogram was recovered from secret cavities—Trial Court convicted the accused and sentenced him to imprisonment for seven years—Plea raised by accused was that prosecution did not prove conscious knowledge of accused regarding presence of Charas in the vehicle— Validity— Samples, from recovered narcotics, were sent to Forensic Science Laboratory for chemical analysis and report received therefrom was in positive—Nothing was brought on record to prove that recovered contraband was planted against accused—Such huge quantity worth lacs of rupees could not be planted by police at its own, in absence of any enmity or ulterior motive against accused—No evidence was available to prove that prosecution witnesses had any previous enmity or grudge with accused to falsely implicate him in the case—Accused at the relevant time was driving motor car in question and was incharge of the same which was under his control and possession—Whatever articles were lying in vehicle were under his control and huge quantity of narcotics had been recovered from secret cavities of his car for which no other person could be held responsible, except the accused, who was incharge of the vehicle which he was driving—No misreading and non-reading of evidence or any infirmity in judgment was noticed which could warrant interference of High Court in its appellate jurisdiction—Appeal was dismissed in circumstances.

2013  YLR  1874   PESHAWAR-HIGH-COURT

SARDOOR KHAN VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Case was that of capital charge and in such like cases evidence must come from some unimpeachable source, which should be supported by strong piece of evidence which in the present case was missing—Arrest of accused on the information of the informer, that he had connection with the Truck in question, and non-production of said informer as prosecution witness, was beyond comprehension—Prosecution having not been able to prove its case against accused beyond reasonable doubt, conviction and sentence of accused recorded by the  Trial Court,  was  set  aside—Accused was acquitted of the charge levelled against him and was set at liberty, in circumstances.

2013  YLR  1840   PESHAWAR-HIGH-COURT

SHAHID VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking narcotics—Bail, grant of—For the purpose of bail in such like offences, the quantity of contraband and the expected quantity of punishment, which was to be awarded at the conclusion of trial, was to be taken into account while allowing bail to accused—In the present case, in view of the quantity of narcotic recovered, there was no possibility of awarding maximum punishment provided under sub-clause (c) of S.9 of Control of Narcotic Substances Act, 1997—Investigation against accused was complete and he was no more required for any further investigation—Accused was neither a previous convict nor involved in such like offences—Keeping accused behind the bars, would serve no useful purpose to prosecution, in circumstances—Accused was admitted to bail.

2013  YLR  1683   PESHAWAR-HIGH-COURT

ABDUR RAHIM alias RAHIMAY VS State

Ss. 9(c), 34 & 35—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5—Possessing and trafficking narcotics—Appreciation of evidence—Contention of counsel for accused was that as the  contraband was sent to Forensic Science Laboratory beyond stipulated period of 72 hours, it had made the report of Forensic Science Laboratory illegal and rendered the seizure invalid in the eye of law as provided in Rule 4 or 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001—Validity—Said Rules never placed any bar on the Investigating Officer to send the sample beyond seventy two hours of the seizure or receive the Forensic Science Laboratory’s report after fifteen days—Delay otherwise in sending the incriminating articles to concerned quarter for expert opinion, could not be treated as fatal to the prosecution case, nor it would vanish the evidentiary values of such a report—Forensic Science Laboratory’s Report had been signed by Chemical Examiner as well as by Chemical Expert, who were authorized officers in that respect under Ss.34 & 35 of Control of Narcotic Substances Act, 1997—Objection of accused that report was signed by Assistant Chemical Examiner, was repelled as any report submitted by duly Notified Assistant Chemical Examiner was a report of Government Analyst within the meaning of Ss.34 & 35 of Control of Narcotic Substances Act, 1997 and was admissible in evidence—Objection on admissibility of Forensic Science Laboratory’s Report, as far as non-presence or non-availability of embossing marks was concerned, recovery of contraband could not be negated on mere non-presence of embossing marks on the Forensic Science Laboratory’s Report, as nowhere was provided in Control of Narcotic Substances Act, 1997 that such like report would have any embossing marks—No such rule had been framed so far—Recovery of huge quantity of narcotic from accused had been proved by the raiding party, who had no personal reasons to involve accused in the false case—Admission  of  accused  that  he  dealt with business of narcotic, but he repented his ways, also supported the prosecution case without reasonable  doubt—Legal sentence awarded to accused, did not require any interference by High Court, in circumstances.

2013  YLR  1667   PESHAWAR-HIGH-COURT

SAJJAD AHMAD VS State

Ss.9(c) & 29—Recovery of narcotics—Appreciation of evidence—Defence plea—False implication—Onus to prove—Accused were driver and co-driver of truck, out of which Charas and opium weighing 278 kilograms was recovered—Trial Court convicted both the accused and sentenced them to imprisonment for life—Plea raised by accused was that they were falsely implicated—Validity—Narration given by all prosecution witnesses remained consistent and confidence inspiring—Question of false implication was too remote a possibility—Accused in a futile attempt tried to make out a case by saying that nothing was recovered from the truck driven by them or they did not know about presence of contraband in truck in question and they had been falsely charged in the case—Accused, neither opted to produce defence witness nor desired to depose on oath in support of their contentions which fact too proved their guilt—Charge against accused was proved beyond any shadow of doubt and Trial Court had rightly convicted and sentenced the accused—Findings of Trial Court were free from any infirmity and were not open to any interference—Appeal was dismissed in circumstances.

2013  YLR  1617   PESHAWAR-HIGH-COURT

MUHAMMAD SADIQ VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8 & 9(c)—Possession and trafficking of narcotic—Bail, refusal of—Accused driving the vehicle alone—Control and possession over recovered narcotic—Scope—Mixing the recovered narcotic before sending samples— Scope— Accused was apprehended at a police barricade and upon search of his vehicle, 14 packets containing a total of 14 kilograms charas were allegedly recovered from the secret cavities of the vehicle—Contentions of accused were that packets of alleged narcotic were initially mixed together and then three samples weighing 10 grams each were sent for chemical analysis, therefore, samples sent did not represent the whole recovered consignment; that narcotic was not recovered from his personal possession but from secret cavities of the vehicle, hence he had no conscious knowledge about it, and that trial had commenced and he was no more required for further investigation—Validity—Accused was driving the car alone and was in charge of it, therefore, same was under his control and possession—Articles lying in the vehicle , in such circumstances, would also be under his control and possession—Some quantity of narcotic was separated from each of the 14 packets and then mixed up, wherefrom three samples of 10 grams each were prepared and only sample of 10 grams was sent for chemical analysis, which denoted that sample sent for analysis represented the whole lot of 14 packets—Challan was complete  and  trial had commenced—Bail petition of accused was dismissed, in circumstances.

2013  YLR  1453   PESHAWAR-HIGH-COURT

SHAHID VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Delay of about 26 days in sending the samples to Forensic Science Laboratory—Prosecution witness/Sub-Inspector of Police, did not know as to when and through whom the samples were sent to the Laboratory; he had not recorded the statement of Moharrir concerned regarding the receipt of the samples and its safe custody—When the vehicle in question was signalled by the raiding party, it did not stop, and instead the driver speeded up the same by trying to flee away—During the chase, cross-fire took place between the parties and the inmates of said vehicle sitting in its rear seat, who were female accused, were injured—Nothing was on record, which could show that said vehicle was also hit or for that matter had any bullet marks—Location and injuries on the persons of female accused, and absence of bullet marks on the vehicle, in which they were travelling, was beyond comprehension—Absconding co-accused succeeded in fleeing away from the spot, but accused remained seated in the vehicle—Question would arise as to why they did not flee or attempted to decamp—Trial Court, in circumstances had failed to consider said lacuna in the prosecution case—Conviction and sentence awarded to accused by the Trial Court was set aside, they were acquitted of the charge levelled against them, and were set at liberty, in circumstances.

2013  YLR  1390   PESHAWAR-HIGH-COURT

SAID HAKIM VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking of narcotic—Bail, grant of—Inquiry report had revealed that accused was booked for the offence, and the real culprit/driver of truck fled away from the spot—Accused, though was found inmate of the truck, but nothing was recovered from his immediate/personal possession, or on his pointation—Record also did not show that accused was in conscious knowledge of the recovered contraband—No evidence of any kind to reasonably connect accused as an associate of co-accused was available—Accused was directed to be released on bail, in circumstances.

2013  YLR  1357   PESHAWAR-HIGH-COURT

MUHAMMAD AFZAL VS State

1. 9(c)—Possession and trafficking of narcotic drugs—Appreciation of evidence—Prosecution witnesses fully corroborated the prosecution case—All such witnesses remained consistent with regard to the recovery of the contrabands from the motorcar in question, and the manner in which said recovery was effected—Said witnesses were subjected to lengthy cross-examination, but the defence failed to damage or shatter their testimony—Accused could not prove his minority as it had fully been established that at the time of his arrest his age was 24 years and at the time of recording his statement under S.342, Cr.P.C. was about 26 years—Plea of alibi as taken by accused, had itself been contradicted by him—Contention of accused regarding non-production of recovered contrabands before the Trial Court, was repelled, because same were produced by the complainant Police Officer himself duly sealed into two bags—Prosecution had undoubtedly established the recovery of contrabands of huge quantity from the secret cavities of the seized Motor Car, being driven by accused, about which he had full knowledge—Official witnesses, who appeared against accused had no enmity or malice against him; and plantation of such huge quantity of narcotics was also impossible, their testimony with regard to time, place and mode of recovery, could not be discarded—Trial Court had rightly rejected defence version of accused after considering each and every piece of evidence on record—Report of Forensic Science Laboratory in respect of the samples separated from lots of contraband, were positive—Prosecution having successfully established its case against accused through confidence-inspiring evidence of eye-witnesses recorded before the Trial Court, which had not at all been shattered by defence during cross-examination, well-founded judgment of the Trial Court, needed no interference by High Court.

2013  YLR  1244   PESHAWAR-HIGH-COURT

AMANULLAH VS State

14. 9(c)—Possession and trafficking of narcotic—Appreciation of evidence—Defence plea of accused of his false implication was not proved—Planting of huge quantity of narcotic was not probable—Recovery of narcotic had fully been proved—Accused had produced four witnesses in support of his stance, who were closely related to co-accused—Said witnesses neither ever appeared during the investigation before the Investigating Officer nor submitted any affidavit regarding innocence of accused—Shaky statements of the defence witnesses could not be relied upon, when no documentary proof in support of the version of defence had been produced before the Trial Court—Accused himself did not appear in the witness box to substantiate his plea as described by the defence witnesses—Contraband was recovered from left rear tyres of the bus in question which was only possible, if the driver of the vehicle had himself concealed the same—Complainant in the F.I.R. had clearly mentioned the refusal of the passengers of the bus to become a marginal witness of recovery memo—Passengers who belonged to different areas, usually refuse to become witness in such like cases—Nothing was on record to suggest that prosecution witnesses had any grudge or enmity with accused—F.I.R. Number was very much available on the recovery memo—Trial Court after appreciation of evidence had rightly held that prosecution had established the recovery of contraband in the shape of opium weighing 14.400 Kgs. from the secret cavity of bus driven by accused—Prosecution witnesses though were official witnesses of Anti-narcotic Force, but in the absence of any enmity or grudge, they were as good witnesses as other public witnesses, and their testimony could not be discarded or brushed aside on the sole ground that they were members of the said Force—Witnesses remained consistent so far as time, place and mode of recovery was concerned, and their evidence was trustworthy, confidence inspiring and of unimpeachable character—Well-founded judgment of the Trial Court, needed no interference by High Court—Conviction of accused was maintained, but sentence of one year S.I. in default of payment of fine of Rs.100,000 was reduced to six months’ S.I.—With such modification, appeal was dismissed.

2013  YLR  1123   PESHAWAR-HIGH-COURT

MUHAMMAD MUSTAFA VS State

1. 9(c)—Possession and trafficking of narcotic—Appreciation of evidence—Defence plea of accused that he had been enroped falsely by the Police due to collusion with prosecution witness was not proved—Accused had been arrested red-handed on the spot after having been found in possession of huge quantity of charas weighing 30 Kgs. from the secret cavities of seized Motor Car being driven by accused—Prosecution had produced six witnesses before the Trial Court—Nothing was on record, or any suggestion that the Police had enroped accused due to enmity—Plea of accused did not appeal to reason—Statement of prosecution witness was confidence inspiring, straightforward and seemed to be truthful—Said witness was disinterested witness and no ground had been advanced to discard his statement—Samples of two different kinds of charas were sent to Forensic Science Laboratory, report of which was positive—Quantity of ‘Pukhta’ charas recovered from accused being more than 10 Kgs. accused was rightly awarded sentence—Technical ground that contraband was received by the Laboratory after 5 days of the occurrence, could not benefit the accused in view of the fact that huge quantity of the contraband and was recovered from the accused—Accused, could not be absolved from the liability of conscious knowledge of contraband—Transportation of narcotics in such a huge quantity could not be ignored—Despite some minor discrepancies and some lapses, prosecution had proved its case beyond any shadow of doubt—Trial Court, in circumstances, had rightly convicted and sentenced accused—Conviction and sentence of accused, were maintained, and appeal being devoid of force, was dismissed, in circumstances.

2013  YLR  1120   PESHAWAR-HIGH-COURT

NISAR KHAN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic—Bail, grant of—Further inquiry—Contradiction in F.I.R. and analyst report in regard to nature of substance recovered—Effect—Accused was allegedly found in possession of 5 kilograms of “Charas garda”—Report of Chemical Examiner showed that substance recovered was “Charas pukhta”, thus leaving room to ascertain as to whether alleged contraband was Charas or otherwise—Case was one of further inquiry in such circumstances—Accused was allowed bail with the observation that it was consistent practice of High Court to allow bail in narcotic offences in view of the quantity of narcotic (5 kilograms) that had been recovered in the present case.

2013  YLR  995   PESHAWAR-HIGH-COURT

ANWAR JAVAID VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Passenger’s conscious knowledge of presence of contraband in a vehicle—Scope—Police searched a truck at a police barricade and recovered 45 kilograms of heroin from specially designed secret cavities in the truck—Truck was being driven by the co-accused, while accused was sitting on the front seat—Trial Court convicted and sentenced accused under S. 9(c) of Control of Narcotic Substances Act, 1997—Validity—Accused was neither driving the truck in question nor there was an iota of evidence to the effect that he was either owner of the truck or its cleaner—Complainant/police-official had stated in his cross-examination that accused did not disclose the fact of concealment of contraband in the secret cavities but it was the co-accused, who was driving the truck and had control and conscious knowledge of the presence of contraband in the secret cavities—No evidence was brought forward to show that accused was an accomplice of the co-accused or that he had knowledge of the presence of contraband in the truck, therefore, in such circumstances he could only be said to be passively sitting in the truck—Accused had no criminal background—Appeal was allowed, conviction and sentence recorded by Trial Court was set aside and he was acquitted of the charge.

2013  YLR  995   PESHAWAR-HIGH-COURT

ANWAR JAVAID VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Police searched a truck at a police barricade and recovered 45 kilograms of heroin from specially designed secret cavities in the truck—Truck was being driven by the accused—Trial Court convicted and sentenced accused under S. 9(c) of Control of Narcotic Substances Act, 1997—Validity—Complainant/prosecution witness, who was a police official, stated in his testimony that on receipt of prior information qua transportation of heroin, a police barricade was laid, whereafter a truck, which was being driven by the accused, was signalled to stop; that 45 kilograms of heroin was recovered from specially designed secret cavities in the truck, and that 90 parcels containing heroin were sealed for chemical analysis—Another prosecution witness/police official, who was marginal witness to the recovery, also reiterated the same facts given by the complainant and given in the F.I.R.—Both said witnesses were subjected to lengthy cross-examination but without any fruitful result—Involvement of accused in the offence was proved by the prosecution by leading overwhelming evidence against him and he was rightly convicted by the Trial Court—Appeal was dismissed in circumstances.

2013  YLR  913   PESHAWAR-HIGH-COURT

Mst. PARVEEN BIBI VS State

1. 497(1), first proviso—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51—Possession of narcotics—Bail, grant of—Female accused—Accused-lady was allegedly found in possession of 3 kilograms of charas—Although offence alleged was not bailable under S. 51 of Control of Narcotic Substances Act, 1997 and fell within the ambit of S. 497(1), Cr.P.C., but since accused was a woman and her case fell within the first proviso of S.497(1), Cr.P.C, therefore, her case was arguable for the purposes of bail—Quantity of charas allegedly recovered from accused was not likely to attract maximum punishment provided under S.9(c) of Control of Narcotic Substances Act, 1997 , if case against her was proved at trial—Quantum of sentence had to commensurate with the quantum of narcotics—Record showed that accused was a previous non-convict and was not involved in offences similar to the present one—Accused was released on bail in circumstances.

2013  YLR  827   PESHAWAR-HIGH-COURT

MUHAMMAD RIAZ VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking of narcotics—Bail, grant of—Further inquiry—Alleged contraband material was not recovered from the direct possession of accused person, but same was recovered from secret cavities of the motorcar driven by co-accused—Accused persons, no doubt were apprehended at the spot while seated in the vehicle, but no evidence had been brought forth by the prosecution that they were in conscious knowledge of the narcotics stashed in the secret cavities of the car—Trial Court at the conclusion of the trial was to adjudge as to whether accused were in any manner linked with the commission of the offence, and that too in a situation when none of the two was either the owner or driver of the vehicle—Case of accused tentatively qualified under subsection (2) of S.497, Cr.P.C. calling for further probe into the matter—Accused were admitted to bail, in circumstances.

2013  YLR  475   PESHAWAR-HIGH-COURT

MUKHTIAR VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Possession of narcotic—Bail, grant of—Further inquiry—Alleged recovery of substance was not made from the direct possession of accused—Forensic Science Report in respect of the allegedly recovered substance was still awaited, therefore, reasonable grounds existed to suggest that case of accused required further probe—Accused was released on bail in circumstances.

2013  YLR  196   PESHAWAR-HIGH-COURT

NIGAR AHMAD VS State

1. 9(c)—Police Order (22 of 2002), Art.18(4)—Possessing and trafficking narcotics—Appreciation of evidence—Prosecution witnesses had contradicted each other on material points, but the Trial Court had failed to take into consideration said glaring contradictions in between their statements for discarding their evidence in toto—Occurrence was stated to have taken place inside the Bus Stand, but neither statement of the General Manager of the Bus Stand was recorded, nor any private person had been associated in the proceedings in order to show the presence of accused on the said place, or to prove that in fact the occurrence had taken place inside the said Bus Stand—Glaring discrepancies in the depositions of the witnesses available on record, were more than sufficient to consider fatal to shatter the testimony of said witnesses to render the same unbelievable—Testimony of said witnesses was brushed aside—Considerable unexplained delay took place in dispatching the parcel to the Laboratory, which had made the report of Forensic Science Laboratory tampered with and unauthentic—No reliance could be placed on such report—No explanation was on record as to in whose custody the parcels were lying during that period—Investigation in the case had been conducted by S.H.O., complainant of the case, who hailed from operational wing of Police, while Art.18(4) of Police Order, 2002, envisaged that all registered and cognizable cases entailing punishment for more than three years would be investigated by an officer of the Police not below the rank of Sub Inspector Investigation Wing of the Police—Entire material investigation, in circumstances, was violative of said mandatory provisions of law, and  had no legal effect—Numerous doubts having been noticed in the prosecution case, benefit of the same was to be given to accused—Prosecution having failed to establish its case against accused beyond any reasonable doubt, impugned judgment, was not sustainable in the eye of law—Conviction and sentence, recorded against accused by the Trial Court, were set aside and he was acquitted of all charges levelled against him and he was set at liberty, in circum-stances.

2013  YLR  140   PESHAWAR-HIGH-COURT

SAFI ULLAH JAN VS State

38. 9(c)—Possession and trafficking of narcotic—Appreciation of evidence—Accused and co-accused were apprehended at a police barricade on the basis of tip-off and 99 kilograms of charas pukhta, 48 kilograms of charas garda and 38.2 kilograms of opium was recovered from the secret cavities of the truck they were driving—Trial Court convicted and sentenced accused and co-accused under S.9(c) of Control of Narcotic Substances Act, 1997—Contentions of accused and co-accused were that they were arrested from their house and were wrongly shown by the prosecution to have been arrested from the spot, and that alleged recovery of narcotic was planted against them—Validity—Case was of two versions—Prosecution in order to prove its version produced both direct (eye-witness account) as well as circumstantial evidence—Witness of ocular account and that of recovery memo, both remained coherent and non-discrepant in all material aspects of the recovery and despite lengthy cross-examination nothing favourable could be gained from them—Recovery of narcotics was also substantiated by Forensic Science Laboratory report—Prosecution was also able to prove safe custody and transit of samples—Contention of accused and co-accused regarding their arrest from their house was bereft of logic and reason and they introduced  such  a  story  for  the  first time while giving their statements under S.342, Cr.P.C and on oath under S.340(2), Cr.P.C—During cross-examination defence witnesses failed to prove the defence plea raised by accused and co-accused—Police had no personal reason to involve the accused and co-accused in a false case—Prosecution had proved its  case beyond any shadow of doubt but the accused and co-accused failed to discharge the burden of proving their plea of defence—Appeal was dismissed in circumstances.

2013  YLR  140   PESHAWAR-HIGH-COURT

SAFI ULLAH JAN VS State

1. 9(c)—Possession and trafficking of narcotic—Driver of vehicle—Knowledge of narcotics lying in the vehicle—Scope—Driver of the vehicle had the knowledge and control over all the articles lying therein.

2013  PCrLJ  1773   PESHAWAR-HIGH-COURT

GUL MAT SHAH VS State

1. 9(b) & (c)—Possessing and trafficking of narcotic—Appreciation of evidence—Sentence, reduction in—Allegedly 4350 Kgs. charas in the shape of  packets,  was  recovered  from  the  secret  cavities  of Tanker—Small quantity from each packet, was separated and mixed together; out of the mixture, three samples, each weighing 10 grams, were separated of which one sample was sent to Forensic Science Laboratory for chemical analysis—Record was silent about the number of Packets recovered from the tanker—Weight of said packets was also not known—Prosecution, under the law was under obligation to have first weighed every packet; and then separate a small quantity from each packet; properly sealed and mark them for chemical analysis—Conviction of accused would then be based, subject to the report of Forensic Science Laboratory—Said legal requirements, had not been complied with in the present case—Sample sent to Forensic Science Laboratory for analysis could not be said to be a representative sample in circumstances—Sentence awarded to accused, was bad in law, as only one sample of 10 grams was sent for chemical analysis, and the report thereof was received  as positive—Accused, in circumstances, were liable to be held responsible only for 10 grams charas, the offence whereof fell within the ambit of S.9(b) of Control of Narcotic Substances Act, 1997, and not under S.9(c) of Act—While converting S.9(c) of Control of Narcotic Substances Act, 1997 into S.9(b), thereof, sentence  of accused was reduced to the one already undergone by them—Fine amount was also reduced from Rs.1,00,000 to Rs.10,000.

2013  PCrLJ  1633   PESHAWAR-HIGH-COURT

MUHAMMAD SHAKOOR VS State

1. 9—Control of Narcotic Substances (Government Analyts) Rules, 2001, Rr. 4 & 5—Sending narcotic substance to laboratory—Non-compliance of rules—Effect—Provisions of Rules 4 & 5 of Government Analyst Rules, 2000, are directory in nature and in some particular circumstances and in so far as accused is not specifically caused prejudice, non-compliance of Rules 4 and 5 of Control of Narcotic Substances (Government Analyts) Rules, 2001, does not vitiate trial at all.

2013  PCrLJ  1633   PESHAWAR-HIGH-COURT

MUHAMMAD SHAKOOR VS State

Ss. 9(c) & 29—Narcotic substance, recovery of—Appreciation of evidence—Conscious knowledge—Proof—Shifting of onus to prove—Charas Garda weighing 159.2 kilogram was recovered from secret cavities of car in use of both the accused persons—Trial Court convicted the accused and sentenced them to imprisonment for life—Validity—Both the accused were in the exclusive possession of car, whereof narcotic drugs were recovered, presumption to be that the narcotics concealed in secret cavities of the car was in their knowledge and as such both the accused were said to be in conscious possession of narcotics, otherwise they must prove that they were ignorant of contraband—High Court did not find any infirmity in judgment passed by Trial Court resultantly conviction and sentence was maintained—Appeal was dismissed in circumstances.

2013  PCrLJ  1525   PESHAWAR-HIGH-COURT

FAISAL MUNIR VS The STATE through Latif Khan ASI Choki Mayar

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 21, 22 & 25—Police Order (22 of 2002), Art. 18(4)—Possession of narcotic, mode of making search and arrest—Bail, grant of—Further inquiry—Police officer below the rank of Sub-Inspector carrying out search, seizure, arrest and investigation proceedings—Non-availability of chemical examination report of samples—Effect—Accused was allegedly found in possession of 1750 grams of charas and 10 grams of heroin—Assistant Sub-Inspector (ASI), who was below the rank of Sub-Inspector, arrested the accused and allegedly recovered charas and heroin from his possession—Material investigation in the case in the  shape  of  seizure,  weighing  of  narcotic,  packing  and sealing of narcotic into a parcel, separation of some quantity of narcotic  for  analysis  through  Forensic  Science  Laboratory, had been carried out by the Assistant Sub-Inspector (ASI)—Entire action taken by the Assistant Sub-Inspector (ASI) by way of registration of case and its investigation from its inception to the end was violative of the Control of Narcotic Substances Act, 1997 and Police Order, 2002—Report of Forensic Science Laboratory regarding samples of recovered narcotic  had  not  been  received  as  yet, therefore, case against accused required further probe—Accused was granted bail in circumstances.

2013  PCrLJ  1374   PESHAWAR-HIGH-COURT

HAFTAY KHAN VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S.103—Recovery of narcotics—Appreciation of evidence—Recovery proceedings—Police witnesses—Charas weighing 20 kilogram was recovered from truck being driven by accused and he was sentenced to imprisonment for life—Plea raised by accused was that during recovery proceedings, no witness from public was associated and only police officials were witnesses—Validity—Non-compliance of S.103, Cr.P.C. could not be considered as strong ground for holding that trial of accused was bad in the eye of law—Police officials were competent witnesses and their statement could not be discarded merely for the reason that they belonged to police department—Accused was involved in the offence and conclusion drawn and reasons advanced by Trial Court showed fair evaluation of evidence which was in accordance with settled principles of criminal justice—High Court did not find any illegality or infirmity in judgment warranting interference, and sentence  was  maintained— Appeal  was  dismissed in circumstances.

2013  PCrLJ  1277   PESHAWAR-HIGH-COURT

Mst. SAIMA VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, grant of—Female accused with suckling babies—Welfare of minors—Scope—Accused-lady was allegedly found in possession of 8 kilograms of narcotic—Although police had prior information about trafficking of narcotics through females, therefore, it  was  morally  incumbent  upon  the  police  to  have  arranged  for  a  female  constable  to  search  the  accused,  however  same  was  not done— Accused  had  two  suckling  babies,  who  were  also in  jail, hence suffering of innocent babies could not be ignored—Welfare of minors  was  the  prime  consideration— Accused  was  also  not  likely to  get  maximum  punishment  for  the  offence  because  the  quantum of sentence had to commensurate with the quantum of narcotic substance recovered—No evidence was available on record to show that accused was a previous convict or was involved in cases similar to the present one—Accused was released on bail in circumstances.

2013  PCrLJ  1160   PESHAWAR-HIGH-COURT

GULAB DIN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession and trafficking of narcotics—Bail, grant of—Further inquiry—Co-accused already released on bail—Rule of consistency—Applicability—Conscious knowledge of presence of narcotics—Scope—Charas weighing 9645 grams was allegedly recovered from a  vehicle   which   was   being  driven   by   the  accused—Co-accused had already been granted bail—Mere presence of accused in driving seat did not prima facie, establish his involvement or his conscious knowledge regarding presence of narcotics—Case was one of further inquiry—Accused was released on bail in circumstances.

2013  PCrLJ  1160   PESHAWAR-HIGH-COURT

GULAB DIN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9—Bail—Narcotics recovered from vehicle being driven by the accused—Conscious knowledge of accused regarding presence of narcotics—Scope—Mere presence of accused in the driving seat of the vehicle would not prima facie, establish his involvement or his conscious knowledge regarding presence of narcotics.

2013  PCrLJ  915   PESHAWAR-HIGH-COURT

ALI MUHAMMAD VS State

1. 9—Narcotics recovered during a raid—Officials of Anti-Narcotics Force, evidence of—Scope—Where officials of Anti-Narcotics Force were members of the raiding party, their testimony could not be discarded merely on the ground that they were employees of Anti-Narcotics Force.

2013  PCrLJ  915   PESHAWAR-HIGH-COURT

ALI MUHAMMAD VS State

1. 9—Possession of narcotics—Driver of vehicle—Knowledge/ awareness of narcotic lying in vehicle—Scope—Knowledge and awareness of the narcotic would be attributed to the incharge of the vehicle— Person on the driving seat should be held responsible for the transportation of narcotics having knowledge of the same—Articles lying in the vehicle would be under the control and possession of the driver of the vehicle.

2013  PCrLJ  915   PESHAWAR-HIGH-COURT

ALI MUHAMMAD VS State

Ss. 9(c) & 25—Possession of narcotics—Appreciation of evidence—Accused allegedly tried to smuggle 4947 kilograms of charas, which was hidden in the body of a truck— Accused was the driver of the truck in question—Trial Court convicted and sentenced accused under S.9(c) of Control of Narcotic Substances Act, 1997—Validity—All prosecution witnesses/Anti-Narcotics Force officials demonstrated complete unanimity on all aspects of the case and defence could not point out any material contradiction in their statements—No enmity, ill-will or grudge had been alleged against the prosecution witnesses to falsely implicate the accused—Huge quantity of charas weighing 4947 kilograms could not be thrust upon the accused without any tangible concrete enmity—Non-association of private witnesses did not matter since application of S.103, Cr.P.C. had been excluded under S.25 of Control of Narcotic Substances Act, 1997—Prosecution witnesses being members of the raiding party were natural witnesses and their testimony could not be discarded merely on the ground that they were employees of Anti-Narcotics Force—Report of Forensic Science Laboratory  stated  that  recovered  substance  was  charas— Accused failed  to  establish  that during  the  raid  he  was  not  driving  the truck—Prosecution had been able to prove that at the time of apprehension the truck was under the control of the accused and was sitting  on  the  driving seat—Prosecution had successfully brought home the guilt of the accused—Appeal was dismissed in circumstances.

2013  PCrLJ  843   PESHAWAR-HIGH-COURT

INZAR VS State

1. 9(c)—Qanun-e-Shahadat (10 of 1984), Art. 122—Possession and trafficking of narcotics—Appreciation of evidence—Benefit of doubt—Only allegation against accused was that he was sitting in the rear seat of the vehicle—Case of accused, in circumstances, was distinguishable from the case of the driver and absconding co-accused—Prosecution, in circumstances, was required to produce evidence to prima facie prove that said person was in joint possession; and the vehicle was in his control, or that he had any concern or dealt with the property in any manner, particularly in the case when the narcotic substance was concealed in secret cavities of the car—If there was no evidence that such person knew that charas was concealed in secret cavities, or had knowledge of the said place, so as to attract the provisions of Art.122 of Qanun-e-Shahadat, 1984—If the property was lying open or accused knew the placement of property, the situation would be quite different—Accused had stated that he being a passenger, hired that taxi for taking his wife to the hospital, he produced medical prescription to prove the illness of his wife—Seizing officer and marginal witness had admitted that the driver of the vehicle was not present in the vehicle at the relevant time—Accused did not try to escape from the vehicle and contraband was not visible in the vehicle—Inference, in circumstances could be that contraband substance, either belonged to co-accused who fled away from the Police custody, or the driver who was not present at the relevant time—No efforts were made by the prosecution to get the clue of the driver—Nothing was on record in black and white which could point to the complicity of accused in the crime or to show that accused was in conscious knowledge of the incriminating substance recovered from the secret cavities of the vehicle—Conviction and sentence recorded by the Trial Court, could not be maintained, in circumstances and same were set aside extending accused benefit of doubt—Accused was acquitted of the charge and was set free, in circumstances.

2013  PCrLJ  640   PESHAWAR-HIGH-COURT

IMRAN VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S.103—Possessing and trafficking of narcotics—Appreciation of evidence—Prosecution evidence, was full of contradictions on material points—Signatures on murasila and recovery memo prepared by the complainant, did not tally with each other—Original murasila revealed overwriting on the date mentioned beneath the alleged signatures of the complainant—Prosecution witness had also contradicted the recovery memo—All witnesses were unanimous that the occurrence had taken place in the thickly-populated place—Provisions of S.103, Cr.P.C. were excluded and the association of independent witness was not necessary at the time of search, seizure and arrest—Statement of official witnesses, in circumstances, would be looked into very carefully; and would be scaled with great caution—Mere positive report of Forensic Science Laboratory was not sufficient to bring home guilt of accused—Complainant as well as Investigating Officer had failed to offer any plausible explanation for  missing  of  sample  for  a long   period  of 40/41 days; and then its receipt to the chemical analysis in the Laboratory with such delay—Contradictory and paradoxical statements of the prosecution witnesses and the dubious Chemical Examiner’s Report, had created serious doubt and dent in the prosecution case—Only a single doubt was sufficient for acquittal of accused—Conviction and  sentence  of  accused  by  the  Trial  Court, were set aside and accused were acquitted of the charge and were set free, in circumstances.

2013  PCrLJ  557   PESHAWAR-HIGH-COURT

SAJJAD VS State

Rr. 4 & 5—Control of Narcotic Substances Act (XXV of 1997),  S.9—Possession and trafficking of narcotic—Delay in sending samples—Non-compliance with Rules under Control of Narcotic Substances (Government Analysts) Rules, 2001—Effect—Mere delay in sending samples to Forensic Science Laboratory was not fatal to the prosecution case because Rules 4 and 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 placed no bar on the investigation officer to send the samples beyond the 72 hours of seizure or recovery of contraband—Provisions of Control of Narcotic Substances (Government Analysts) Rules, 2001 in such respect were directory and not mandatory in nature—Non-compliance with Rules 4 and 5 of the said Rules would not frustrate the very purpose of Control of Narcotic Substances Act, 1997 or render the recovery and arrest an absolute nullity.

2013  PCrLJ  557   PESHAWAR-HIGH-COURT

SAJJAD VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 4 & 5—Possession and trafficking of narcotic—Appreciation of evidence—Accused were apprehended at a police picket on the basis of secret information and 175 kilograms of charas pukhta was recovered from the secret cavities of the vehicle he was driving—Trial Court convicted and sentenced accused under S.9(c) of Control of Narcotic Substances Act, 1997—Validity—Accused was driving the vehicle in question and was arrested on the spot—F.I.R. was promptly lodged—Complainant (police official) was put to lengthy cross-examination but nothing favourable to the defence was unearthed—Statement of complainant was in full consonance with the facts and contents of the F.I.R. and recovery memo—Minor contradictions in statements of prosecution witnesses (police officials) were not sufficient to vitiate the prosecution case or make recovery doubtful—Forensic Science Report confirmed that all samples sent were charas—Mere delay in sending samples to Forensic Science Laboratory was not fatal to the prosecution case because Rules 4 and 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 placed no bar on the investigation officer to send the samples beyond the 72 hours of seizure or recovery of  contraband—Recovery  of  huge  quantity  of  charas from  secret  cavities of   vehicle  had  been  proved  beyond  any shadow of doubt—Appeal was dismissed and conviction of accused was maintained.

2013  PCrLJ  454   PESHAWAR-HIGH-COURT

SAEED NAWAZ VS State

1. 9(c)—Possession and trafficking of narcotics—Appreciation of evidence—Complainant, Police Officer, who admitted the arrest of accused persons on the spot, was put to lengthy cross-examination, but nothing favourable to the defence was unearthed—Complainant who made his statement fully in consonance with the facts and contents of the F.I.R. and recovery memo, had established the prosecution case up to the hilt—Arrest of accused on the spot and recovery of narcotic substances from secret cavities of the vehicle being driven by accused, could not be denied or rebutted—Except for the minor contradiction about the number of packets of the recovered contrabands, nothing favourable to accused could be brought on record, in the shape of evidence of the prosecution witnesses—Said contradiction was not of a serious nature, and same could not be considered to be fatal and sufficient to vitiate the recovery proceedings, or to make the recovery doubtful—Prosecution witness had stated that the recovery was effected in his presence from the secret cavities of the vehicle—Rest of the witnesses had confirmed their respective roles as assigned to them by the prosecution—Report of Forensic Science Laboratory had confirmed that the contraband recovered from accused, was actually charas—Delay in sending the samples to the Laboratory had fully been explained—No material inconsistency or discrepancy, was found in the statements of prosecution witnesses—Recovery of huge quantity of charas from the secret cavities of the seized vehicle had been proved beyond any shadow of doubt—Record also proved that at the time of arrest, accused was driving the vehicle and co-accused was sitting in the front seat of said vehicle—Positive report of Laboratory supported the prosecution version and the prosecution on the strength of unimpeachable and consistent evidence had succeeded in bringing home the charge against accused beyond any shadow of reasonable doubt—All the witnesses of the prosecution, who had witnessed the recovery of the contraband from the vehicle, had remained consistent—Trial Court had rightly rejected defence version of accused persons regarding minor contradiction about the number of packets of the contraband—Prosecution had successfully established its case through confidence-inspiring evidence of eye-witnesses recorded before the Trial Court, which was not at all shattered by the defence, during cross-examination—Well-founded, well-reasoned order of the Trial Court, needed no interference by High Court.

2013  PCrLJ  182   PESHAWAR-HIGH-COURT

MIAN KHAN VS State

13. 9(c)—Juvenile Justice System Ordinance (XXII of 2000), S. 11—Possession and trafficking of narcotic—Appreciation of evidence—Release of juvenile on probation—Discretion of court—Scope—Conscious knowledge of narcotic—Scope—Accused, who was a juvenile at the time of commission of alleged offence, was forced by the police to stop at a checkpoint and after being apprehended he himself disclosed presence of 13.2 kilograms of charas in petrol tank of his vehicle— Trial Court convicted and sentenced the accused under S.9(c) of Control of Narcotic Substances Act, 1997—Validity—All witnesses consistently deposed that accused was apprehended on the spot along with his vehicle, which was under his control as he was driving the same at the relevant time—No discrepancy in statement of any witness despite being subjected to searching cross-examination—Accused had conscious knowledge of narcotics concealed in the petrol tank of his vehicle because when he was signalled to stop he tried to escape and was subsequently forced to stop by blocking the road—After arrest, accused himself disclosed presence of narcotics in the vehicle—Accused was in exclusive control of the vehicle in which narcotics were kept in secret cavity, therefore, he would be deemed to be in the exclusive possession of the charas recovered from the vehicle—Nothing on record suggested that narcotic was planted on accused or that he was falsely charged—Samples taken from the recovered substance were sent to Forensic Science Laboratory, which found them to contain charas—At time of framing of charge against accused he was aged about 17/18 years—Section 11 of Juvenile Justice System Ordinance, 2000 provided discretion to court to decide the issue of release of juvenile on probation—Not exercising such discretion or in-action in exercising such discretion would offend the dictates of law—Trial Court, in the present case, had not exercised the discretion vested in it under S.11 of Juvenile Justice System Ordinance, 2000, which surely prejudiced the accused—Appeal was partially allowed, conviction and sentence awarded to accused was maintained, however, case was remanded back to Trial Court to decide the same after providing opportunity of hearing to accused and rendering reason, regarding exercise of discretion, as provided under S.11 of Juvenile Justice System Ordinance, 2000 to release the accused on probation and the terms thereof.

2013  MLD  1860   PESHAWAR-HIGH-COURT

Mst. NAZO VS State

1. 497—Control of  Narcotic  Substances  Act  (XXV of 1997), S.9(c)—Possession of narcotics—Bail, refusal of—Pregnant female accused with sucking baby—Accused-lady while travelling in a car was stopped at a police checkpoint and upon  her search five kilograms of charas was found tied with the string of her trouser—Plea of accused was that she was mother of a suckling baby and was also four months’ pregnant—Validity—Accused was stopped at a police checkpoint and searched by a lady constable—Report of samples sent to Forensic Science Laboratory was in positive—Nothing was available on record to show that witnesses had any mala fide or ulterior motives to falsely implicate the accused—Had the accused been concerned about her suckling baby, she would not have resorted to indulge in such activity which had afflicted the whole society and especially the younger generation—Prima facie accused was connected with the commission of the offence—High Court observed that off late narcotic mafia had devised new modes and means of smuggling narcotics by employing ladies and youngster in the hope that even if they got caught red-handed, they might be extended concession of bail by the courts on grounds of womanhood or juvenility and that such conduct amounted to taking liberty with the law of the land—Bail petition was dismissed accordingly.

2013  MLD  1822   PESHAWAR-HIGH-COURT

ABDUL HUSSAIN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Grant of probation to accused for good conduct—Contraband had been recovered from the direct possession of the accused and report of the Forensic Science Laboratory was positive—Seizing Officer and author of the murasila reiterated his version set forth by him in his murasila report—Marginal witness of recovery memo had supported the version of Seizing Officer and testified that said memo bore his signature and had established his presence on the spot—Seizing Officer and marginal witness of recovery memo were consistent on each and every material particular of the occurrence—Opportunity of cross-examination had been provided but nothing could be extracted which could be beneficial for the defence—No malice, ill-will or enmity was attributed to the prosecution witnesses—Mere fact that the prosecution witnesses were police officials would not be sufficient to discard their confidence inspiring and trustworthy testimony—Police witnesses were also as good witness like others and their testimony could be relied upon unless and until any ill-will or enmity on their part towards the accused was proved—Nothing was on record to prove previous involvement or conviction of the accused in such like cases who was of advance age of 49/50 years—Accused being first offender was released on bail on existing bail bonds and was placed on probation for good conduct for the period of his sentence i.e. 3 years as a rigorous imprisonment.

2013  MLD  1703   PESHAWAR-HIGH-COURT

SHER REHMAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9—Possession of narcotic—Bail—Scope—Quantity of narcotic and corresponding expected quantum of punishment—For purpose of bail in cases of possession of narcotic the quantity of contraband and expected quantum of punishment to be awarded at trial had to be taken into account while allowing bail to the accused.

2013  MLD  1703   PESHAWAR-HIGH-COURT

SHER REHMAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic—Bail, grant of—Quantity of narcotic recovered and corresponding expected quantum of punishment—Scope—Narcotic weighing three kilograms was found under the driving seat of a  vehicle—Accused was driving the vehicle in question—Punishment for contraband weighing less than ten kilograms was upto fourteen years, therefore, keeping in view the recovered contraband, accused was not likely to be awarded punishment for more than two years—Accused was no more required by the investigation agency and was also neither a previous convict nor involved in offences similar to the present one—Accused was granted bail in circumstances.

2013  MLD  1078   PESHAWAR-HIGH-COURT

SAIF-UL-ABBAS VS State

Ss.9(c) & 29—Criminal Procedure Code (V of 1898), S.342—Recovery of narcotics—Appreciation of evidence—Defence plea—False implication—Onus to prove—Accused was driving car out of which Charas weighing 185 kilograms was recovered—Trial Court convicted the accused and sentenced him to imprisonment for life—Accused raised the plea that he was falsely implicated—Validity—Nothing was available on record to show that quantity of substance recovered was exaggerated or that all packets recovered from vehicle were not proved to have been of substance other than narcotics—Discrepancies or contradictions, if any, in statements of prosecution witnesses, highlighted by accused were not of a nature as could negate recovery resulting into dislodging entire prosecution version—Absence of any motive on the part of prosecution witnesses would further negate possibility of false implication—Onus to prove defence plea, under S.29 of Control of Narcotic Substances Act, 1997, was on the accused to have led evidence in support of his innocence regarding lack of knowledge that he was ignorant about presence of any narcotics in vehicle in question and to such effect his statement recorded under S.342, Cr.P.C. could be quoted wherein he refused to produce any defence evidence in support of his innocence—Accused being driver of motor car in question was presumed to be in control of the vehicle about which he had complete knowledge even presence of anything in it—Question of ignorance regarding presence of any contraband in the vehicle did not arise—Charge against accused was proved beyond any shadow of doubt and Trial Court had rightly convicted and sentenced him—Findings of Trial Court were free from any infirmity and were not open to any interference—Appeal was dismissed in circumstances.

2013  MLD  894   PESHAWAR-HIGH-COURT

Mst. ZARINTAJA VS State

1. 9(c)—Possessing and trafficking of narcotic—Appreciation of evidence—Accused could not substantiate their plea that they had been enroped as they had refused to take the complainant for attending a marriage ceremony—Said allegation did not appeal to reason that on mere refusing such demand of the complainant, accused were involved in the case for arranging such a huge quantity; and also enroping the female folk in the case—Accused persons had never been involved in such offences before—Request of counsel for accused for taking lenient view against accused persons being genuine, was acceded to, keeping in view the contradictions regarding the recovery of contraband and sending only one sample out of four slabs separated from each packet, which warranted reduction of sentence—One lady accused was 60 years old—Punishment already served by accused persons, in circumstances, was sufficient to meet the ends of justice; and same was reduced accordingly.

2013  MLD  334   PESHAWAR-HIGH-COURT

MALANG SHAH VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51(1)—Possession of narcotic—Bail, grant of—Fifty kilograms of contraband charas was allegedly recovered from the vehicle, which was being driven by the accused—Quantity of narcotic allegedly recovered was huge—Prosecution case was fully supported by the police officials, who had no ill-will or grudge with the accused—Report of Forensic Science Laboratory was in positive—Reasonable grounds appeared for believing that accused was connected with the offence charged—Case of accused not only fell within the restrictive clause of S. 497, Cr.P.C but also attracted the embargo of S. 51(1) of Control of Narcotic Substances Act, 1997—Bail application of accused was dismissed in circumstances.

2013  MLD  133   PESHAWAR-HIGH-COURT

KHALID KHAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic—Bail, refusal of—Conscious knowledge of narcotic—Scope—Accused, who was driver of the vehicle in question, was stopped at police checkpoint and upon search, 20 kilograms of charas was recovered from specially designed secret cavities in the vehicle—Accused was the only person present in the vehicle and was also driving the same—Accused being driver of the vehicle was required to know each and everything about the vehicle as he was solely in-charge of it—Available material indicated that accused had conscious knowledge about presence of narcotics in the vehicle—Alleged offence was punishable with either death or anything not less than life imprisonment, therefore, it was covered by the restrictive (prohibitory) clause of S.497, Cr.P.C—Challan was complete and was likely to be submitted in Trial Court shortly—Bail petition of accused was dismissed, in circumstances.

2013  MLD  57   PESHAWAR-HIGH-COURT

ZARGHUN SHAH VS State

Ss. 9(c) & 29—Possessing and trafficking narcotics—Appreciation of  evidence—Accused  being  driver  of  the  vehicle  was  Incharge  of  the  same,  and  all  the  articles  lying  therein  were  under  his  control  and possession—In the present case, 116 packets of charas garda, 58 packets of charas pukhta and 18 packets of opium were recovered—Plea of accused that he was innocent about the transportation of the narcotics by concealing the same in the especially designed cavities, was not tenable—Accused had not denied the recovery from the vehicle being driven by him—Prosecution witnesses having no background of any enmity/ill will with accused, question that accused was substituted for the real culprit, did not hold the field—Prosecution witnesses could not thrust upon accused huge quantity of narcotics being recovered, which could not be planted against him—Once the prosecution had prima facie established its case, then under S.29 of Control of Narcotic Substances Act, 1997, burden shifted upon accused to prove contrary to the plea of the prosecution, but accused had failed to discharge that burden—Sufficient evidence was available on record to suggest that due course had been adopted in connection with destruction of case property—Investigating Officer had not been specifically and seriously cross-examined by the defence counsel in  that  respect—Prosecution  witnesses  had  been cross-examined  in  detail,  but nothing had come from their mouth to benefit accused—Evidence of recovery in respect of quantity of narcotic substances, recovered  and  sent  for  chemical  analysis,  was  consistently  estab-lished by the prosecution witnesses, which was also supported by Forensic  Science  Laboratory’s  report—Normal  sentence  in  such  like  cases  was  death,  however,  in  no  circumstances,  it  should  be  less than life imprisonment—High Court could not consider the  request for lesser punishment, in circumstances—Order accordingly.

2013  MLD  48   PESHAWAR-HIGH-COURT

YOUNAS KHAN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(b) & S.9(c)—Possession and trafficking of narcotics—Bail, grant of—Further inquiry—Borderline case—Charas weighing 1 kilogram was allegedly recovered from the accused—Present case was a borderline case between Ss. 9(b) and (c) of Control of Narcotic Substances Act, 1997—Punishment  to  be  awarded  for  the  offence  was always in commensuration with the quantum of recovery of contraband/crime, and the quantum of punishment had to be determined by the Trial Court—Questions as to whether in such like cases, accused would be liable to the maximum punishment provided for the offence; and whether the punishment in case of proof of the guilt after trial in circumstances would fall under the prohibitory clause, were questions requiring further probe—Record was also silent as to whether accused was habitual or previous convict etc.—All such facts made the case against accused one of further inquiry—Accused was directed to be released on bail, in circumstances.

2013  PLD  58   PESHAWAR-HIGH-COURT

MURAD GUL VS THE STATE through Advocate-General  Khyber Pakhtunkhwa, Peshawar

Ss. 561-A, 154 & 265-K—Control of Narcotic Substances Act (XXV of 1997), S. 9(b)—Possession of narcotic—Petition for quashing of F.I.R., dismissal of—Plea of mala fide raised by accused to seek quashing of F.I.R.—Validity—Plea of mala fide intention could not be considered for quashing of criminal proceedings in a slipshot manner without affording an opportunity to the prosecution to prove its case because High Court, while exercising its inherent power, could not hold an inquiry as to whether the evidence available on record was reliable or not—Since case of accused was already put in the Trial Court, the court had to be allowed to proceed with the case and record statement of prosecution witnesses in order to confirm the guilt or innocence of the accused—Accused, however, had the remedy/right to file an application for his acquittal under S.265-K, Cr.P.C at any stage of the trial—Revision petition seeking quashing of F.I.R. was dismissed accordingly.

2013  YLR  2651   LAHORE-HIGH-COURT-LAHORE

The STATE through Deputy Director (Assets) Regional Directorate, Anti-Narcotics Force, Lahore VS SHARAF-UD-DIN SHEIKH

Ss. 9, 13 & 15—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4—Criminal Procedure Code (V of 1898), S.417(2-A)—Possessing, trafficking of narcotics and manufacturing and owning intoxicant—Appeal against acquittal—Nothing was on record to show that place of recovery was owned by accused—Alleged ostensible owner of said place was also not produced as prosecution witness before the Trial Court—Statements of co-accused under S.164, Cr.P.C. were recorded in the absence of accused—Accused was never furnished an opportunity to cross-examine both co-accused—Statement of co-accused recorded under S.164, Cr.P.C., could not be used as a piece of evidence against accused—Prosecution had not been able to furnish any nexus of accused with alleged place of recovery through any reliable ocular documentary account—No contraband was recovered from the physical possession of accused—Prosecution had no incriminating material against accused to connect him with the alleged offence—Case was of no evidence to the extent of accused—Presumption of innocence of accused was double in case of acquittal—Interference in appeal against acquittal could only be made, if it appeared that there had been gross misreading or non-reading of evidence amounting to miscarriage of justice—Law Officer had not been able to make out any good ground to interfere in the well-reasoned judgment of the Trial Court granting acquittal in favour of accused—Impugned judgment of the Trial Court, was neither based on non-reading or misreading of evidence, nor it suffered from any perversity, material irregularity or legal infirmity—Judgment passed by the Trial Court granting acquittal to accused, could not be interfered with, in circumstances.

2013  YLR  2443   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD IQBAL VS State

1997. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Prosecution evidence was consistent, unbiased and confidence-inspiring, and had come from a source which was quite independent—Complainant/Investigating Officer and recovery witness, corroborated each other on salient features; and their statements not only seemed to be natural, but were trustworthy—Recovery of heavy quantity of contraband heroin, could not be rebutted by accused—Narcotics valuing crores of rupees, could not be termed to have been planted by Government Officials from their own pocket—Recovery of narcotics having been established, and the reports of Chemical Examiner in that regard being positive, Trial Court was justified in convicting accused under S.9(c) of Control of Narcotic Substances Act, 1997.

2013  YLR  2443   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD IQBAL VS State

1. 9(c)—Possessing and trafficking narcotics—Sentence, reduction in—Accused required to be dealt with iron hands as he was involved in a narcotic business, which was creating bad name for Pakistan in the international community as a whole—Certain aspects in the case would help in determining of quantum of sentence; whole narcotic substance i.e. heroin in the case was recovered from co-accused; occurrence was stated to have taken place on 25-3-2005, but date in recovery memo was mentioned as 28-3-2008; Report of Chemical Examiner had not been signed by the Chemical Examiner; co-accused from whom heavy quantity of contraband heroin was recovered, made confession during the course of trial, and Trial Court while extending extraordinary politeness reduced his sentence to that already undergone by him; accused was not previously involved in any other criminal case; it could safely be said that accused was first offender—Section 9(c) of Control of Narcotic Substances Act, 1997, provided both death sentence, as well as imprisonment for life, to meet the ends of justice it would be justified, if the sentence of death was converted into imprisonment for life—Sentence of death was modified into imprisonment for life and benefit of S.382-B, Cr.P.C., was also extended to the accused.

2013  YLR  2145   LAHORE-HIGH-COURT-LAHORE

DILDAR HUSSAIN VS State

Ss. 9(b) & 15—Criminal Procedure Code (V of 1898), S. 265-K—Possession of narcotics, aiding, abetment or association in narcotic offences—Appreciation of evidence—Implication of accused on basis of confession of co-accused—Effect—Allegation against accused was that he was a drug trafficker, who tried to smuggle heroin through co-accused—Said co-accused was apprehended at an airport and 210 grams of heroin was recovered from each of his shoes, after which he disclosed that said heroin had been handed over to him by the accused—During trial accused filed an application under S.265-K, Cr.P.C., seeking his acquittal, but same was dismissed—Validity—Accused had not been arrested on the spot and no recovery of narcotic substance was effected from his possession rather he was implicated on the basis of disclosure allegedly made by co-accused—Such disclosure made by co-accused was not admissible in evidence—Since no legally admissible incriminating material was available against accused , therefore, there was no probability of him being convicted—Appeal was allowed, impugned order of Trial Court was set aside and application of accused under S.265-K, Cr.P.C. was accepted and he was acquitted of the charge.

2013  YLR  2009   LAHORE-HIGH-COURT-LAHORE

ABDUL MAJEED alias MITHU VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Qanun-e-Shahadat (10 of 1984), Art. 22—Possession of narcotics—Bail, grant of—Further inquiry—Non-conducting of identification parade—Effect—Allegation against accused was that he was carrying a sack of charas weighing 50 kilograms on his motorcycle, and on seeing the police, he threw it away and made good his escape—No identification parade was conducted–Investigating officer had opined that charas was found unattended and there was no police official who saw the accused throwing away the sack of charas—Accused was no more required for further investigation—Case was one of further inquiry into guilt of accused, who was admitted to bail accordingly.

2013  YLR  711   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ASHFAQ VS State

1. 9(b)—Possessing, and trafficking the narcotics—Appreciation of evidence—Benefit of doubt—“Charas” weighing 107 grams was allegedly recovered from possession of accused—Prosecution witnesses were Police Officials—Recovery witnesses were not consistent with regard to the distance between the place of recovery and the police post and also about the colour of “charas” recovered from the accused—Said witnesses were not in agreement even in respect of the number of passengers of the vehicle on which the accused was travelling—Benefit of doubt was extended to  accused  in  circum-stances and he was acquitted accordingly.

2013  YLR  598   LAHORE-HIGH-COURT-LAHORE

ZAFAR IQBAL VS State

Ss.9(c) & 48—Possession of narcotic—Appreciation of evidence—Benefit of doubt—Allegation against accused (appellant) was that he was carrying a bucket of narcotic on his bicycle and on seeing the police contingent, he left his bicycle and managed to escape—Trial Court convicted the accused under S.9(c) of the Control of Narcotic Substances Act, 1997—Contentions of the accused were that there were material contradictions between the evidence of the complainant and recovery witness, who were both police officials; that story of prosecution regarding escape of accused in the presence of eleven police officials did not appeal to reason, and that the complainant was also the Investigating Officer of the case, which fact by itself was sufficient to suggest partiality of the investigation—Validity—Prosecution had not stated that accused was known to the witnesses (police officials) previously, therefore,  identity of accused became doubtful as he was not apprehended from the spot—Accused had categorically denied the factum of coming to the place of the alleged incident, throwing away his bicycle and managing to escape, in view of which convincing and corroborative evidence was required to prove the identity of the accused as the person accused for the offence beyond any shadow of doubt—Witnesses (police officials) had not disclosed their source of information regarding their knowledge about the particulars of the accused being the correct person accused for the  offence—Prosecution failed to establish that the contraband material allegedly recovered from the accused was a narcotic as safe custody of the sample parcel was seriously doubtful—Police official who had transmitted the sealed sample parcel to the Chemical Examiner was not produced by the prosecution as a witness—Date on which police official handed over the sample parcel to the Chemical Examiner was different from the date mentioned on the report of the Chemical Examiner—Prosecution had failed to produce any evidence regarding safe custody of the sample parcel, therefore, it was not safe under criminal administration of justice to endorse conviction and sentence awarded to the accused—Alleged recovery of huge quantity of contraband material by itself was not sufficient to prove the charge against the accused, which fact was required to be established by the prosecution beyond shadow of doubt by producing convincing and credit worthy evidence—Appeal of accused was accepted, impugned order of Trial Court was set aside and accused was acquitted of the charge by extending him benefit of doubt.

2013  YLR  598   LAHORE-HIGH-COURT-LAHORE

ZAFAR IQBAL VS State

Ss.9(c) & 48—Possession of narcotic—Appreciation of evidence—Interpretation of provisions in the Control of Narcotic Substances Act, 1997—Scope—Provisions of the Control of Narcotic Substances Act, 1997, provided stringent punishment and as such  same provisions were to be construed strictly.

2013  YLR  547   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD JAHANGIR VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, grant of—Further inquiry—Grudge of police officials against accused—No previous criminal record—Accused and his mother had been illegally detained by police officials of concerned police station, prior to registration of present F.I.R., and were only recovered when High Court deputed a bailiff in response to a constitutional petition—F.I.R. was registered against concerned police officials when bailiff sent his report to the Area District Police Officer (DPO) because of which police officials of said station must have borne a grudge against the accused and his family, which called for further inquiry into accused’s case—Accused had no previous criminal record and narcotics allegedly recovered from accused slightly exceeded the upper limit prescribed in S. 9(b) of Control of Narcotic Substances Act, 1997, therefore, whether maximum punishment of fourteen years was to be awarded to accused or not , also called for further inquiry into the matter—Accused being behind bars since about four months and no more required by the police for investigation, he was admitted to bail.

2013  YLR  53   LAHORE-HIGH-COURT-LAHORE

Mst. RANI BIBI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, grant of—Accused was allegedly found in possession of 1250 grams of charas—Complainant (police) sent a decoy witness to purchase illicit narcotic from accused, after which police conducted a raid and recovered the narcotic from the accused along with the sale price—Accused appeared to be octogenarian and her case hinged upon a border line case—Accused being in jail, was not required  for  investigation  and  was therefore admitted to bail.

2013  PCrLJ  1597   LAHORE-HIGH-COURT-LAHORE

WAJID ALI VS State

1. 9(b)—Criminal Procedure Code (V of 1898), Ss.243 & 412—Possessing and trafficking narcotic—Appreciation of evidence—Right of appeal of accused who pleaded guilty—Accused pleaded guilty and the Trial Court recorded confessional statement of accused—Record had clearly revealed that accused was intimated about the charge and consequences of confession—Show-cause notice was given to accused under S.243, Cr.P.C.—Accused remained consistent with confessional statement—Trial Court, after fulfilling codal formalities, recorded confessional statement of accused and certified that same was true and voluntary—Accused had made his confessional statement voluntarily, and it did not suffer from any defect of form or substance—Retraction of confession was not enough to make it involuntary, or diminished its intrinsic value—By virtue of provision of S.412, Cr.P.C., accused who pleaded guilty to the charge, had no right of appeal against his conviction, but could maintain an appeal only to the extent of the legality of the sentence passed against him by the Trial Court—Trial Court while convicting accused kept into the consideration settled law—Conviction of accused recorded by the Trial Court was not open to any legitimate exception—Conviction and sentence passed by the Trial Court was maintained  and  appeal  was dismissed, in circumstances.

2013  PCrLJ  910   LAHORE-HIGH-COURT-LAHORE

Rai MUHAMMAD ASIF NAWAZ VS State

Ss. 9(c) & 15—Pakistan Prisons Rules, 1978, R. 216—Constitution of Pakistan, Arts.25 & 199—Constitutional petition—Remissions—Discrimination—Petitioner was convicted under Control of Narcotic Substances Act, 1997, and his grievance was that he was entitled to special remission under Rule 216 of Pakistan Prisons Rules, 1978—Validity—Policy of remissions formulated and issued by Punjab Government on 27-1-1993, did not offend any clause of the Constitution or any provision of law—Order passed by authorities declining special remissions to petitioner being convict/prisoner under Control of Narcotic Substances Act, 1997, did not suffer from any legal infirmity—Petition was dismissed in circumstances.

2013  PCrLJ  394   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD HANIF ABBASI VS State

1. 498—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 16—Ad interim pre-arrest bail, confirmation of—Ephedrine quota case—Allegation against the accused was that his company was allotted 500 kilograms quota of Ephedrine which was not used for the preparation of medicine rather same was sold to smugglers—Application for grant of licence in respect of Ephedrine, its quota and subsequent supply in the shape of manufactured medicine were not denied by the concerned companies/firms or their officials—Regarding misuse of allotted quota, in the light of the available record, investigating officer was still in the process of collecting evidence—No evidence was available to connect the accused with the commission of an offence falling under Ss.6, 7 and 8 of Control of Narcotic Substances Act, 1997, and in view of the allegations and evidence collected so far, at best prosecution was trying to make out a case for violation of S.16 of Control of Narcotic Substances Act, 1997 , which was a bailable offence—Case was one of further inquiry—Ad interim pre-arrest bail already granted to accused was confirmed in circumstances.

2013  PCrLJ  279   LAHORE-HIGH-COURT-LAHORE

FORCE COMMANDER, REGIONAL DIRECTORATE ANF, RAWALPINDI VS JUDGE SPECIAL COURT (CNS)

1. 338—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 14 & 15—Possession of narcotic, aiding, abetment or association in narcotic offences—Statement of approver, recording of—Scope—Competency of Special Prosecutor (Anti-Narcotics Force) to file application for declaring an accused as approver—Scope—Accused and co-accused were allegedly involved in granting quotas of Ephedrine against the rules—Application filed by Special Prosecutor (Anti-Narcotics Force) for declaring the co-accused as an approver so as to record his statement was dismissed by the Trial Court on the grounds that complete challan had not been submitted; that the trial had not commenced so far; that the application pertaining to the pardon so as to declare the co-accused as an approver had not been moved by the In-charge of prosecution, and that the proposed statement of the co-accused had not been appended with the application—Validity—Statement of the approver could be recorded during the investigation or inquiry or trial, therefore, there was no condition precedent attached to the statement of the approver under S.338, Cr.P.C., and same could be recorded at any time before the judgment—Special Prosecutor (Anti-Narcotics Force) was undoubtedly the In-charge of prosecution and when a pardon had been tendered by the competent authority, Special Prosecutor was fully competent to move the application for declaring the co-accused as an approver—Record showed that statement of the co-accused was available on the record and had been appended with the petition filed by the Special Prosecutor—Impugned order of the Trial court, therefore, was not based on sound reasoning—Revision petition was accepted, impugned order was set aside and the Trial Court was directed to proceed with the matter as per request of the Special Prosecutor for declaring the co-accused as approver in the case on the conditions to be set out by the Trial Court and to record the statement of the approver in accordance with the law.

2013  MLD  1183   LAHORE-HIGH-COURT-LAHORE

Sheikh ANSAR AHMAD VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 14, 15 & 16—Aiding, abetment or association in narcotic offences—Bail, grant of—Further inquiry—Accused, who was a Drug Controller at the Health Department, was alleged to have played an instrumental role in issuance of Ephedrine quota to different companies in huge quantities beyond the prescribed limits—Investigation carried out to date and record of the case showed that accused allegedly misused his authority for issuance of quota to different companies—Violation of Ss.6, 7 & 8 of Control of Narcotic Substances, 1997 could only be seen after recording of evidence at trial stage—Presently accused could only be saddled with penalty provided under S. 16 of Control of Narcotic Substances, 1997, which was a bailable offence—Case of accused required further inquiry—Accused was admitted to bail accordingly.

2013  MLD  425   LAHORE-HIGH-COURT-LAHORE

Raja MAZHAR HUSSAIN VS FORCE COMMANDER, RD ANF, RAWALPINDI

S.516-A—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Constitution of Pakistan, Act. 199—Constitution petition—Possessing narcotic drug—Superdari of vehicle—Vehicle 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.

2013  PLD  586   KARACHI-HIGH-COURT-SINDH

ASIF VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic—Appreciation of evidence—Accused was allegedly apprehended on basis of prior information and 11 kilograms of chars was recovered from the back seat of the vehicle, wherein accused was sitting—Trial Court convicted and sentenced accused under S.9(c) of Control of Narcotic Substances Act, 1997—Accused contended that according to F.I.R. recovery was effected from the back seat of the vehicle but according to the charge framed recovery was effected from the dashboard of the vehicle; that complainant (police official) had investigated the case himself; that samples were sent to chemical examiner after a delay, and that no private persons were engaged to witness the recovery proceedings—Validity—Defect in framing of charge was not of such nature that would vitiate the entire proceedings—Evidence adduced did not contain any material contradictions about the material aspects of the case—Since there was no objection from the accused that contraband was unsealed or tampered with or manipulated, therefore delay in sending the same for examination would not affect the result of analysis—Report of chemical examiner was in positive and defence had neither disputed nature of substance nor challenged the authenticity of the report of chemical analyst—Although no private person had been associated to witness recovery proceedings, but compliance with provisions of S.103, Cr.P.C. was excluded in narcotics cases by virtue of S.25 of Control of Narcotic Substances Act, 1997—Prosecution had produced tangible and trust-worthy ocular and circumstantial evidence against the accused to connect him with the commission of the offence—Appeal was dismissed accordingly.

2013  YLR  2560   KARACHI-HIGH-COURT-SINDH

AYAZ PATHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c), 14, 15, 25 & 29—Possessing, trafficking of narcotics, and aiding, abetting and associating in narcotic offences—Bail, refusal of—Prosecution witnesses, had no enmity whatsoever, with accused to foist such a huge quantity of nine Kilograms of charas upon him—Chemical Examiner’s report regarding recovered charas was found positive—Substance recovered from accused, was proved to be charas—Prosecution, in circumstances, had discharged its initial onus while proving that the substance recovered from accused was contraband charas—Sufficient material was available on record, which had shown that accused was found sitting on front seat of the vehicle, and he was found responsible for transportation of narcotics—Defence plea that the narcotic was not recovered from possession of accused, was not true—Alleged offence was heinous one falling within prohibited clause of S.497, Cr.P.C.—Contention that respectable inhabitants of the locality, were not associated as witness or mashir, was not attracted in view of S.25 of the Control of Narcotic Substances Act, 1997—Applicability of S.103, Cr.P.C., had been excluded in the cases of recovery of narcotics—Evidence of Police Officials, was as good as of any other public witness, in absence of any malice or mala fide—Defence plea raised by accused, required deeper appreciation of evidence, which was not admissible at bail stage—Under provisions of S.29 of Control of Narcotic Substances Act, 1997 presumption would be that a person who was found in possession of narcotics, had committed offence, unless otherwise proved—Reasonable grounds, prima facie, did exist to believe the involvement of accused in the offence alleged against him—Bail application having no merits for consideration, was dismissed, in circumstances.

2013  YLR  2051   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ASLAM VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Samples, were sent to Chemical Examiner, the very next day of occurrence, and report of Chemical Examiner was in positive—Both prosecution witnesses, were put to the test of lengthy cross-examination, but their testimony qua the date of incident, quantity of charas and place of incident could not be shattered—Contradictions, allegedly pointed out by counsel for accused, were minor in nature and would not be fatal to the prosecution case—Accused was apprehended while holding the plastic bag containing contraband charas intending thereby to transport the same to another place—No reason or ground was available to show that accused was not in knowledge of substance lying in his bag—Accused was proved to be taking away the contraband with pre-planning—Prosecution had also proved departure and arrival of the complainant party by producing entries—Accused also failed to show any enmity or ill-will against the complainant and mashir causing them to depose against him falsely—Foisting of such a huge quantity of contraband charas upon accused was not possible—Trial Court, in circumstances did not commit any illegality while awarding sentence to accused, against whom sufficient evidence was on record to prove charge under S.9(c) of Control of Narcotic  Substances  Act,  1997—No ground being available to interfere  in  the  impugned  judgment  of  the Trial Court, appeal against said judgment was dismissed, in circumstances.

2013  YLR  1687   KARACHI-HIGH-COURT-SINDH

UMEED VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 11, 15 & 16—Penal Code (XLV of 1860), S. 34—Qanun-e-Shahadat (10 of 1984), Arts. 38 & 39—Possession of narcotics, operating premises or machinery for manufacture of narcotic drugs, etc., aiding, abetment or association in narcotic offences, common intention—Bail, grant of –Implication on basis of confessional statement of co-accused made before the police—Effect—Accused allegedly supplied chemicals to co-accused persons for preparation of heroin—Sole evidence against accused was the confessional statement of a co-accused made before the Investigating Officer–Such confessional statement of co-accused was not admissible under Arts. 38 and 39 of Qanun-e-Shahadat, 1984—Case was one of further inquiry into guilt of accused—Accused was admitted to bail accordingly.

2013  YLR  1641   KARACHI-HIGH-COURT-SINDH

ISHFAQUE AHMED VS State

1. 9(b)—Possession of narcotic—Appreciation of evidence—Delay in sending samples for examination—Possibility of tampering with case property—Non-association of private witnesses—Roznamcha entries not produced— Effect— Police allegedly apprehended accused while on patrol duty and found 200 grams of charas in his possession—Trial Court convicted and sentenced accused under S. 9(b) of Control of Narcotic Substances Act, 1997—Validity—Allegedly recovered charas was sent to the Chemical Examiner with a delay of about 9 days for which no explanation was given—Record did not show as to who had possession of the charas during such intervening period—Tampering with case property could not be overlooked in such circumstances—Accused was arrested from a thickly populated area surrounded by shops and hotels, but no private person was associated as mashir—Accused had taken a specific plea that excise officials had enmity with his father, therefore, it would have been better for prosecution to have examined independent persons of the locality—Original departure entry from police record had not been produced—Prosecution failed to establish its case against accused beyond any shadow of doubt—Appeal was allowed, impugned judgment of Trial Court was set aside and accused was acquitted of the charge.

2013  YLR  1518   KARACHI-HIGH-COURT-SINDH

BAQI JAN VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Out of 100 Kgs. of charas, allegedly recovered, 5 Kgs. was sent to chemical analyser, rest 95 Kgs. was sealed separately, but prosecution witnesses did not make identification of said remaining sealed case property; it could not, in circumstances be confirmed that property produced was the same one, which was alleged to have been recovered from the possession of accused—Nothing was on the record to show as to whom the vehicle/jeep in question from which charas was recovered belonged—Narcotics allegedly recovered from the possession of accused, was sent to Forensic Science Laboratory after prolonged delay without any reason and such delay remained without any plausible explanation—Prosecution did not adduce any evidence to prove that accused had any knowledge of the contraband ‘charas’ lying in the vehicle—Prosecution did not collect any evidence to show as to who had kept such huge quantity of charas in the Jeep—In absence of conscious possession of accused over the contraband of accused, it could not be the basis of conviction of accused—Trial Court in the impugned judgment had brushed aside the defence evidence—Such approach was not only erroneous, but was not warranted by law—Prosecution duty bound to prove the case against accused beyond the shadow of reasonable doubt and that burden could not be shifted, but the prosecution had failed to do so—Prosecution did not adduce evidence with regard to the circumstances as to where the bulk charas and samples were kept after recovery of the same from accused—Withholding evidence by the prosecution with regard to said infirmity, would raise presumption against truthfulness of prosecution case—Defence plea taken by accused, stated on oath and evidence of defence witnesses had neither been discussed nor considered by the Trial Court—Prosecution having failed to bring home the guilt against accused beyond the shadow of reasonable doubt, impugned judgment, was set aside, accused was acquitted from the charge, and was directed to be released, in circumstances.

2013  YLR  1502   KARACHI-HIGH-COURT-SINDH

ALI AHMED KHAKHRANI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic—Bail, refusal of—Recovery of large quantity of narcotic—Foisting of narcotic upon accused not probable—Effect—During patrolling duty, police conducted personal search of accused and allegedly recovered 3000 grams of charas from his possession—Apparently such huge quantity of charas could not be foisted upon the accused—Although private persons were not associated to act as mashirs, but such aspect of the case required deeper appreciation of evidence, which was not possible at bail stage—Report of Chemical Examiner was in positive—Offence alleged was punishable with death or life imprisonment—Bail application of accused was dismissed in circumstances.

2013  YLR  1241   KARACHI-HIGH-COURT-SINDH

ASIF ALI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b) & 9(c)—Possession of narcotic—Bail, grant of—Border line case—Probability of false implication—Delay in sending samples for examination—Effect—Police allegedly apprehended accused while on patrol duty and found him in possession of 1250 grams of charas—During investigation 1250 grams of charas was sent to chemical examiner for report but chemical examiner received only 1200 grams—Such discrepancy of 50 grams had not been explained by the prosecution—Prima facie, it was yet to be determined at trial, whether offence fell under S. 9(b) or 9(c) of Control of Narcotic Substances Act, 1997—Present case was a border-line case—All prosecution witnesses were police officials, thus there was no question of accused tampering with the evidence—Contraband material was sent to the office of chemical examiner six days after registration of the case—Constitutional petition had also been filed against police officials by a relative of the accused—False implication of accused could not be ruled out—Accused was admitted to bail, in circumstances.

2013  YLR  1147   KARACHI-HIGH-COURT-SINDH

BEHRAM KHAN VS State

S.9(c)—Recovery of narcotic (Charas)—Appreciation of evidence—Sentence, reduction in—Excise officials, evidence of—Quantum of sentence—During raid 18 kilogarm of Charas was recovered from accused and Trial Court convicted and sentenced him to imprisonment for life—Plea raised by accused was that he was father of four children and sole supporter of his family and had already served 15 years of sentence—Validity—Evidence of Excise officials was as good as that of any other person until and unless mala fide was brought on record against them—No specific mala fide was brought n record against Excise official and the evidence was corroborated by positive Chemical Report—Charas was recovered from the possession of accused on 20-7-2007 and samples were sent to Chemical Examiner for analysis on 21-7-2007—Positive report of samples was placed on record and mere production of attested copy of positive chemical report in evidence would not be fatal to prosecution case—Prosecution succeeded to prove its case against accused and Trial Court had rightly appreciated evidence brought on record—High Court maintained conviction of accused but reduced sentence of imprisonment for life to already undergone.

2013  YLR  1010   KARACHI-HIGH-COURT-SINDH

ALI MURAD VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Police appre-hended accused while on patrol duty and allegedly found 1200 grams of charas in his possession—Trial Court convicted and sentenced accused under S. 9(c) of Control of Narcotic Substances Act, 1997—Validity—Inconsistencies existed between depositions of both prosecution witnesses (police officials) with regard to number of pieces of charas as well in respect of scribe of F.I.R.—One of the prosecution witnesses stated that F.I.R. was written by Station House Officer (S.H.O.) in his own handwriting, whereas the other prosecution witness deposed that F.I.R. was written by Writer Head Constable (WHC) and statements under S. 161, Cr.P.C were also recorded by said Constable—During recording of evidence of one of the prosecution witnesses three pieces of charas were produced in court, while at the time of recording of evidence of other prosecution witness, two pieces of charas were produced—Investigation officer admitted that property sent back by Chemical Examiner was not produced in court—Sealed samples were sent for examination after a delay of 5 months and 10 days and it was not known as to how recovered property was treated during such period of delay—Conduct and manner in which sample of property was sent to Chemical Examiner and produced in court also created doubt about the prosecution version with regard to recovery of charas as well as number of its pieces—Prosecution could not prove its case against the accused beyond shadow of doubt—Appeal was allowed, impugned judgment of Trial  Court  was  set-aside  and accused was acquitted of the charge.

2013  YLR  878   KARACHI-HIGH-COURT-SINDH

ASHIQ ALI VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence— Sentence, reduction in—Excise officials arrested the accused from a vehicle on the basis of spy information and found three kilograms of charas in his possession—Trial Court convicted the accused under S. 9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to ten years imprisonment along with a fine of Rs. 50,000— Validity— Prosecution witnesses gave the same version during their examination—During cross-examination defence counsel failed to bring on record any defect regarding the recovery of charas; separation of samples for chemical examination, and any variation in weight of samples sent to Chemical Examiner—Samples were sent for examination within time and report received in such regard was positive—Nothing on record suggested enmity of prosecution witnesses with the accused—Police officials , who witnessed the arrest and recovery proceedings, were competent witnesses like any other independent witness and their testimony could not be discarded merely on the ground that they were police personnel—Prosecution had proved its case beyond shadow of reason-able doubt but the quantum of sentence imposed upon the accused was harsh—Sentence of accused was reduced from ten years to five years imprisonment and fine was reduced from Rs.50,000 to Rs.25,000 with the benefit of S. 382-B, Cr.P.C—Appeal was dismissed with the said modify-cations.

2013  YLR  786   KARACHI-HIGH-COURT-SINDH

SOHRAB VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic—Bail, grant of—Further inquiry—Mixing of samples—Non-association of private witnesses—Border line case between Ss. 9(b) and 9(c) of Control of Narcotic Substances Act, 1997—Effect—Accused was allegedly found in possession of three pouches which contained charas with a total weight of 1250 gms—Although report of chemical examiner was positive but samples taken from each of the three pouches were mixed together and sent for examination in a single pouch, therefore, it would be difficult to ascertain whether each pouch contained charas—Samples from each pouch should have been sent separately—Daylight occurrence but private mashirs were not engaged—Accused was neither a previous convict nor was he involved in cases similar to the present one—Case was one of further inquiry—Accused was granted bail accordingly.

2013  YLR  237   KARACHI-HIGH-COURT-SINDH

ASIF ALI VS State

1. 9(b)—Possession of narcotic—Appreciation of evidence—Benefit of doubt—Doubtful recovery—Delay in sending samples—Contradictions between evidence of prosecution witnesses and contents of F.I.R.—Accused was allegedly found in possession of 400 grams of charas and Trial Court convicted him under S. 9(b) of Control of Narcotic Substances Act, 1997—Validity—F.I.R. stated that charas was allegedly recovered from the fold of shalwar (trouser) of the accused, but complainant/police official deposed that charas was recovered from the right side fold of shalwar ( trouser) of the accused—Arrest and recovery mashir (police official) in his deposition had stated a story dissimilar to the recovery stated in the F.I.R.—Narcotic (charas) was sent to the Chemical Examiner after about 12 days of its alleged recovery, and case record provided no explanation as to who had the custody of the sample parcel in the said period—Prosecution had failed to prove its case beyond shadow of reasonable doubt—Appeal was accepted, accused was extended benefit of doubt and he was acquitted of the charge.

2013  YLR  187   KARACHI-HIGH-COURT-SINDH

MUDASIR SHAH VS State

Ss. 9(c) & 29—Possessing and trafficking of narcotic—Appreciation of evidence—Accused persons reportedly had brought a huge quantity of charas in a bus being smugglers of the same and they having knowledge of the availability of charas concealed in the bus, also resisted search—Such charas was recovered from the secret box/cavity of the bus and accused were arrested at the spot—Such evidence adduced by the prosecution before the Trial Court was found to have established the guilt of accused—No sort of alleged enmity or any reason of false implication was shown by accused anywhere in the proceedings of the case—Once the knowledge and possession of accused, corroborated by the recovery, was proved by the prosecution, the burden to disprove the charge then shifted upon accused, but accused failed to discharge the same as required in terms of S.29 of Control of Narcotic Substances Act, 1997–Appeal of co-accused had already been dismissed up to the Supreme Court and case of accused was identical to that of convicted co-accused—Trial Court, in circumstances, had rightly held the accused as guilty of the charge having been proved against them beyond any reasonable doubt.

2013  YLR  64   KARACHI-HIGH-COURT-SINDH

SAJJAD NAEEM VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Benefit of doubt—Doubts regarding time of recovery and sealing of samples—Date of receipt of samples by the Chemical Examiner doubtful—Accused persons (appellants) were found in possession of 53 kilograms of heroin—F.I.R. did not mention taking of any samples but only mentioned sealing of recovered narcotic—Mashirnama of recovery did mention the fact that samples were taken from the spot, but such fact was not written in the body of the Mashirnama but on the last line of a margin, admittedly in a different handwriting and at a different time—Complainant (police official) had stated in his evidence that heroin recovered was present in cloth bags, however, no cloth bags were stated either in the F.I.R. or in the mashirnama—-First investigation officer, who was allegedly given custody of the recovered heroin and samples did not appear as witness—Second investigation officer admitted  that  he  had  neither  seen the samples nor sent them to the Chemical Examiner—Record showed that samples were  sent  to  Chemical  Examiner on 13-2-1999, but report of Chemical  Examiner  showed  they  had  been received on 1-6-1999—Questions regarding  samples which had not been plausibly explained by the prosecution were as to who took them; when they were taken; when they were sealed; who sent them  to  the  laboratory  and  where  did  they remain between the day of the  alleged  recovery  and  their  receipt  by  the Chemical Examiner—Appeal was allowed and accused persons were acquitted by granting them benefit of doubt.

2013  PCrLJ  1837   KARACHI-HIGH-COURT-SINDH

MUHAMMAD SALEEM VS State

Ss. 9(c) & 29(d)—Smuggling of narcotics—Possession of illicit articles, presumption—Appreciation of evidence—Accused who were travelling in Bus, were arrested and in their presence and pointation, huge quantity of narcotics was recovered—Boxes containing narcotics were lying on the roof of the Bus and all accused had knowledge about the same—One of accused was owner, others were driver, second driver and conductor of the Bus, and one of them was sitting in the Bus on whose pointation the narcotics were recovered—Contentions were that a driver and conductor could not be held responsible for transporting contraband articles and that at best their responsibility would start only when the contraband items had been recovered from the designed cavities of the bus—Validity—Under provisions of S.29(d) of Control of Narcotic Substances Act, 1997, unless otherwise proved, presumption would be that accused had committed an offence under Control of Narcotic Substances Act, 1997 in respect of any material which had undergone any process towards the production or manufacture of narcotics—Presence of accused persons being owner, driver, second driver and conductor of the Bus was not denied; they were arrested from the spot in presence of Mashirs—Recovered articles were lying openly in boxes on the roof of the Bus, same would be in the knowledge  of accused persons—Accused, in circumstances were equally responsible for the transportation of said narcotic substance and  in  circumstances  could  not  be  absolved  from  the  responsibility.

2013  PCrLJ  1837   KARACHI-HIGH-COURT-SINDH

MUHAMMAD SALEEM VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S.103—Smuggling of narcotics—Non-association of private Mashir, effect—Appreciation of evidence—No infirmity was found in the evidence of the complainant—Prosecution witness had fully supported the prosecution case, and did not commit any error in connection with the arrest of accused persons—Recovery of narcotics was effected on the pointation of accused—Evidence of prosecution witnesses could not be shattered in lengthy cross-examination and they remained in line with each other—No infirmity or omission existed in the deposition of the witnesses  and  no  contradiction had been pin-pointed in their evidence—Though huge quantity of narcotic substance was involved in the case, but the complainant and prosecution witness did not differ or contradict each other in respect of the number of packets, weight of the narcotic, as well as the manner in which the same were recovered—Counsel for accused persons could not prove any enmity or ill-will against the prosecution witnesses to have deposed against accused persons falsely—Mashirnama was prepared at the time of recovery, which was verified by the prosecution witness to be true—Associating the private mashir was not necessary, as S.103, Cr.P.C. had been excluded under S.25 of Control of Narcotic Substances Act, 1997—Ocular testimony had duly been corroborated by the mashirnama of arrest and recovery prepared at the spot in presence of Mashirs—Huge quantity of narcotic substance was involved in the case, and in view of strong evidence available against accused persons, they were rightly convicted and sentenced; and question of reduction of sentence, did not arise.

2013  PCrLJ  1709   KARACHI-HIGH-COURT-SINDH

MUHAMMAD IQBAL VS State

Ss. 9(c) & 25—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5—Possession of narcotic—Appreciation of evidence—Police on basis of spy information, signalled accused to stop at a police picket but he tried to speed away and escape—Accused was ultimately arrested and 18 kilograms of heroin was recovered from the vehicle he was driving—No contradictions existed regarding receipt of spy information, laying of police picket (nakabandi) on the spot, arrival of vehicle of accused, recovery of heroin weighing 18 kilograms and taking out of samples from each and every packet for analysis—Report of Chemical analysis was in positive—Since there was no objection that recovered substance was unsealed or tampered with or manipulated, therefore, delay in sending samples would not affect the result of their analysis—Rules 4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 were advisory and not mandatory—Failure to follow said Rules did not render the search, seizure and arrest under Control of Narcotic Substances Act, 1997 an absolute nullity  and  non est—Regarding  contention  of  accused that samples had  not  been  taken  from  each  recovered  packet, it was not necessary to take samples from each packet as required evidence had been produced to connect the report with the case property—Association of private persons as witnesses was not necessary in the present case as S.103, Cr.P.C. had been excluded in narcotic cases by virtue of S.25 of Control of Narcotic Substances Act, 1997—Accused had failed to clarify as to what he was doing at the relevant time in the vehicle in question from which huge quantity of heroin was recovered and as to why he did not stop the vehicle at the picket when signalled by the police and tried to speed away—Prosecution had produced trustworthy  ocular  and  circumstantial evidence to connect accused with the commission of the offence—Appeal was dismissed accordingly.

2013  PCrLJ  1642   KARACHI-HIGH-COURT-SINDH

MUHAMMAD YOUSIF VS State

Ss. 6 & 9(c)—Possession of narcotic—Appreciation of evidence—Possession and control over narcotic—Scope—Vehicle being driven by accused  was stopped at a check-post and 40 bundles of charas weighing 40 kilograms were recovered from the secret cavities of the vehicle—Trial Court convicted and sentenced the accused under S.9(c) of Control of Narcotic Substances Act, 1997—Validity—When accused was driving the vehicle, he was incharge of the same, therefore narcotic would be under his control and possession, especially when he had started a long journey alone in the vehicle from which recovery was effected—Person in charge of a vehicle on a long journey, would draw the presumption against him that narcotic substance available in secret cavities of such a vehicle was in his knowledge—None of the prosecution witnesses had any enmity with the accused nor was it ever suggested that there was any reason to falsely implicate the accused by foisting a huge quantity of narcotic upon him—Evidence of prosecution witnesses remained consistent on all material particulars despite lengthy cross-examination—According to report of Chemical Examiner 40 packets, each containing 9 black rods wrapped in plastic pane were sent to the Laboratory for examination on the same day of the incident and also reached the Laboratory on the same day—Appeal was dismissed in circumstances.

2013  PCrLJ  1308   KARACHI-HIGH-COURT-SINDH

MUHAMMAD FARAZ VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Accused who was driving bus in question, would be held to be presumed to be in possession of narcotic substance hidden in secret cavities of the bus—No legal prohibition existed for Police Official to be a complainant, if he was a witness to the commission of offence and also to be an Investigating Officer as long as it would not in any way, prejudice the accused—No prejudice had been shown on record to have been caused to the accused—No question regarding driving licence was asked in the case; and it was not even suggested that there was no secret cavities in the bus, in question—Counsel for accused had not been able to point out any contradiction between evidence of Mashir and evidence of complainant—Accused had been proved guilty through evidence produced before the Trial Court—Counsel also had failed to point out any piece of evidence, which could create doubt in the story of prosecution, or any illegality in the impugned order passed by the Trial Court whereby accused was convicted and sentenced—Appeal was dismissed.

2013  PCrLJ  1237   KARACHI-HIGH-COURT-SINDH

FIDA HUSSAIN VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic—Appreciation of evidence—Benefit of doubt—Case of spy information—Non-association of private witnesses—Delay in sending samples for examination—Report of Chemical Examiner not produced in evidence—Effect—Police allegedly received spy information that accused, who was also wanted in connection with some other F.I.Rs., was selling charas at a certain location, whereafter police apprehended accused and found 1100 grams of charas in his possession—Trial Court convicted and sentenced accused under S.9(c) of Control of Narcotic Substances Act, 1997—Validity—Admittedly present case was one of spy information and police had advance information, but despite such fact persons from the locality were not associated to act as mashirs—Entry of spy information was not made in Roznamcha—Police allegedly left  police  station  to  arrest  accused  in  connection with  some  other  F.I.Rs.,  but  copies  of  such  F.I.Rs.  were  not brought  on  record  in  order  to  establish  that  police  actually  left the station to arrest the accused—Complainant and investigating officer did not mention in their evidence that they sent recovered charas for analysis—Perusal of chemical report revealed that charas had been sent to Chemical Examiner after 13 days of its alleged recovery, for which no plausible explanation was furnished—Record revealed contradictions with regard to mode of recovery—Appeal was allowed, benefit of doubt was extended to accused and he was acquitted of the charge.

2013  PCrLJ  1185   KARACHI-HIGH-COURT-SINDH

ABDUL GHAFOOR VS State

Ss. 9(b) & 21—Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)—Possession of narcotic, entry, search, seizure and arrest without warrants—Appreciation of evidence—Non-production of Roznamcha entries—Raid conducted without obtaining search warrants—Delay in sending samples for examination—Non-examination of material prosecution witnesses—Effect—Complainant (police official) allegedly conducted a raid at quarter of accused and recovered weapons and charas weighing 1000 grams—Two separate F.I.Rs. were registered against accused, one for recovery of weapons and the other for recovered charas—Both cases were tried by separate courts—Accused was acquitted from the case for recovery of weapons, however he was convicted and sentenced for the allegedly recovered charas under S.9(b) of Control of Narcotic Substances Act, 1997—Validity—Prosecution did not produce the copy of Roznamcha entry of leaving  the police station for conducting raid at the quarter of accused—Complainant/police official failed to obtain search warrants for conducting the raid—Police party had prior information before leaving for conducting the alleged raid, therefore, search warrants could have been obtained as required under S.21 of Control of Narcotic Substances Act, 1997—Samples were sent to Chemical Examiner with a delay of about 22 days, for which no plausible explanation was given by the prosecution—Prosecution also failed to examine the police official, who headed the raiding party and remained at the place of incident till recovery was effected—Recovery of weapons and charas was made under the same mashirnama, however accused was acquitted from the case for recovery of weapons but was convicted for the case of recovery of charas—Although where joint recovery under the same mashirnama was tried by two competent courts, the findings of one Trial Court were not binding on the other, however in view of the conflicting opinions of two competent courts in respect of the same document, a doubt had been created—Prosecution case was not free from  doubt—Appeal  was  allowed,  conviction  and  sentence  awarded to accused was set aside and he was acquitted from the charge.

2013  PCrLJ  860   KARACHI-HIGH-COURT-SINDH

GHULAM MUSTAFA alias MUSHTAQ ALI VS State

1. 9(b)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic—Appreciation of evidence—Benefit of doubt—Improbable occurrence—Roznamcha entries not produced—Non-association of private persons despite recovery being made from a populated place—Delay in sending samples for examination—Effect—While on patrol duty police allegedly apprehended accused near a shrine and recovered 600 grams of charas from his possession, which was packed in a plastic bag—Trial Court convicted and sentenced accused under S.9(b) of Control of Narcotic Substances Act, 1997—Accused contended that Station House Officer (SHO) demanded illegal gratification from him, and when he refused to pay, present case was registered against him; that plastic bag which contained the recovered charas was not shown as case property; that samples were sent for examination with a delay, and that no private witnesses were engaged during recovery proceedings despite the fact that large number of persons were present near the shrine—Validity—Prosecution story appeared to be unnatural and unbelievable and evidence of police officials did not inspire confidence—Original Roznamcha entries regarding departure of police for patrolling had not been produced in court—Private persons were always present at the shrine but police had made no efforts to engage private persons to act as mashirs—Police alleged that no private persons were available near the shrine, therefore, question arose that to whom the accused was selling charas, if there was no body present there—Delay of four days in sending samples for examination made the prosecution case doubtful—Prosecution’s case was that one piece of charas was sent for examination, however report of Chemical Examiner stated that he had received five pieces— Plastic bag which allegedly contained the recovered charas was not produced before the Trial Court—No reliance could be placed on evidence of police officials without independent corroboration since accused had raised a specific plea that Station House Officer (SHO) had registered present case against him because of non-payment of illegal gratification—During investigation no material was collected against accused regarding his involvement in narcotic cases—Prosecution case was doubtful—Benefit of doubt was extended to accused—Appeal was allowed and conviction of accused was set aside.

2013  PCrLJ  735   KARACHI-HIGH-COURT-SINDH

NABI GUL VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 8 & 9(c)—Juvenile Justice System Ordinance (XXII of 2000), S. 7—Possession and trafficking of narcotic—Bail, refusal of—Plea of juvenility, rejection of—Supervision and control over vehicle carrying narcotic—Scope—Heroin weighing 75 kilograms was allegedly found from the secret cavities of a truck in which the accused was present as a second driver—Contentions of accused were that alleged heroin was not recovered from his exclusive possession but same was recovered from the truck; that no driving licence had been secured from him by the police; that at the time of incident he was aged about 17 years and as such his case fell within the ambit of Juvenile Justice System Ordinance 2000; that although the Medical Board had opined that accused was 20 years of age but doctors of the Board had given contradictory versions in their cross-examination—Validity—Accused, who was apprehended at the spot, was one of the drivers of the truck in question and truck was under his supervision and control—No documentary proof existed regarding enmity of accused with the complainant party so as to involve him in the matter falsely—Offence alleged was punishable with death and fell within the ambit of prohibitory clause of S.497(1), Cr.P.C.—Medical Board had declared age of accused to be 20 years—Bail application of accused was dismissed, in circumstances.

2013  PCrLJ  635   KARACHI-HIGH-COURT-SINDH

PERVEZ alias GIDARI VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Delay in sending samples—Safe custody of samples doubtful—Police apprehended the accused on receipt of spy information and allegedly found 1200 grams of charas in his possession—Trial Court convicted and sentenced the accused under S.9(c) of Control of Narcotic Substances Act, 1997—Validity—Delay of six (6) days in dispatch of samples to Chemical Analyzer—Although R.4(2) of Control  of  Narcotic  Substances  (Government  Analysts) Rules, 2001, regarding dispatch of samples for analysis by not later than 72 hours of their seizure, was not mandatory but samples should be dispatched as early as possible unless for reasons to be recorded—Evidence of person (police official) who had the samples in his possession for six (6) days should have been recorded by the prosecution to show whether the samples were in safe custody or not—Sealed parcel containing sample was not de-sealed before any prosecution witness (police officials) and without seeing the actual condition of samples in the parcel, all the prosecution witnesses recognized the same as charas recovered from the possession of the accused—Property (narcotic) was produced in court after chemical examination by the Chemical Analyzer and presumption could be drawn that seals thereon belonged to Chemical Examiner’s office but prosecution witnesses (police officials) had deposed that it bore their seal and signatures—Investigation was conducted dishonestly which rendered the entire prosecution case doubtful—Accused was extended benefit of doubt and was acquitted—Appeal was allowed accordingly.

2013  MLD  1924   KARACHI-HIGH-COURT-SINDH

KHAN HAIDER VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Evidence of complainant, Sub-Inspector of Anti Narcotic Force, inspired confidence and was trustworthy, he had given minor details of recovery in evidence—No mala fide on the part of the complainant had been alleged, his evidence was corroborated by positive chemical report—Mashir of recovery had also fully supported the complainant on all material particulars—Not a single major contradiction in the evidence of the Police Officials had been brought on the record to discard their testimony—Departure entry had been produced in the Trial Court to show that Police party had actually left for the purpose of raid to the house of accused—Failure to obtain search warrant, could be a lapse on the part of the Investigating Officer, but same would not be fatal to the prosecution case; and whole prosecution evidence would not be discarded on that ground alone—No mala fide, or enmity having been suggested against the prosecution witnesses; there was no reason to disbelieve their version—Defence theory was improbable and an afterthought—Prosecution, in circumstances, had proved its case against accused beyond any shadow of doubt—No case for reduction of sentence was made out—Trial Court had already taken lenient view—Judgment of the Trial Court which was based upon sound reasons, was maintained and appeal being without merits, was dismissed.

2013  MLD  1876   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ALTAF VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c), 15 & 16—Possession of narcotics, operating premises or machinery for manufacture of narcotic drugs, etc., aiding, abetment or association in narcotic offences—Bail, refusal of—Recovery of contraband and chemicals used for making the same corroborated by people of the locality—Effect—Accused was arrested from a flat on basis of information of an informant and 1100 grams of heroin was recovered from his possession—Chemical drums and cans used in manufacturing heroin were also allegedly recovered from the flat—All the persons of the locality in their statements before the investigating officer supported the recovery of chemical and other articles—Person who had rented out the flat to the accused also corroborated version of the prosecution—Entire quantity of contraband recovered from the accused was sent to chemical examiner, who opined the same to be heroin powder—Recovery of heroin powder and chemicals used for manufacturing the same was supported by habitants of the building, which was sufficient evidence to connect the accused in the case—Bail application of accused dismissed in circumstances.

2013  MLD  1512   KARACHI-HIGH-COURT-SINDH

SHER KHAN VS State

S.9(c)—Possessing and trafficking narcotic—Appreciation of evidence—Both prosecution witnesses had supported the prosecution case—Contradiction pointed out by the counsel for accused, which were regarding number of seal, number of patties of charas, date and outward number of the letter under which the samples were sent to Chemical Examiner, were not so material to vitiate the prosecution case, and were not fatal to make any dent in the prosecution case, which  otherwise  had  been  supported  by  the  complainant,  Mashir  of  arrest  and  recovery  as  well  as  the Investigating Officer—Report  of the Chemical Examiner was also positive—Conviction of accused, was  maintained,  but  sentence  was  modified  from  10  years  and  fine of Rs.50,000 to 4 years and six months and fine of Rs.20,000.

2013  MLD  1431   KARACHI-HIGH-COURT-SINDH

SAIFUL HUSSAIN alias FAISAL HUSSAIN VS State

Ss.9(c) & 26—Criminal Procedure Code (V of 1898), S.561-A—Vexatious entry, search, seizure or arrest—Proof—Notice to officials—Benefit of doubt—Trial Court issued notices to officials for lodging vexatious F.I.R. alleging recovery of 16 kilograms of Charas, cellular phones and motorcycle—Validity—In every case, prosecution was duty bound to prove its case beyond any shadow of reasonable doubt and if single circumstance could create doubt in prudent mind, its benefit was to be extended to accused persons and they would be acquitted on the basis of principle of benefit of doubt—For invoking provision of S.26 of Control of Narcotic Substances Act, 1997, it was to be seen whether arrest and seizure were vexatious or necessary or not, which aspect was not proved with cogent material—Accused persons were apprehended along with huge quantity of Charas viz. 16 kilograms besides motorcycle, mobile phones etc. which could not be arranged and foisted upon them—Provision of S.26 of Control of Narcotic Substances Act, 1997, could not be invoked as there was no material to substantiate arrest and seizure from accused persons by officials and it was not vexatious or unnecessary—High Court directed to vacate notices issued to officials under S.26 of Control of Narcotic Substances Act, 1997—Application was allowed in circumstances.

2013  MLD  1299   KARACHI-HIGH-COURT-SINDH

MUHAMMAD TAHIR NAWAZ VS State

Ss. 9(b) & 9(c)—Possession of narcotic—Appreciation of evidence—Conversion of sentence from Ss.9(c) to 9(b) of Control of Narcotic Substances Act, 1997—Separate sample from each recovered packet not sent—Effect—Only that quantity of recovered narcotic to be considered against the accused from which sample taken and tested—Twenty packets of heroin, weighing 3.9 kilograms were recovered from the accused—Trial Court convicted the accused under S. 9(c) of Control of Narcotic Substances Act, 1997—Contention of accused was that only three samples of 10 grams each, from three packets were sent for Chemical Examination; that if the total weight of 20 packets (3.9 kilograms) recovered from him was divided into equal weights of 20 packets, the weight of each packet was about 200 grams, and since samples were sent from only three packets, therefore, total weight of recovered heroin should be considered as 600 grams; that in such circumstances offence fell under S. 9(b) of Control of Narcotic Substances Act, 1997 and not under S. 9(c) of the Act—Validity—Admittedly only three samples (10 grams each) from three packets, each packet weighing 200 grams, were taken and sent for chemical examination—Such fact was also verified from the Chemical Examination report—Contention of accused regarding conversion of his sentence from Ss.9(c) to 9(b) of Control of Narcotic Substances Act, 1997 , in circumstances of the case, appeared to be correct—Accused had already undergone a substantial sentence of imprisonment of about four years and he had shown repentance and promised not to repeat similar offence in future—Accused was also willing to pay the fine of Rs.100,000 imposed upon him by the Trial Court—Conviction recorded by Trial Court under S.9(c) of Control of Narcotic Substances Act, 1997 was converted into S.9(b) of the Act—Accused was sentenced for a period already undergone by him with a fine of Rs.100,000—Appeal was disposed of accordingly.

2013  MLD  176   KARACHI-HIGH-COURT-SINDH

KHALIDA AKRAM VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Sentence, reduction in—Female accused of old age—First time offender—Continuous custody since day of arrest (17-4-2002)—Whether such mitigating circumstances deserved leniency—Scope—Allegation against the accused (appellant) was that she was apprehended while sitting in a vehicle, from which charas weighing about 85 kilograms was recovered—On the alleged pointation of the accused, further narcotic weighing about 5735 kilograms was recovered from the house of her husband—Trial Court convicted the accused under S. 9(c) of the Control of Narcotic Substances Act, 1997, and sentenced her to life imprisonment and a fine of Rs.300,000 and in default of payment of such fine to suffer further imprisonment of three years—Contentions of the accused were that she had no incriminating role in the commission of the crime and she was a victim of circumstances; that she was a first time offender; that she was 59 years of age and was a cardiac patient suffering from high blood pressure; that alleged recovery of narcotic was made from the house of her husband and no recovery was effected from her exclusive possession, and that it was her bad luck that she married her present husband (co-accused), only 10 months before the crime in question—Validity—Accused was an old lady who had remained in continuous custody since the day of her arrest (17-4-2002) and was also a first time offender—Accused deserved leniency—Conviction of the accused was maintained, her sentence was reduced from life imprisonment to 10 years imprisonment; her fine was reduced from Rs.300,000 to Rs.100,000 and in default  of payment of such fine, further imprisonment was reduced from three years to one year -Appeal was dismissed, with said modifications.

2013  PLD  203   KARACHI-HIGH-COURT-SINDH

Mrs. FOZIA SULTANA VS PROVINCE OF SINDH through Secretary, Home Department

Ss. 9(4) & 6—Control of Narcotic Substances Act (XXV of 1997), S.9—Criminal  Procedure  Code  (V  of  1898), S.382-B—Constitution of Pakistan, Art.199—Constitutional petition—Pakistani nationals/ convicts found in possession of heroin in a foreign country—Sentences imposed by foreign court on convicts not compatible with the relevant law of Pakistan—Transfer of said convicts to Pakistan to serve out their sentences—Convicts having already undergone maximum sentence of imprisonment had they been convicted under the relevant law of Pakistan—Effect—Convicts (petitioners) were arrested in a foreign country on charges of possessing heroin and were subsequently sentenced to life imprisonment by the competent court of said foreign country—Convicts fulfilled conditions of S.6 of Transfer of Offenders Ordinance, 2002 and were deported and jailed in Pakistan in terms of S.9 of the said Act—Contentions of convicts were that on calculation of their detention period, remissions under the law of Pakistan and the benefit of S.382-B, Cr.P.C, they had already served out a sentence which was more than the maximum period of imprisonment that could be imposed on them had they been convicted under Pakistani law i.e. S.9 of Control of Narcotic Substances Act, 1997; that according to the law of the foreign country in question sentences awarded to all convicts was life imprisonment, irrespective of the quantity of heroin recovered, which was incompatible with the sentences that could be awarded under S.9 of Control of Narcotic Substances Act, 1997, and that they were also entitled to remissions under the Pakistan Prisons Code (Jail Manual) including benefit of S.382-B, Cr.P.C, which benefit was not provided in the law of the foreign country in question—Anti Narcotics Force had no objection to the contention of the convicts but contended that under provisions of Control of Narcotic Substances Act, 1997, offenders, besides sentence of imprisonment were also liable to fine, therefore, provisions of Transfer of Offenders Ordinance, 2002 should be applied in toto and not in piece-meals—Validity—Section 9(4) of Transfer of Offenders Ordinance, 2002 provided that sentence awarded to a citizen of Pakistan in a foreign country should be compatible to the law of Pakistan and consequently a court of competent jurisdiction in Pakistan could adopt the sentence, however, the same should correspond as far as practicable to the sentence imposed by the foreign court—All the present convicts were sentenced to imprisonment for life, without considering the quantity/weight of heroin allegedly recovered from each of them, therefore, such sentences were not compatible to the sentences which could have been awarded under the law of Pakistan i.e. S.9 of Control of Narcotic Substances Act, 1997—All convicts had already undergone the maximum sentence of imprisonment including imprisonment in lieu of any unpaid fine—Giving benefit of remissions to the convicts that they could have earned in both the countries including benefit under S.382-B, Cr.P.C, their sentences were reduced to one already undergone by them—Constitutional petitions were allowed and all convicts were  directed to be released.

2013  PLD  42   ISLAMABAD

ASAD ALI VS State

1. 9(c)—Possession and transportation of narcotic—Appreciation of evidence—Sentence, reduction in—Sample of recovered narcotic sent for chemical analysis—“Representative sample”—Scope—“Sufficient quantity” of narcotic sent for analysis—Definition—Narcotic weighing 200 kilograms was recovered from the vehicle which was being driven by the accused— Six samples of 5 grams each were separated from the recovered charas and sent for chemical analysis—Accused was sentenced to death at conclusion of trial—Validity—Separate samples from each packet/piece were not collected for purposes of chemical analysis, therefore sample sent could not be said to be a “representative sample” and it also did not come within definition of “sufficient quantity”—Only that quantity of charas regarding which conclusive evidence by way of chemical report was available had to be presumed as recovered from the accused—Statement of one of the prosecution witnesses (customs official) was also not clear with regard to quantity of charas recovered—Vehicle was also not owned by the accused—Death sentence imposed by Trial Court being too harsh, in circumstances was converted into imprisonment already undergone by accused—Appeal was dismissed accordingly.

2013  PCrLJ  1254   ISLAMABAD

MUHAMMAD ZAHID KHAN VS State

1. 9(b)(c)—Criminal Procedure Code (V of 1898), S.367(3)—Possessing, trafficking narcotics—Appreciation of evidence—Sentence, reduction in—Charas wrapped in 152 packets weighing four mounds and 10 kgs., was allegedly recovered from vehicle—Out of each packet small quantity for chemical analysis was separated and by mixing same, sample of 500 grams was prepared and sealed in a separate parcel—Trial Court found accused guilty of offence punishable under S.9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to suffer rigorous life imprisonment and to pay fine of Rs.300,000—Accused had restricted  his  prayer  to  reduction  of  quantum  of sentence—Out of 152 packets of charas, small quantity separated from each packet was mixed and sample of 500 grams was prepared for chemical examination, whereas requirement of segregating a mandatory small portion from each packet for independent analysis was done away with by mixing the samples with each other—By process of such merger, procedure adopted by the investigators was short of prescribed standard under which stuff segregated from each packet was to be examined and analyzed independently—Recovery of charas from the vehicle, though was established, but quantity of the same exceeding 10 kgs. was not established—Due to unestablished quantity the case of prosecution would not fall within the ambit of proviso added to S.9(c) of Control of Narcotic Substances Act, 1997, under which an accused having narcotics exceeding 10 kgs. was to face punishment not lesser than life imprisonment—Court was not obliged to punish accused to undergo sentence not lesser than life imprisonment—Narcotics recovered from vehicle though was more than one hundred gram, but not more than 10 kgs. in circumstances—Quantum of sentence, was reduced  to  six  years  rigorous  imprisonment  and  fine  of Rs.100,000.

2013  PCrLJ  822   ISLAMABAD

QADEER alias TEERAN VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Apprehension of accused—Procedure—Sentence, reduction in—Natural Justice, principles of—Applicability—Accused was held guilty for possessing 15 Kgs. of contraband “crushed poppy heads”—Trial Court convicted the accused and sentenced him for life imprisonment with fine—Validity—Discrepancies existed in evidence of prosecution witnesses—Proceedings conducted by the investigating agency were to be transparent—Special attention should be paid at the time of apprehension of the accused, his search, recovery proceedings and each and every detail should be brought on record so that it could be ascertained that entire proceedings conducted by the investigating agency were transparent and smacked truth—Awarding sentence of life imprisonment to accused on basis of evidence containing discrepancies would be violation of principles of natural justice—Accused deserved remission in sentence—Sentence of accused was reduced to one already undergone by him—Appeal was dismissed accordingly.

2013  PCrLJ  822   ISLAMABAD

QADEER alias TEERAN VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Sentence, reduction in—“Representative sample”—Scope—Accused was held guilty for possessing 15 Kgs. of contraband “crushed poppy heads”—Trial Court convicted the accused and sentenced him for life imprisonment with fine—Validity—Representative sample of 10 grams was in fact taken out of 15 Kgs. of narcotics—Sample of only ten grams from huge quantity of 15 Kgs. of crushed poppy heads could not be termed as “representative sample”—Control of Narcotic Substances Act, 1997 had to be construed strictly and relevant provision of law dealing with the procedure as well as furnishing proof like report of expert etc. were to be followed strictly in the interest of justice, otherwise it would be impossible to hold that the total commodity recovered from the possession of the accused was narcotic—Accused deserved remission in sentence—Sentence was reduced to one already undergone by the accused—Appeal was dismissed.

2012  SCMR  1276   SUPREME-COURT

SHAH MUHAMMAD VS State

Ss. 9(c) & 35—Possession of narcotic—Reappraisal of evidence—Allegation against the  accused (appellant) was that he was apprehended after a pursuit and 340 kilograms of charas was recovered from the trunk of his car, which was present in seventeen (17) bags, each containing twenty (20) packets weighing 1 kilogram each—Trial Court convicted the accused under S.9(c) of the Control of Narcotic Substances Act, 1997—Contentions of the accused were that there was a delay in sending the samples because of which possibility could not be ruled out that the samples were tampered with; that under S.35 of the Control of Narcotic Substances Act, 1997, the Chemical Examiner was not a notified analyst, therefore, his report had to be excluded from consideration; that there was contradiction in the evidence of persecution  witnesses  as  one  of  them  stated  that  from  each ‘packet’ 10 grams of charas had been separated for dispatch, while the other witness stated that 10 grams of charas sample had been taken out from each ‘bag’ and not packet; that accused had produced in his defence a police official, according to whom the accused was arrested on the day of the incident for some other offence and was released on the same day at 7-30 p.m., while the case of the prosecution was that the accused was arrested for the present case at 6-30 p.m., and that the samples were not taken from all the recovered packets but from only seventeen (17) packets, weighing 170 grams, therefore, case of the accused fell within the scope of S.9(b) of Control of Narcotic Substances Act, 1997—Validity—Provincial Government had notified the Chemical Examiner in question through a notification—Since the proceedings before the Trial Court (Special Judge Narcotics) were conducted under the Criminal Procedure Code, 1898, therefore notification in favour of the Chemical Examiner in question would make him competent to prepare the report—With regard to contention of accused concerning delay in sending of samples, ground realities had to be realized that the police had less means of communication and manpower and in the absence of any evidence to presume that samples were tampered with, such an argument would not be available to the accused—Two official documents, i.e., F.I.R. and recovery memo, both stated the same fact that from each bag 10 grams of charas was separated for samples, and in such circumstances if the police official deviated from the facts by making an oral contrary statement, possibility could not be overruled that he was either mistaken or had forgotten the fact recorded by him in the documents or was making concessional statement—Regarding contention of accused that he was arrested for some other offence at the time of the alleged incident, the Trial Court had observed that the page containing the arrest and release was somewhat differently inserted with the rest of the pages of the police record, which would create doubt in the said contention—Sufficient ocular account of two witnesses was available to establish that huge quantity of charas was recovered from the possession of the accused—Said two witnesses had categorically stated that samples were taken out from each bundle, weighing 170 grams in total, and were sent for analysis to the Chemical Laboratory—Report of the Chemical Laboratory was positive—Both prosecution witnesses were at least consistent about the fact that seventeen (17) samples were taken from seventeen (17) bags/packets, and if each bag/packet was taken to be of one (1) kilogram, then the minimum quantity of charas from which samples were taken was proved to be seventeen (17) kilograms—Case of the accused, in such circumstances, would remain within the scope of S.9(c) of Control of Narcotic Substances Act, 1997—Appeal was dismissed, in circumstances.

2012  SCMR  870   SUPREME-COURT

REGIONAL DIRECTOR, ANTI-NARCOTICS FORCE VS RIZWAN AHMED KHAN

Ss. 6, 9(c), 14 & 15—Constitution of Pakistan, Art. 185(3)—Possession of narcotic, aiding, abetment or association in narcotic offences—Allegations were that Ministry of Health had favoured two companies by extending/granting to them quotas of Ephedrine against the Rules and inquiry into such allegation was being obstructed and hampered—Supreme Court observed that commission of the crime, as disclosed in the F.I.R., was of a serious nature, notwithstanding whosoever was involved and what was his status, and concerned authorities should have allowed a transparent inquiry and investigation instead of causing obstructions and hampering the same for one reason or the other—Supreme Court directed that transfer/posting of Director-General, Regional Director and Deputy Director of Anti-Narcotics Force, in colourable exercise of powers, was not free from extraneous consideration, therefore, Regional Director and Deputy Director of Anti-Narcotics Force were not to relinquish the charge and they should continue with the investigation of the case without being influenced in any manner from any one—Order accordingly.

2012  SCMR  577   SUPREME-COURT

AMJAD ALI VS State

S.9(c)—Recovery of narcotics—Re-appraisal of evidence—Benefit of doubt—Recovery—Proof—Case property, failure to produce—Charas weighing 20 kilograms was recovered from secret cavities of door and spare wheel of car—Accused was convicted and sentenced to imprisonment for life by Trial Court which was maintained by High Court—Validity—Although prosecution sought to corroborate testimony of recovery witnesses with report of Forensic Science Laboratory to the effect that contraband item recovered from secret cavities was Charas, yet sanctity of report of Laboratory was eroded by evidence of official who could not correctly reply as to where samples remained between the dates when those were allegedly taken into possession from car and the date those were received by Forensic Science Laboratory—Official witness even could not tell the date as to when samples were sent for examination and which official had taken samples to the Laboratory—Case property, the spare wheel of car, was never produced during trial to verify as to whether it could contain such a huge quantity of narcotics in question—Element of doubt surrounding prosecution case led court to hold that prosecution had failed to prove its case beyond reasonable doubt to sustain conviction—Supreme Court set aside the conviction and sentence awarded to accused by the courts below and he was acquitted of the charge—Appeal was allowed.

2012  SCMR  573   SUPREME-COURT

JAMAL-UD-DIN alias ZUBAIR KHAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Constitution of Pakistan, Art. 185(3)—Recovery of narcotics—Bail, grant of—Maximum punishment, possibility of—Involving in other similar cases—Accused contended that Chars weighing 4 kilograms was recovered from path and not from his personal possession, therefore, there  was  no  possibility  of  maximum  sentence  provided  for  the offence—Validity—Court while hearing petition for bail was not to keep in view the maximum sentence provided by statute but the one which was likely to be entailed in the facts and circumstances of the case—Accused had been in jail for three months, yet commencement of his trial let alone its conclusion was not in sight, had also tilted scales of justice in favour of bail rather than jail—Involvement of accused in two other cases of similar nature would not come in the way of petitioner, so long as there was nothing on the record to show that accused  had  been  convicted  in  any  one  of those—Petition for leave  to  appeal  was  converted  into  appeal  and  accused  was released on bail.

2012  SCMR  567   SUPREME-COURT

GUL BADSHAH VS State

1. 9(c)—Constitution of Pakistan, Art. 185(3)—Narcotics, recovery of— Quantum of sentence— Leave  to  appeal  was  granted  by Supreme Court to consider; whether quantum of sentence was appropriate punishment awarded to accused or he could have been punished  to  imprisonment  for  life  having  the  effect  of  deterrence as well.

2012  SCMR  41   SUPREME-COURT

NIAZ AHMED VS State

1. 9(c)—Constitution of Pakistan, Art. 185(3)—Recovery of narcotics— Reappraisal of evidence— Quantum of sentence—Reduction—Accused was convicted under S. 9(c) of Control of Narcotic Substances Act, 1997, and was sentenced to seven years—High Court in exercise of appellate jurisdiction reduced the sentence to five years—Accused did not  assail  the  conviction  but  sought  reduction  in sentence—Validity—Request of accused was acceded to by High Court and his sentence was reduced from seven years to five years—On one hand accused wanted to retain the benefit of the order passed by High Court and on the other hand he had assailed the same—Petition for leave to appeal was barred by eleven days for which no sufficient cause had been propounded by accused in his application for condonation of delay—Leave to appeal was declined.

2012  PLD  380   SUPREME-COURT

AMEER ZEB VS State

1. 9—Criminal Procedure Code (V of 1898), Ss. 221 & 342—Narcotic substance, recovery of—Proof—Sample, not taken —Failure to object—Effect—If at the time of framing of charge against accused, he denied the allegation levelled against him by prosecution, he suggested to prosecution witnesses that nothing had been recovered from his possession or custody and in his statement recorded under S.342 Cr.P.C. he had controverted allegations regarding recovery of narcotic substance from his possession or custody, then mere failure to challenged during the trial that remaining untested recovered substance was not narcotic substance should nether weaken the case of defence nor strengthen the case of prosecution.

2012  PLD  380   SUPREME-COURT

AMEER ZEB VS State

1. 9—Recovery of narcotics—Representative samples—Principle—Sample taken of a recovered substance must be a representative sample of the entire substance recovered—If no sample is taken from any particular packet/cake/slab or if different samples taken from different packets/cake/slab are not  kept  separately  for  their separate analysis by Chemical Examiner, then the sample would not be a representative sample and it would be unsafe to rely on mere word of mouth of the prosecution witnesses regarding the substance of which no sample has been taken or tested being narcotic substance—At least in some situations Control of Narcotic Substances Act, 1997, stipulates disproportionately long and harsh sentences and, therefore, for the purposes of safe administration of criminal justice, some minimum standards of safety are to be laid down so as to strike a balance between prosecution and defence and to obviate chances of miscarriage of justice on account of exaggeration by investigating agency— Such minimum standards of safety are even otherwise necessary for safeguarding Fundamental Rights of citizens regarding life and liberty which could not be left at the mercy of verbal assertions of police officers which assertions are not supported by independent evidence provided by Chemical Examiner—Where any narcotics substance is allegedly recovered while contained in different packets, wrappers or container of any kind or in the shape of separate cakes, slabs or any other individual and separate physical form it is necessary that a separate sample is to be taken from every separate packet, wrapper or container and from every separate cake, slab or other form for chemical   analysis   and   if   that   is   not   done   then   only   that  quantity of narcotic substance is to be considered against accused person from which a sample was taken and tested with positive results.

2012  PLD  380   SUPREME-COURT

AMEER ZEB VS State

1. 9(c)—Recovery of narcotic substance—Reappraisal of evidence—Narcotic in different packs—Chemical examination—Procedure—Charas in 80 cakes/slabs contained in 20 packets kept in 22 baskets was allegedly recovered from possession of accused but only a “small” and unspecific quantity was taken from every packet as a sample and then those samples were mixed up and made into one sample of 10 grams which was thereafter sent to Chemical Examiner for analysis—Trial Court convicted the accused under S.9(c) of Control of Narcotic Substances Act, 1997, and sentenced him to imprisonment for life which was maintained by High Court—Validity—If 80 cakes/slabs had statedly been recovered from possession of accused and total weight of entire quantity was 20 kilograms then, each cake/slab weighed about 250 grams—As only one sample of 10 grams had been sent to Chemical Examiner for analysis and report in that regard had been received in positive, therefore, for safe administration of justice, it could be concluded that accused was liable to be held responsible for having only one cake/slab of Charas weighing 250 grams in his possession which offence attracted provisions of S.9(b) of Control of Narcotic Substances Act, 1997—Supreme Court converted conviction of accused under S.9(b) of Control of Narcotic Substances Act, 1997, and sentenced him to imprisonment for one year and three months with a fine of Rs.9000—Appeal was allowed accordingly.

2012  PLD  380   SUPREME-COURT

AMEER ZEB VS State

1. 9—Recovery of narcotics—Sentence, quantum of—Principle—Sentences specified in Control of Narcotic Substances Act, 1997, depend upon quantity of recovered narcotic substance and not upon narcotic content of recovered substance—Quantity in such cases is determinative factor as far as the sentences are concerned—In all such cases, there should be no room for doubt as to the exact quantity of the substance recovered and also as to the entire recovered substances being narcotic substance—Accused person is at receiving end of long and stringent punishments and thus safeguards from his point of view should not to be allowed to be sacrificed at the altar of mere comfort or convenience of the prosecution.

2012  PLD  369   SUPREME-COURT

Mst. JAMEELA  VS State

1. 9(c)–Pakistan Arms Ordinance (XX of 1965), S.13—Possession and trafficking of narcotics, possession of illegal weapons—Reappraisal of evidence—Benefit of doubt—Failure to establish conscious possession of narcotic—Trial court had convicted the accused under S.9(c) of the Control of Narcotic Substances Act, 1997 and S.13 of Pakistan Arms Ordinance, 1965, and accused’s appeal was dismissed by the High Court with some modifications in the sentence—Validity—Accused was not driving the vehicle in question at the relevant time and was sitting along with another lady on the rear seat of the vehicle at the time of its interception—No recovery had been made from the accused’s physical possession and narcotic substance and weapons had been recovered from secret cavities and boot of the vehicle—Prosecution had not established conscious possession on the part of the  accused—Accused’s  appeal  was  allowed  and convictions and sentences recorded by courts below were set aside and accused was acquitted of the charge by extending her benefit of doubt.

2012  PLD  369   SUPREME-COURT

Mst. JAMEELA  VS State

1. 9—Possession of narcotics, proof of—Conscious possession, requirement of—Mere presence of a passenger in a vehicle cannot be treated as sufficient to saddle with him the responsibility of possession of narcotic substance recovered from the vehicle unless the prosecution establishes through independent evidence that such passenger was conscious and aware of availability of narcotic substance in the vehicle.

2012  YLR  2686   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD AKBAR VS State

1. 9—Possession of narcotic—Appreciation of evidence—Samples sent to Chemical Expert—Quantity—Scope—Sending whole of the recovered narcotic substance to Chemical Examiner was not the requirement of law, and only a small quantity was sufficient to prove that entire recovered material was contraband substance.

2012  YLR  2686   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD AKBAR VS State

1. 9—Possession of narcotic—Appreciation of evidence—Delay in sending samples to Chemical Expert—Scope—Delay in sending incriminating articles to Chemical Expert for analysis could not be treated fatal in the absence of objections regarding the same having been tampered with or manipulated.

2012  YLR  2686   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD AKBAR VS State

1. 9—Possession of narcotic—Appreciation of evidence—Evidence—Police officials as witnesses—Scope—Police officials were as good witnesses as public witnesses until and unless the defence established specific enmity or malice against them.

2012  YLR  2686   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD AKBAR VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Minor dis-crepancies/contradictions in evidence—Prosecution witnesses (police officials) remaining consistent with each other with regard to material details—Tampering of samples not alleged—Effect—Accused, who was a passenger in a bus was found in possession of 6 kilograms of charas—Trial Court convicted and sentenced accused under S. 9(c) of Control of Narcotic Substances Act, 1997—Contentions of accused were that prosecution evidence was full of contradictions and discrepancies; that samples were sent to Chemical Expert after a delay of five days, and that only 30 grams of recovered substance was sent for chemical analysis, therefore, at the most sentence against him could be recorded with regard to 30 grams of charas—Validity—Discrepancies and contradictions in statements of prosecution witnesses (police officials) were minor and could be ignored since all witnesses remained consistent with each other on the point of date, time, place of arrest , recovery of charas from accused and its dispatch to Chemical Examiner—Credibility of prosecution witnesses (police officials) could not be questioned without any serious allegation of their malice against the accused—Accused was arrested on the spot along with charas and Chemical Examiner’s report found the recovered substance to be charas—Delay in sending incriminating articles to Chemical Expert for analysis could not be treated fatal in the absence of objections regarding the same having been tampered with or manipulated—Accused in the present case never contended during or before trial that samples had either been replaced or were tampered with—Sending whole of the recovered narcotic substance to Chemical Examiner was not the requirement of law, and only a small quantity was sufficient to prove that entire recovered material was contraband substance—Appeal was dismissed, in circumstances.

2012  YLR  2288   QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL MALIK VS THE STATE

1. 9—Possession of narcotics—Appreciation of evidence—Mere delay in sending samples for analysis—Effect—Simply sending of samples for analysis with a delay was no basis to let the culprit go scot-free.

2012  YLR  2288   QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL MALIK VS THE STATE

1. 9(c)—Possession of narcotics—Appreciation of evidence—Allegation against the accused (appellant) was that he was searched at a Levies check post and 13 packets of charas (narcotic), weighing 13 kilograms, were found hidden in the secret cavities of his vehicle—Trial Court convicted the accused under section 9(c) of the Control of Narcotic Substances Act, 1997—Contentions of the accused were that it could not safely be said that 100 grams sent for analysis were secured from each slab of narcotic; that samples were sent for analysis after a delay of two and a half months; that the allegedly recovered narcotic was not weighed on the spot; that the recovery memos were not prepared on the site, and that the accused had purchased a ticket to travel in the apprehended vehicle, which belonged to a company-Validity-Accused had failed to produce any ticket or person of the alleged company which owned the vehicle—Prosecution had established the fact. that the accused was driving the vehicle alone, which fact was corroborated by the statement of the prosecution witnesses–Accused had failed to point out any ill-will or animosity towards him—All prosecution witnesses consistently stated that 13 packets, consisting of rods and slabs, were recovered from the possession of the accused and from each packet a total of 100 grams was collected for analysis—Samples were separated through memo in the presence of Levies officials, who handed it over to the Chemical Expert—Mere sending of samples for analysis with a delay was no basis to let the culprit go scot-free-Although preparation of recovery memos and other proceedings on the site excluded the possibility of false implication, but, in the present case, the incident took place at a far-flung check-post, in such circumstances, shifting of the vehicle along with the narcotic to a Levies station for preparation of memo did not five the impression that the accused had been implicated in a false, frivolous case, particularly when the possession of narcotic and seizure of the vehicle had been established by the prosecution—Appeal was dismissed and judgment of the Trial Court was maintained.

2012  YLR  794   QUETTA-HIGH-COURT-BALOCHISTAN

ATTA ULLAH VS State

Ss. 9(c), 20 & 21—Appreciation of evidence—Provisions of S.103, Cr.P.C. had categorically been excluded by S.25 of the Control of Narcotic Substances Act, 1997—Police Officials having no ill-will or personal grudge against the accused were competent witnesses—Police witnesses had furnished straightforward and confidence inspiring evidence—Huge quantity of “charas” could not be planted on accused by Police Officials from their own resources—Non-compliance of Ss.20 and 21 of the Control of Narcotic Substances Act, 1997, in the peculiar circumstances of the case would not make the conviction of accused illegal—Narcotic was recovered not from a residential house but from a narcotic den—Spy information having been received after office hours, search warrants could not be obtained—Investigation of the case by CIA being an irregularity could not vitiate the whole trial entitling the accused to acquittal—Reader of Investigating Officer had recorded the statements of witnesses under his directions and not independently—Tampering of the parcels of recovered narcotic having not been agitated, mere delay in sending the same for chemical analysis was not favourable to accused—Samples were drawn from 264 rods of “charas”, each rod weighing ten grams, as such accused was found in possession of 2640 grams of “charas” and he had been rightly convicted and sentenced—Appeal was dismissed, in circumstances.

2012  YLR  490   QUETTA-HIGH-COURT-BALOCHISTAN

NASIR-UL-DIN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(a)(b) & 51(1)(2)—Possessing and trafficking of narcotics—Bail, grant of—No doubt S.51(1) of Control of Narcotic Substances Act, 1997 laid embargo on the court not to grant bail in offence, which was punishable with death, but clause (2) of said section, had provided that a court would not normally grant bail, unless the court was of the opinion that it was a fit case for grant of bail—Cases to be called fit for the purpose of S.51 of the Control of Narcotic Substances Act, 1997, were those which required further enquiry or probe or the case in which meagre quantity of ‘charas’ was recovered—In the present case charas upto 200 grams was recovered and out of the same only 5 grams had been sent for analysis—Offence did not fall within the prohibitory clause of S.497, Cr.P.C. and case was fit for grant of bail within the meaning and scope of clause (2) of S.51 of Control of Narcotic Substances Act, 1997—Accused was released on bail, in circumstances.

2012  PCrLJ  1729   QUETTA-HIGH-COURT-BALOCHISTAN

NAIMATULLAH VS State

Preamble & S. 9—Cases concerning possession and transportation of narcotics—Minor procedural discrepancies—Effect—In narcotic cases approach of the court should be dynamic and minor irregularity or discrepancies must be overlooked.

2012  PCrLJ  1729   QUETTA-HIGH-COURT-BALOCHISTAN

NAIMATULLAH VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Accused was driver of the vehicle in question and was intercepted at a check; post and after search 150 kilograms of charas was alleged to have been recovered from secret cavities of the vehicle—Trial Court convicted the accused under S.9(c) of the Control of Narcotic Substances Act, 1997, but acquitted the co-accused, who was a passenger in the vehicle—Contentions of the accused were that on the same set of evidence the co-accused had been acquitted of the charge; that according to the F.I.R. 150 kilograms of charas was recovered whereas according to one of the prosecution witnesses after separating of samples for chemical analysis, the quantity of charas was still 150 kilograms, and that samples were sent for analysis after a delay of five days—Validity—Co-accused, who took the plea of taking a lift on the vehicle of the accused, had been acquitted by the Trial Court on the grounds that his case was on a different footing to that of the accused, as there was no direct or indirect evidence to connect him with the commission of the crime; as his knowledge about concealment of narcotic could not be brought on record; as he was a person of more than 65 years of age and had no relationship or tribal connection with the accused, and as there was a letter on record which revealed that relative of the co-accused had complained of his disappearance when he was supposed to be travelling back home—Said findings of the Trial Court in relation to the acquittal of the co-accused were plausible and justifiable—All the prosecution witnesses were cross-examined at length but the defence failed to create any dent or doubt in the prosecution case qua the accused—Report of Chemical Analyst proved that recovered narcotic was charas—Defence failed to point out that the samples were tampered with and did not dispute their safe custody, therefore, contention of accused regarding delay in sending samples was not helpful to him—Accused was intercepted at a blockade, therefore, there was hardly any occasion for availability of private witnesses and it was a recognized fact that general public remained reluctant to become a witness in cases similar to the present one—Accused being the driver of the vehicle was in conscious possession of the recovered narcotic—Appeal was dismissed and conviction and sentence awarded by the Trial Court was maintained.

2012  PCrLJ  1717   QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL KHALIQ VS THE STATE

1. 9(c)—Possession and smuggling of narcotics—Appreciation of evidence—Knowledge and conscious possession of narcotic—Scope—Huge quantity of narcotic lying on the rear seat of vehicle—Whether passenger of said vehicle would have knowledge and conscious possession of the narcotic—Scope—Failure to show any ill-will or motive for false implication—Effect—Accused was allegedly part of a caravan which was trying to smuggle narcotics across the border via Pakistan—Accused was apprehended from a vehicle, which was part of the caravan and after search of said vehicle 1280 kilograms of opium was found lying in the rear seat of the vehicle—Trial Court convicted the accused under S.9(c) of the Control of Narcotic Substances Act, 1997—Contentions of the accused were that he got a lift on the vehicle in question and subsequently was not allowed to get off the vehicle, and that the co-accused who was the driver of the vehicle, had control over the same, and the accused did not have knowledge or conscious possession of the narcotic—Validity—Accused was travelling in a vehicle, in which huge quantity of narcotic was lying on the rear seat, which gave the impression that he was involved along with the co-accused driver and had knowledge and conscious possession of the narcotic—Accused had failed to show that he had no conscious possession over the narcotic—Prosecution had successfully established the recovery of narcotic from the vehicle—Evidence further showed that accused was member of a gang, involved in smuggling narcotics across the border via Pakistan—Evidence of prosecution witnesses qua recovery of narcotic was corroborative and convincing and there was no contradiction in their statements—Accused had not shown that Anti-Narcotics Force officials had any enmity or ill will towards him to falsely involve him in the case—Appeal was dismissed, in circumstances.

2012  PCrLJ  1477   QUETTA-HIGH-COURT-BALOCHISTAN

SAMIULLAH VS State

1. 9(c)—Trafficking of narcotics—Appreciation of evidence—Accused was found  in  possession  of  narcotics  while  travelling in truck—Prosecution had substantiated accusation by producing cogent and concrete evidence—No glaring contradiction could be pointed out in the statements of witnesses—Minor contradictions which crept in with the passage of time, could easily be ignored—Despite exhaustive and searching cross-examination, nothing advantageous could be elicited rendering any help to the case of accused—All the prosecution witnesses were natural and impartial, having no enmity or rancour against accused; and their evidence could not be discarded only for the reason that they were official witnesses—Question of substitution or false implication of the accused would not arise, who was found in possession of the narcotics—Trial Court had discussed the evidence and had given valid reasons for its conclusion—Impugned Judgment did not suffer from any illegality or material irregularity—No delay took place in lodging the F.I.R.—Provisions of S.103, Cr.P.C. had no application to the narcotics cases as per provisions contained under S.25 of Control of Narcotic Substances Act, 1997—Immediately after the apprehension, the charas in question was recovered from the secret cavities of the truck, being driven by accused—Certain quantity of charas from each packet was separated, sealed into a separate parcel and dispatched to the Federal Government Analyst for opinion—Opinion of the Analyst was in positive—Occurrence had partly been admitted by accused and he raised the plea of substitution and false implication—Said plea, in the peculiar facts and circumstances of the case, was nothing, but merely an attempt to hide his own guilt—Defence version being false, fabricated and an afterthought, had rightly been rejected by the Trial Court—Evidence on record had rightly been appreciated by the Trial Court; and the impugned judgment  being  well-reasoned  and  unexceptionable,  did  not  call for any interference— Appeal of accused was dismissed, in circumstances.

2012  PCrLJ  1477   QUETTA-HIGH-COURT-BALOCHISTAN

SAMIULLAH VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S.417(2-A)—Trafficking of narcotics—Appeal against acquittal—Appreciation of evidence—Accused was found sitting along with main accused on front seat at the time when the truck in question was intercepted—Prosecution did not produce any concrete evidence, except the alleged joint disclosure to show that he was in joint possession or control of the truck in question or he had any concern or deal with the contraband material in any manner—Charas was found concealed in the secret cavities of the truck in question, meaning thereby that narcotics were hidden from all persons—No evidence was available to indicate that accused knew that charas was concealed in the secret cavities, or he had exclusive knowledge of the said cavities—Prosecution had simply proved presence of accused in the truck at the time, when the same was intercepted—Mere presence of accused in the truck would not be sufficient to involve him in the case, unless conspiracy or abetment of the offence was shown and proved—Case of accused, in circumstances, was quite distinguishable from the case of main accused—Accused was father of main accused, but each and every individual was responsible for his own act—To err in acquittal was better to err in conviction—Mistake of Qazi (Judge) in releasing a criminal was better than his mistake in punishing an innocent—Appeal against acquittal, being meritless, was dismissed.

2012  PCrLJ  606   QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL LATEEF VS STATE

Ss. 9(c) & 36—Criminal Procedure Code (V of 1898), S.156(1)—Possessing narcotics—Appreciation of ‘ evidence—Personnel of Criminal Investigation Agency (CIA), no doubt, under S.156(1), Cr. P. C., had no power to iii vestigate a cognizable offence, but in the present case F.I.R. had been lodged at concerned police station and challan had also been submitted before the court by the S.H.O. of the said police station—Even if it was presumed that Sub-Inspector C.I.A. was not competent to investigate the matter, it would amount only to an irregularity which would not affect the trial, particularly when neither any prejudice or injustice had been caused to the accused, nor he had raised such objection during the trial—Trial Court had discussed the evidence in its true perspective and based its decision on valid reasons—Section 103, Cr. P. C. was not applicable to narcotic cases by virtue of S.25 of Control of . Narcotic Substances Act, 1997—Prosecution witnesses had given straightforward and confidence-inspiring evidence, who had no malice or animus against the accused—Planting of forty Kilograms heroin on the accused by the police was not believable—Section 36 of the Control of Narcotic Substances Act, 1997, did not require dispatch of the whole recovered lot to Chemical Examiner for analysis, as a sample thereof was always treated as a part of the total—Sending of 40 grams out of 40 Kilograms of heroin as sample to Chemical Examiner, therefore, was not questionable—Defence plea was absurd, improbable and unreasonable—House of recovery was owned by the wife of accused—Impugned judgment did not suffer from any illegality or material irregularity—Appeal was dismissed accordingly.

2012  PCrLJ  512   QUETTA-HIGH-COURT-BALOCHISTAN

SAMIULLAH VS State

1. 9(c)—Possession and trafficking the narcotics—Appreciation of evidence—Accused had been arrested from the spot while sitting on the driving seat of car, from the rear seat of which 40 Kilograms of “Hashish” was recovered—Section 103, Cr.P.C. being not applicable to narcotic cases, non-association of private witnesses in recovery proceedings did not vitiate the trial—Police witnesses were as good witnesses as any other citizen unless any mala fide was established against them—Police Officials had furnished a straightforward and confidence-inspiring account, which did not suffer from any contradiction, discrepancy or inherent infirmity—Record did not show that prosecution witnesses had deposed against the accused out of malice—Accused had admitted his presence in the car—Samples of narcotic recovered from the car were found to be “Hashish” on chemical analysis— Car being  in  possession  and  control  of  the  accused,  he  would  be  deemed  to  be  in  actual  and  conscious possession of the narcotic recovered therefrom—Defence plea was nothing but a cock and bull story—Prosecution version was more plausible and nearer to truth than defence version—Impugned judgment was based on valid reasons and was neither perverse nor arbitrary—Conviction and sentence of accused were upheld in circumstances.

2012  PCrLJ  512   QUETTA-HIGH-COURT-BALOCHISTAN

SAMIULLAH VS State

1. 9(c)—Possession and trafficking narcotics—Appreciation of evidence—Police witnesses, credibility  of— Police  witnesses  are  as  good  witnesses  as  other  citizens,  unless  any  mala  fide  is  established against them—Deposition of a Police Official cannot be brushed aside simply on the bald allegation that he belongs to Police department.

2012  PCrLJ  303   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD ILYAS VS State

Ss. 9(c) & 29—Possessing and trafficking narcotics—Appreciation of evidence—Narcotics substance was recovered from the vehicle which was  in  control  of  accused  being  its  driver  and  owner—Accused had  not  denied  the  recovery  from  the  vehicle  while  he  was driving  the  same; in view of such admitted position, contradictions and  improvements  in  the  statements  of  the  prosecution  witnesses, were  of  less  consideration—Legal  presumption  of  the offence, would be against the accused as provided under S.29 of Control of Narcotic Substances Act, 1997—Accused claimed his innocence on the basis of the admission made by co-accused, while replying to the charge—Such fact was less beneficial to  accused  as  co-accused  only  admitted  his  guilt  to  the  extent  of four Kgs of  Hashish, while he showed  his  no  concern  with  the  remaining  narcotic—Recovery of 25 Kgs Charas was an established fact, but accused had no explanation about the remaining 21 Kgs, of the  contraband—Accused  had  to  be  accounted  for  the  remaining 21  Kgs. narcotics substance, recovery of which from the vehicle was an established fact—Accused, in circumstances, had completely failed to make out any case in his favour—Sentence awarded to accused by the Trial Court, was upheld, in circumstances.

2012  PCrLJ  109   QUETTA-HIGH-COURT-BALOCHISTAN

JANGI KHAN VS State

Art. 40—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Recovery of narcotic on information of accused—Such disclosure of information followed by recovery could be used against accused persons within the meaning of Art. 40, Qanun-e-Shahadat 1984.

2012  PCrLJ  109   QUETTA-HIGH-COURT-BALOCHISTAN

JANGI KHAN VS State

Ss. 6 & 9(c)—Qanun-e-Shahadat (10 of 1984), Art. 40—Possessing and smuggling of narcotics—Appreciation of evidence—Both accused persons, who respectively were driver and conductor of the bus wherefrom narcotic was recovered, disclosed information regarding secret cavities of the bus where the same was concealed—Such disclosure followed by the recovery, could be used against accused persons within the meaning of Art. 40, Qanun-e-Shahadat, 1984—Prosecution had successfully proved the recovery of contraband items from the bus in question—Accused had not entered into witness box to record their statements under S. 340(2), Cr.P.C. nor they had produced any defence witness—Accused in statements under S. 342, Cr.P.C. did not dispute said recovery, except lack of knowledge on their part—Since accused were driver and conductor of the bus, they were under legal obligation to have satisfied the conscious of the court by creating reasonable circumstances justifying that both of them were in fact not aware of concealment of contraband items as they figured only when the bus was ready for departure—Accused had failed to attract any circumstances to create a doubt in the case of the prosecution qua their involvement—If the conscious of the court was satisfied regarding involvement of accused, then the technicalities were to be avoided—Accused were not the owners of the bus in question, but the liability within the ambit of S.6 of Control of Narcotic Substances Act, 1997, would extend to a person who was in possession of contraband items—Case of accused persons fell within the four corners of S.6 of Control of Narcotic Substances Act, 1997—Recovery from the secret cavities of the bus was effected at the pointation of both accused persons—No evidence was offered on the part of accused persons to indicate that they had no nexus with the bus—Accused did not even bother to enter in the witness box to confirm or substantiate their version that they had no nexus and concern with the bus—In view of overwhelming evidence of prosecution, it was not only difficult, but impossible to believe that accused had no knowledge of contraband items—Non-production of bus before the court was not fatal to the prosecution case as accused had admitted their presence in the bus as well as recovery of contraband from the bus—Case against accused persons, in circumstances, had fully proved and they were rightly convicted and sentenced, in circumstances.

2012  MLD  285   QUETTA-HIGH-COURT-BALOCHISTAN

Mir HAZAR KHAN VS State

1. 9(c)—Possessing narcotics, arms and ammunition—Appreciation of evidence—Prosecution had proved its case beyond reasonable doubt that the narcotics along with arms and ammunitions were recovered from the house in possession of accused—Disclosure, followed by the statement recorded under S.161, Cr.P.C. coupled with the recovery of contraband items and the arms and ammunitions from the conscious possession of accused, had proved the case against accused to the  hilt—Despite lengthy cross-examination, the defence had failed to create any dent or doubt in the prosecution case—Witnesses remained firm and the evidence so recorded inspired confidence—Prosecution evidence was straight, consistent, believable and there seemed no reason to disbelieve the same—Statements of prosecution witnesses had clearly established the guilt of accused—Prosecution had succeeded to produce sufficient material against accused and had successfully established the case against accused beyond any shadow of reasonable doubt—Accused was rightly convicted and sentenced, in circumstances.

2012  YLR  2730   PESHAWAR-HIGH-COURT

GULZALA VS State

1. 9—Possession and trafficking of narcotics—Appreciation of evidence—Trial Court had rightly held that the prosecution had undoubtedly established the recovery of contraband in the shape of charas garda weighing 36 kilograms from the secret cavities of vehicle driven by accused, regarding which he had full knowledge—Witnesses appeared in the Trial Court against accused had no enmity or malice against him—Said witnesses though were official witnesses of Anti-Narcotic Force, but in the absence of enmity or grudge, they were as good witnesses as other public witnesses; and their testimony could not be discarded or brushed aside on the sole ground that they were members of Anti-Narcotic Force—All the witnesses had witnessed the recovery of the contraband from the car in question, which was being driven by accused; and they had remained consistent, so far as the time, place and mode of recovery was concerned, despite lengthy cross-examination of the defence—No reason existed to discard testimony of the witnesses—Trial Court had rightly rejected defence version of accused after considering each and every piece of evidence on record before recording conviction against accused—Prosecution had successfully established its case through confidence-inspiring evidence of eye-witnesses, which was not at all shattered by the defence during cross-examination—Report of Forensic Science Laboratory in respect of the samples separated from the lot of contraband was in positive—Accused had not discharged his burden within the meaning of S.29 of Control of Narcotic Substances Act, 1997—Well founded judgment and order of the Trial Court, needed no interference—Conviction and sentence of accused was maintained in circumstances.

2012  YLR  2617   PESHAWAR-HIGH-COURT

BILAL VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 20—West Pakistan Arms Ordinance (XX of 1965), S. 13—Possession of narcotic, power to issue warrants for search, possession of illegal weapons—Bail, grant of—Further inquiry—Police on basis of spy information raided accused’s shop and allegedly recovered illegal weapons and ammunition and 5500 grams of charas—Police did not obtain search warrant within the meaning of S. 20 of Control of Narcotic Substances Act, 1997, despite having prior information—Forensic report in respect of the recovered charas was not available and similarly record did not contain any Forensic report for the recovered arms to show that same were in workable condition or not—Case required further inquiry and accused was released on bail, accordingly.

2012  YLR  2476   PESHAWAR-HIGH-COURT

ILYAS GEORGE VS THE STATE

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Benefit of doubt—Presence of accused person in the vehicle carrying narcotics had been established by the prosecution by producing convincing evidence—Police official who intercepted vehicle, was subjected to lengthy cross-examination, but nothing was squeezed from his mouth to shatter . the prosecution case—Contradictions in the statements of the prosecution witnesses qua the weight of the contraband, were insignificant and were not fatal in nature to the prosecution case—Recovery witness, supported and corroborated the recovery from the secret cavities of the vehicle; he also affirmed the arrest of accused person on the spot—Said witness was subjected to lengthy cross-examination, but nothing was extracted from him in the benefit of accused—Huge quantity of 22 kilograms charas had been recovered from the secret cavities of the vehicle, which was directly under the control of accused—Plea and reasons for false implication as advanced by accused person during the trial, ‘was not appealing to a prudent mind—Investigating Officer, had fully supported and corroborated the murasila and recovery memo—Positive report of Forensic Science Laboratory had left , no doubt in proving the, guilt of accused persons—No material discrepancies or contradictions were found in the testimony of prosecution witnesses regarding recovery of 22 kilograms charas from the vehicle which was being driven by the accused—Delay in sending of samples to Forensic Science Laboratory for chemical examination, could not be treated fatal in absence of objection regarding same having been tampered with or manipulated—No link could be found between accused and co-accused—Co­accused had been shown sitting on the front seat of the vehicle—Neither any driving licence had been recovered from the possession of co-accused nor the prosecution had brought any evidence on record to the effect that co-accused, either facilitated or helped in any manner or was instrumental in’ commission of offence—Mere presence of a person in a vehicle, could not be treated as sufficient to saddle him with the responsibility of possession of narcotic substance recovered from the vehicle, unless prosecution establish through independent evidence that such a person was aware of availability of the narcotic substance in the secret cavities of the vehicle—No evidence was on record to show knowledge of co-accused regarding existence of narcotic in the secret cavities of vehicle—Benefit of doubt was extended to co-accused and conviction and sentence awarded to him by the Trial Court was set aside; he was acquitted and set free, whereas conviction and sentence of accused was maintained being based on proper appraisal of evidence.

2012  YLR  2011   PESHAWAR-HIGH-COURT

NADIR KHAN VS THE STATE

5. 516-A—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Trafficking of narcotics—Superdari of vehicle allegedly used in offence—Vehicle in question, was taken by DSP Headquarters for his personal use which was kept by him in his custody—Nothing had been brought on record that the petitioner was having knowledge or any link with the accused—Right from the registration of the case, no one else had claimed ownership of vehicle in question; in such a situation decline of Superdari of vehicle in question to the petitioner would serve no useful purpose—Vehicle in question was exposed to open sky and its condition was likely to be deteriorated daring peadency of the trial—Petitioner hating made out a case for Superdari of vehicle, he was granted superdari of vehicle in question on furnishing hail bond.

2012  YLR  2001   PESHAWAR-HIGH-COURT

HASSAN JAN VS THE STATE

1. 497(2)-Penal Code (XLV of 1860), Ss. 324/353/34—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—West Pakistan Arms Ordinance (XX of 1965), S. 13—Possession of narcotic, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possession of illegal weapons—Bail, grant of—Further inquiry—Contentions of the accused were that neither the narcotic was recovered from his personal possession nor the same . belonged to him; that the narcotic was recovered from the trunk (diggy) of the vehicle and accused had no conscious knowledge of the same; that the accused had not attempted to take the lives of the police party rather it was the police that fired at the accused to involve him in the case, and that the accused was not likely to be awarded the maximum sentence provided for the offences alleged–Validity–Accused had denied the ownership of the vehicle from which allegedly narcotic was recovered—Question as to whether the accused. could be held responsible for possession of the narcotic which was recovered from the trunk of the vehicle, which accused was driving, and when the accused and co-accused had allegedly escaped and assaulted the police with fire arms , were questions requiring further probe—Magnitude of sentence always invariably followed the magnitude of the crime, and in view of the same, accused was not likely to be awarded the maximum sentence provided by the statutes, which was another factor favouring award of bail to the accused—Bail petition of accused was allowed and he was released on bail.

2012  YLR  1673   PESHAWAR-HIGH-COURT

SHARIFA BIBI VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic—Bail, grant of—Further inquiry—Accused, a lady, was found as an inmate of the vehicle but there was no other evidence of any nature to reasonably connect her as an associate of the co-accused, who was driver of vehicle having active control and domain of it and could be tagged with the requisite knowledge regarding presence of narcotic—Accused was neither owner of the vehicle nor recovery had been effected from her personal search, rather same were allegedly concealed in the secret cavities of the vehicle—During personal search of accused, no amount of money was recovered from her to suggest that she was paid for giving company to the co-accused(driver), thus, in circumstances her case was distinguishable from the co-accused—Reasonable grounds existed to believe that case of accused required further probe—Bail petition of accused was allowed and she was admitted to bail.

2012  YLR  1264   PESHAWAR-HIGH-COURT

JAVED VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 29—Trafficking of narcotics—Bail, refusal of—Huge quantity of contraband charas weighing 120 kilograms had been recovered from the truck which was driven by accused—Prosecution was required to prove that accused was in the knowledge of narcotic under S.29 of Control of Narcotic Substances Act, 1997, then the burden would shift to accused to disprove his possession—Accused being the driver of the truck in question, was supposed to be in possession of narcotic kept in secret cavities of the truck because he was incharge of the same—Accused who was in exclusive possession of the truck, was reasonably connected with the presence of 120 kilogram contraband charas kept in the secret cavities of the truck—Keeping in view the quantity of charas, the offence fell under the prohibitory limit of S.497, Cr.P.C.—Role of co-accused who had been released, was quite different to the accused as co-accused was not driving the truck at the relevant time—Role of both accused persons being not equal, the rule of consistency was not applicable to case of accused—Challan had been submitted to the Trial Court and the trial was likely to commence—Bail petition was dismissed, in circumstances.

2012  YLR  1124   PESHAWAR-HIGH-COURT

ISMAIL KHAN VS State

1. 9—Possessing and trafficking of narcotics—Appreciation of evidence—All prosecution witnesses remained consistent with regard to the recovery of the contrabands from the truck in question and the manner in which the recovery was effected—Said witnesses though were subjected to a lengthy cross-examination, but the defence failed to damage or destroy their testimony—Plea of accused persons that they had no conscious knowledge of the presence of the contrabands in the vehicle as same were recovered from the secret cavities of the truck, could not be accepted as accused had failed to justify their presence in the vehicle; and the driver of the vehicle was normally aware of the goods available or loaded in the truck, unless, otherwise was established—One of the accused who was driving the truck in question at the relevant time, attempted to make good his escape by accelerating the vehicle—Nothing was available to hold that driver or the other two accused persons sitting along side the driver, were unaware of the contrabands in the vehicle—All accused being cousins inter se, plea that accused had just asked for a lift and boarded the truck would also not be appealing—Both accused persons had failed to justify their presence in the vehicle, which alone would be sufficient to believe that they had a conscious knowledge of presence of narcotics in the secret cavities of the truck—Nothing was on record to show that prosecution witnesses deposing against accused had any ill-will or ulterior motive to falsely implicate them—Report of Chemical Examiner supporting the version of prosecution witnesses also left no doubt as to the guilt of accused persons—Trial Court, in circumstances, had rightly convicted and sentenced accused persons.

2012  YLR  1115   PESHAWAR-HIGH-COURT

SANA ULLAH VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997) S.9—Possessing and trafficking narcotics—Bail, grant of—Knowledge of presence of contraband in vehicle—Accused along with his co-accused was present in the vehicle from which huge quantity of contraband had been recovered—Case record did not prove that accused had any knowledge of the presence of the contraband in the vehicle nor was there anything on record to establish that he was either owner, conductor or driver of vehicle in question—Record was also silent about recovery of contraband from the personal possession of the accused as contraband were in fact concealed in the secret cavities of the vehicle—Investigation in the case was complete and accused was not required for further investigation—Accused was admitted to bail, in circumstances.

2012  YLR  1064   PESHAWAR-HIGH-COURT

FAROOQ VS State

7. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Sentence, reduction in—Accused were found in possession of charas weighing 7.70 kgs and cocaine weighing 4.05 kgs and samples sent to the laboratory confirmed the same—Accused contended that he was taxi driver and the two co-accused had hired his car, thus, he did not have conscious knowledge that co-accused were smuggling narcotics—Co-accused argued that the charge and allegations against them were exaggerated—Despite cross-examination and searching of the two star prosecution witnesses, their testimonies could not be shaken in any manner, thus the evidence adduced at the trial by the prosecution was of a first degree, fair and beyond any reasonable doubt, connecting the accused with the crime—Attempt on part of the accused to escape, when he was signalled to stop, was a clear indication that he had conscious knowledge about the presence of narcotics in the car, otherwise there was no other reason for him to act in the way he did—No document had been brought on record to establish that accused was a taxi driver and the car was registered with the local authorities as a taxi car—One of the co-accused had cladded himself in veil, concealing his identity and personified himself as a lady to deceive the law enforcing agencies, therefore, such an act clearly told about his guilt, moreover, he was also found in direct possession of narcotics—Other co-accused also could not be cleared because once narcotics were recovered from one of his co-accused then the burden under the law shifted to him to have explained as to how and under what circumstances he boarded the car and became companion of the co-accused—Legitimate inference could be drawn from the evidence on record that accused and his two co-accused were actively involved in the smuggling of narcotics and all three were jointly acting with common intention–Plea of accused at trial that narcotics  were found to be of lesser weight and because of reduced weight , if those were divided amongst all the three accused, they would not be liable for the extent of punishment awarded to them by Trial Court,  had some force—Prosecution had not brought on record anything to show that any of the accused was a previous convict or had a criminal history of same nature—Conviction of all three accused were maintained, however, their sentences of seven years’ imprisonment with fine of Rs. 100,000 (one lac) were reduced to two years’ imprisonment and the amount of fine was reduced to Rs. 50,000 (fifty thousand) each, with the benefit of S.382-B, Cr.P.C.

2012  YLR  1051   PESHAWAR-HIGH-COURT

WAJID ALI VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking of narcotics—Bail, grant of—Further inquiry—Accused was driver of the vehicle carrying narcotics and had picked up co-accused as a passenger who was in possession of a plastic bag, wherein the contraband was concealed—Said bag was lying on the foot pad of the vehicle and near his feet—Nothing was on the file to show that either co-accused was previously known to accused or he was his relative or co-villager—Recovery was neither effected from the immediate possession of accused, nor from any other secret cavity of the vehicle driven by accused—Accused while recording his confessional statement had shown his ignorance about any connection with the recovered stuff; and had deposed that the recovery was effected from co-accused, who was picked up by him as a passenger—Such statement found corroboration from the confessional statement of co-accused who in his confessional statement had claimed the ownership of recovered stuff stating that same was purchased by him and that accused did not know that inside the bag there was charas—Accused was in the lock-up since his arrest on 30-10-2010 and as investigation against accused was complete, his further detention would serve no useful purpose to the prosecution—In view of non-existence of reasonable grounds to connect accused with the commission of offence; and his case being that of further inquiry accused was directed to be released on bail, in circumstances.

2012  YLR  1015   PESHAWAR-HIGH-COURT

AYUB KHAN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, grant of—Further inquiry—Accused was arrested at the spot while seated in the vehicle and from the secret cavities of the said vehicle contraband weighing 9 kgs was recovered–Co-accused who was driving the vehicle parked the same on the side of the road and fled away but accused remained seated in the vehicle—Was yet to be proved that accused was in any way linked with the absconding co-accused and that he was in fact the owner of the vehicle—Accused was merely travelling in the vehicle without having the conscious knowledge or physical possession of the narcotics—Accused’s case calling for further inquiry into the matter, he was admitted to bail.

2012  YLR  1015   PESHAWAR-HIGH-COURT

AYUB KHAN VS State

S.9(c)—Possession of narcotics, proof of—Direct conscious possession had to be shown by the prosecution at the time of the trial—Person seated in vehicle could not be blindly held responsible for anything kept in the secret cavity of the vehicle unless it was established that he was in knowledge or conscious possession of the narcotics recovered from the vehicle.

2012  YLR  981   PESHAWAR-HIGH-COURT

PIR KALAM VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Sentence, reduction in—Two Kgs of charas was recovered from the personal possession of accused—No enmity or ill-will was suggested by the defence to the prosecution witnesses for false implication of accused in a fabricated case—Police Officials were as good witnesses as any other, until and unless some enmity or ill-will with accused was brought on the record—Recovery of contraband by the witnesses and positive report of the chemical examiner, were sufficient to sustain conviction—In view of young age of accused and his previous non-involvement in any such like case, conviction and sentence awarded to accused by the Trial Court was altered from four years’ R.I. to two years’ R.I., while the sentence of fine and imprisonment for non-payment of the same was maintained.

2012  YLR  877   PESHAWAR-HIGH-COURT

IQRAR VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking of narcotics—Bail, grant of—Further inquiry—Murasila, had not clarified as in what shape the charas was recovered; whether it was in the shape of slabs; and if so what was the weight of each slab and their number—From the collective recovered contraband, five grams was separated and sent to Forensic Science Laboratory for analysis—Prosecution had to establish at the trial that the samples sent to the Laboratory were in fact samples of the whole contraband lot recovered from accused, making his case one of further inquiry—Case of the accused was that of border line between sub-clauses (b) and (c) of S.9 of Control of Narcotic Substances Act, 1997—Accused had never been apprehended in narcotics or any criminal case; he was no more required for investigation and keeping him behind the bars would serve no purpose to the prosecution—Maximum punishment provided under sub-clause (c) of the Control of Narcotic Substances Act, 1997, could not be awarded to accused in view of the quantity allegedly recovered from him—Accused was admitted to bail, in circumstances.

2012  YLR  860   PESHAWAR-HIGH-COURT

MUHAMMAD SHAHAB VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Benefit of doubt—Glaring contradictions existed in the prosecution case—Prosecution evidence was silent about the exact quantum of contraband recovered from each seats of vehicle—Such contradiction was fatal to the case of the prosecution—Murasila and the F.I.R., showed that the recovered contraband was kept in the secret cavities prepared for the purpose, but during court inspection, no such cavities were found in the vehicle in question, thus negating the prosecution version—Muharrir whose name had been introduced in the court statements of the prosecution witnesses, had neither been shown in the Murasila, nor in the F.I.R. to be a member of Police party, nor was shown as a witness to the recovery memo–Said overt act on the part of prosecution had negated the prosecution version regarding presence of said Muharrir at the relevant time—One prosecution witness in his cross-examination had stated that the case property and accused were brought to the Police Station along with Murasila, but that version was controverted by another prosecution witness and from such conflicting stances, it could not be inferred as to which one was correct—Non-recovery of driving licence and registration book of the vehicle had also caused dent to the prosecution case—One of accused persons was a juvenile at the time of alleged occurrence—Nothing was on record to show that accused person, ever remained involved in such like crimes—Vehicle in question was on rent; which was neither owned by either of accused persons, nor any one of them was a driver—Conscious knowledge of the contraband had also become doubtful—Conviction and sentence recorded by the Trial Court, could not be maintained on basis of scanty and deficient evidence produced by the prosecution—Single doubt was sufficient for extending benefit of doubt to accused, whereas in the present case there were sufficient contradictions, which led to the conclusion that not only the investigation, but the evidence of the prosecution was fraught with numerous doubts—Conviction and sentences recorded by the Trial Court, were set aside and accused were acquitted of the charge and were set at liberty.

2012  YLR  494   PESHAWAR-HIGH-COURT

AZMAT KHAN VS State

1. 9(c)—Appreciation of evidence—Benefit of doubt—Despite having received prior information S.H.O. had not asked any private person to join raid proceedings—Search warrant had been obtained by police against two persons, but name of one person had been concealed in the F.I.R.—No evidence was brought on record by prosecution to prove that the house against which the search warrant was obtained was owned by the accused—Recovered “charas” was not sealed at the time of its recovery, but had been sealed after handing over the same to Investigating Officer—Delay in sending the sample of the recovered material to the Forensic Science Laboratory was not explained—Raid appeared to be a concocted one and the prosecution story had been cooked up only to enrope the accused—Holding of “charas” by the accused in a polythene bag in his hand and standing in the courtyard did not appeal to a prudent mind, as if he was waiting for the raid and producing the same before the police—Prosecution case was full of doubts, benefit of which had to be given to accused—Accused was acquitted in circumstances.

2012  YLR  485   PESHAWAR-HIGH-COURT

SAJAD-UR-REHMAN VS State

1. 517—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Disposal of property—Accused in the case had already been convicted and sentenced by Trial Court—Appellant was not an accused in the case and he happened to be a registered owner of the vehicle in question—No other person had so far come forward to claim ownership or possession of the said vehicle—Appellant had undertaken to produce the vehicle before any court of law if and when required to do so—Said vehicle was given to the appellant (applicant) on his furnishing surety bond in the sum of Rs.200,000 with two sureties in the like amount to the satisfaction of the Trial Court.

2012  YLR  463   PESHAWAR-HIGH-COURT

MUDASSIR VS State

1. 9(c)—Possession and trafficking of narcotics—Appreciation of evidence—Sentence, reduction in—Accused was apprehended while driving a motor car at the relevant time and from the computer monitor, which was lying on the rear seat, nineteen packets (weighing 19kgs) containing charas Pukhta was recovered—Testimony of witnesses was fully supported by incriminating material available on record—Prosecution witnesses could neither be shattered in respect of time, place and manner of the occurrence, nor any contradictions were brought in their statements—Sample taken from recovered stuff was sent to Forensic Science Laboratory and report was received in positive—No ill-will or mala fide had been attributed to Police by accused regarding his implication in commission of offence—Accused, at the relevant time, was alone and driving the vehicle—Alleged contraband of nineteen kgs. charas Pukhta, in circumstances, would amount to be in his physical and constructive possession—No independent witness had been associated with the search and recovery proceedings, but in absence of any previous ill-will or grudge, Police Officials were always good witnesses; as in such like cases no private witness come forward to depose against accused due to fear of enmity with the narcotics dealer—Case against accused having been established beyond any shadow of doubt, he was rightly convicted—Accused was of tender age and was first offender, there was no previous history of his involvement in such like cases in the past—Case for reduction of sentence was made out—While maintaining conviction of accused, his sentence was reduced to 5 years from life imprisonment—Amount of fine was also reduced from Rs.100,000 to Rs.25,000.

2012  PCrLJ  1901   PESHAWAR-HIGH-COURT

NOSHAD VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic—Bail, grant of—Quantum of sentence to be considered—Scope—Contention of the accused was that in view of the quantity of substance recovered, he was not likely to be awarded the maximum sentence provided by the statute—Validity—Award of maximum sentence to the accused for possessing four kilograms of charas was doubtful—Court while hearing bail petition was not supposed to keep in mind the maximum sentence provided by the statute but the one which was likely to be entailed by the facts and circumstances of the case, especially, when the ultimate conviction, if any, could repair the wrong caused by the mistaken relief of bail—Accused was allowed bail, in circumstances.

2012  PCrLJ  1901   PESHAWAR-HIGH-COURT

NOSHAD VS State

1. 9—Possession of narcotic—Sentence—Quantum—Scope—Quantum of sentence had to be commensurate with the quantum of substance recovered.

2012  PCrLJ  1151   PESHAWAR-HIGH-COURT

KHURSHEED KHAN VS State

1. 9(c) & 48—Possession of narcotics—Appreciation of evidence—Case of two versions—Scope—Contention of accused that he had a monetary dispute with one of the persons who was present in the vehicle with him and was prey to the ill design of the said person, against whom a narcotic case was pending and with whom Anti-Narcotic Force staff had joined hands—Validity—Two prosecution witnesses had admitted in their statements that no recovery was made from the personal possession of the accused—Driver of the vehicle from which narcotics were recovered, was let free along with the vehicle in question—No evidence on record existed to establish that accused was either owner of the vehicle or the narcotics were recovered from his personal possession—Accused had some monetary dispute with one of the arrested persons present in the vehicle, who had been previously involved in a narcotics case—Driver of the vehicle had been abandoned by the prosecution being not traceable, but said driver produced an attendance chit in court, handed over to him by the police, which made it clear that he was duly present in his house and not untraceable— Said driver was  the  principal  witness  for the  prosecution  but he   was not  produced  at  trial  without  any  convincing  reason,  and  instead  he  was  produced  by  the  defence and shattered the prosecution story in his statement—No evidence existed to suggest that accused was previously involved or convicted in cases of similar nature and his mere presence in the vehicle at the relevant time would not be sufficient to condemn him for the alleged crime—Case had two versions; one of the prosecution and the other of the accused, and wherever there were two versions and the version set-up by the defence was probable, the court would invariably incline to follow  the  defence  version—Prosecution  had  failed  to connect accused with the commission of the crime—Appeal was accepted, judgment of Trial Court was set aside and accused was acquitted of the charge.

2012  PCrLJ  1151   PESHAWAR-HIGH-COURT

KHURSHEED KHAN VS State

Ss. 9(c) & 48—Possession of narcotics—Appreciation of evidence—Case of two versions—Scope—Wherever there were two versions; one of the prosecution and the other of the accused, and the version set-up by the defence was probable, the court would invariably incline to follow the defence version.

2012  PCrLJ  1046   PESHAWAR-HIGH-COURT

ZAR MUHAMMAD VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking narcotics—Bail, grant of—Recovery of narcotics from an abandoned truck—Delayed arrest—Non-conducting of identification parade—F.I.R. disclosed that 200 kgs. of charas was recovered  from  an  abandoned  truck  and  police  informer  had stated that the truck was owned by the accused—Accused was arrested twelve days after the registration of the case and nothing was available on record to determine as to who had witnessed the accused with the truck or the narcotics recovered from it—Accused was implicated on mere information of the police informer without any cogent proof and it was yet to be determined whether accused was driving the truck or was owner of the same—Nothing on record revealed that narcotics were recovered from the possession of accused and no identification parade had been conducted to establish his guilt—No evidence was available to connect the accused with the recovered narcotics, therefore,  his  bail  petition  was  allowed  and  he  was  admitted  to bail.

2012  PCrLJ  886   PESHAWAR-HIGH-COURT

SAID ZAREEN VS State

1. 9(c)—Possession and trafficking of narcotics—Appreciation of evidence—-Benefit of doubt—Contradictions in statements of witnesses—Delay in sending samples—Failure to exhibit recovery memo on record—Trial Court had convicted the appellants under S.9(c) of the Control of Narcotic Substances Act, 1997—Validity—Prosecution witnesses had contradicted each other on material aspects of the case—F.I.R. stated that bus was brought to police station where it was searched and alleged narcotics were recovered from its secret cavities, but investigating officer had mentioned that the local police had already searched the vehicle before it was brought to the police station—Complainant (SHO) negated contents of his report in his cross-examination by stating that he had detected and searched out the contraband on the motorway and thereafter vehicle was shifted to police station—Contents of F.I.R. revealed that bus in question was coming from place ‘B’, but investigating officer had stated that bus was travelling from place ‘M’ to ‘K’—Investigating officer had admitted that, in the two site plans prepared by him, he had not shown the presence of the appellants, and that marginal witnesses to the recovery memo in their statements under S.161, Cr.P.C. neither disclosed the names of the appellants nor showed the factum of their arrest—Prosecution witness had stated that there was no mention of arrest of appellants in the recovery memo and showed his ignorance with regard to the fact whether bus was searched on the spot or not—Complainant (SHO) had admitted that nothing incriminating had been recovered from immediate possession of the appellants nor any registration or licence in the names of the appellants were recovered—Neither alleged contraband was produced at trial nor its destruction certificate was brought on file—Samples were sent to Forensic Science Laboratory (FSL) after a delay of eighteen (18) days but nothing was brought on file to show  whether  the  samples  were  in  safe  custody  before being sent to the laboratory—Recovery memo had not been exhibited on record—Prosecution had failed to prove charges against appellants beyond reasonable doubt—Conviction and sentences of appellants were set aside and they were acquitted of the charges—Appeal was allowed.

2012  PCrLJ  886   PESHAWAR-HIGH-COURT

SAID ZAREEN VS State

Ss. 9(c) & 33(2)—Possession and trafficking of narcotics—Appreciation of evidence—Benefit of doubt— Vehicle of appellant had been confiscated on the order of the Trial Court—Validity—Prosecution had failed to show conscious knowledge of the appellant and Trial Court had neither heard the appellant nor provided him an opportunity of producing evidence, as required under S.33(2) of Control of Narcotic Substances Act 1997—Impugned order to the extent of the confiscation of the vehicle was set aside and vehicle in question was ordered to be returned to its lawful owner—Appeal was allowed.

2012  PCrLJ  338   PESHAWAR-HIGH-COURT

BAKHT GUL VS State

1. 9(c)—West Pakistan Arms Ordinance (XX of 1965), S.13—Qanun-e-Shahadat (10 of 1984), Art.122—Possession and trafficking of narcotics and unlicensed arm—Appreciation of evidence—Allegation against co-accused was that they were sitting in the vehicle as passengers; their case was distinguished from the case of accused—Prosecution, in such cases, was required to produce evidence to show that said persons (co-accused) were in joint possession and control of the vehicle or that they had any concern or dealt with properly in any manner particularly in the case when the narcotic substance was kept in diggi (trunk) of the vehicle or hidden from all other persons—If no evidence was led by the prosecution to indicate that such persons knew that narcotic substance was concealed in the diggi (trunk); or had knowledge of the said place that would not attract the provision of Art.122 of Qanun-e-Shahadat, 1984—If the property was lying open within the view of said persons or they knew the placement of the property, then the situation would have been quite different in such a situation, they were required to explain their position; in terms of Art.122 of Qanun-e-Shahadat, 1984 and without such explanation their involvement in the case would have been proved—Prosecution had failed to prove the knowledge on the part of co-accused—Contraband was not within their view and they also had no knowledge of the placement of narcotic, therefore, they could not be held responsible of the joint possession of the property with the driver/accused—Prosecution had simply proved presence of co-accused in the car, mere presence in the car would not involve co-accused in the case, unless conspiracy or abetment of the offence was shown and proved—Prosecution, in circumstances,  had  failed  to  prove  the  case  against  co-accused—Conviction recorded against the co-accused vide impugned judgment, was set aside and they were released, in circumstances.

2012  PCrLJ  338   PESHAWAR-HIGH-COURT

BAKHT GUL VS State

1. 9(c)—West Pakistan Arms Ordinance (XX of 1965), S.13—Possession and trafficking of narcotics—Appreciation of evidence—Accused was driver of the car from which narcotic was recovered—Person driving the  car  was  incharge  of  the  same  and  it  would be under his control and possession and whatever articles were lying in the car would be under his control and possession—Knowledge and awareness would be attributed to the incharge of the vehicle—No evidence in rebuttal having been produced by accused, appeal of accused against conviction and sentence, was dismissed, in circumstances.

2012  PCrLJ  313   PESHAWAR-HIGH-COURT

WAHEEDULLAH VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Accused was driving truck in question and was incharge of the vehicle which was under his control and possession—Whatever articles were lying in the vehicle were under the control and possession of the accused—Huge quantity of narcotic was recovered from the secret cavities in the cabin of the truck for which no other person could be held responsible, except the person who was incharge of vehicle which he was driving—No inconsistency was found in the evidence of prosecution witnesses recorded during the trial and despite lengthy cross-examination no contradiction could be pointed out by the counsel for the accused—Fact that narcotics were secured from the possession of accused being driver of truck in question, he was involved in case and the prosecution had proved the case against him—Appeal filed by accused, was dismissed, in circumstances.

2012  PCrLJ  245   PESHAWAR-HIGH-COURT

JAMAL SHAH VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—F.I.R. was promptly lodged—“Charas” had been recovered in the presence of accused from a portion of the petrol tank of the motorcar in which they were travelling—Report of the samples of “charas” sent to Laboratory for analysis was positive—All the documents produced by the prosecution during the trial of the case had gone unchallenged on behalf of accused, which had supported the prosecution story—Plea taken by accused in defence that they were going on picnic was neither convincing nor the same was established on record—Accused had not explained their presence on the spot in their statements recorded under S.342, Cr.P.C.—No animosity of any sort of the police with the accused was shown—Huge quantity of contraband could not be foisted on the accused without any valid reason—Delay of 23 days in sending the samples to the Chemical Examiner for analysis was of no consequence, as no objection had been raised about  the  tampering  of  the  contraband,  nor safe custody  of  the  same had  been  challenged—Prosecution  evidence was  consistent,  coherent  and  had  no  material  contradiction—Such was  not  the  rule  of  universal application  that  in  all circumstances the case would be registered by the Sub-Inspector—Nothing was brought on record in cross-examination, whereby any benefit could be extended to accused— Appeal of accused was dismissed in circumstances.

2012  PCrLJ  131   PESHAWAR-HIGH-COURT

SAEED AHMAD VS State

1. 9(c)—Customs Act (IV of 1969), Ss. 6, 7 & 8—Possessing and trafficking of narcotics—Appreciation of evidence—Sentence, reduction of—Statements of the prosecution witnesses, if taken in totality, were in consonance on material particulars—Samples were sent for chemical examination within 24 hours of the seizure made by the raiding authorities—No possibility existed for tampering with the samples—No search and recovery were made by the raiding party at the place of apprehending the accused and vehicle—Samples of the recovered contrabands obtained and sent for chemical examination, were not taken separately from each of the 207 packets of the ‘charas’ and 9 packets of ‘opium’—Prosecution witness improved upon his earlier statement and testified that the samples were obtained from each and every packet of the recovered contraband—Such improvement by the witness not only contradicted the contents of the F.I.R., recovery memo of the contrabands, his statement during the investigation and the statement of other prosecution witness—Standard of proof had to be strict and beyond any doubt for special penal provisions having capital punishment—Prosecution could not seek shelter of any internal instruction; and that too of only a part thereof, ignoring the other particulars of the mode and manner of the recovery stated therein—Unless the samples were taken from the respective recovered packets of contraband and confirmed through a positive report of Forensic Science Laboratory, said contrabands contained in the packet, would not prove ‘possession’ required under Control of Narcotic Substances Act, 1997—Prosecution had clearly not proved that they had obtained samples from 207 recovered packets of ‘charas’ and a packet of ‘opium’—Quantity to meet the threshold of S.9(c) of Control of Narcotic Substances Act,  1997  had  not  been  proved  by  the prosecution—Such doubt, regarding the quantity of narcotics recovered from the ‘conscious possession’ of accused, due to lack of proof, should go in favour of the accused—Conviction of accused was maintained,  but  for  offence  punishable  under  S. 9(a)  and  not under S.9(c) of Control of Narcotic Substances Act, 1997—Accused was sentenced to six years’ rigorous imprisonment, in circumstances.

2012  MLD  1884   PESHAWAR-HIGH-COURT

NAVEED SHAHZAD VS State

Ss. 9(c) & 29—Possessing and trafficking narcotics—Appreciation of evidence—Trial Court, had rightly found that prosecution had undoubtedly established the recovery of contraband charas weighing 99 Kgs. and heroin powder weighing 4 Kgs. from the secret cavities of vehicle driven by accused, regarding which he had full knowledge—Witnesses who appeared in the Trial Court against accused had no enmity or malice against him—Though witnesses were officials of Anti-Narcotic Force, but in the absence of enmity or grudge, they were as competent witnesses as other public witnesses; and their testimony could not be discarded or brushed aside on the sole ground that they were members of Anti-Narcotic Force—All the prosecution witnesses who had witnessed the recovery of the contraband from the vehicle being driven by accused, had remained consistent so far as the time, place and mode of recovery was concerned, despite lengthy cross-examination by the defence—No reason existed to discard their testimony—Trial Court had rightly rejected defence version of accused after considering each and every piece of evidence on record before recording conviction against accused—Prosecution had successfully established its case through confidence inspiring evidence of eye-witnesses, which was not at all shattered by the defence during cross-examination—Report of Forensic Science Laboratory in respect of the samples separated from lot of contraband, was in positive—Accused had not discharged his burden within the meaning of S.29 of Control of Narcotic Substances Act, 1997—Impugned judgment and order of the Trial Court was well founded and needed no interference—Conviction and sentence of accused was maintained and appeal being devoid of force, was dismissed.

2012  MLD  1846   PESHAWAR-HIGH-COURT

ALI REHMAN VS State

Ss. 9(c) & 29—Smuggling of narcotic—Appreciation of evidence—Accused was on the driving seat of vehicle allegedly carrying narcotics and was driving the same at the time of occurrence—Date, time and arrest of accused from the spot, were not questioned during the course of cross-examination—Both prosecution witnesses who furnished ocular account, had made no departure from their earlier version and had fully supported the prosecution story—Said witnesses had remained fully consistent, coherent and had successfully faced the test of cross-examination and no material contradiction had been pointed out from their evidence—Minor contradictions pointed out by the counsel for accused, were not serious in nature, and those could never be considered sufficient to vitiate the trial, or make  the  recovery  doubtful—Mere fact that said witnesses belonged to Anti-Narcotic Force, by itself could not be considered a good ground to discard their statements—Accused had not produced any convincing straightforward and coherent evidence—Accused though had produced defence, but he failed to prove his version of having no conscious knowledge of narcotics in the vehicle driven by him—Story narrated by accused in his statement under Ss.342 and 340(2), Cr.P.C., did not appeal to the prudent mind—Material contradictions existed in his statement, which had belied the story of accused—Witnesses produced by accused, had not toed the lines of accused in letter and spirit—Story narrated by accused was nothing, but a bull and cock story, while against him the story narrated by the prosecution witnesses, was natural, true and supported  by  the  recovery  of  huge  quantity  of  narcotics  and  the  truck which was under the control of accused—Recovery witnesses were not shown to be motivated by any ill-will or enmity towards accused—Accused had failed to prove his case by producing convincing and strong evidence—Accused could not point out any mala fide or ulterior  motive  on  behalf  of  seizing  officer  to  falsely  charge  him for  the  recovery  of  huge  quantity  of  narcotics  recovered  from  the vehicle which was under his control—Appeal was dismissed.

2012  MLD  1542   PESHAWAR-HIGH-COURT

NOOR KHAN VS State

S.497—Control of Narcotic Substances Act (XXV  of  1997),  S.9(c)—Possessing narcotic—Bail, grant of—Accused had no past criminal history, as neither he was previously booked for such crime nor had been convicted—Case being of borderline, benefit of the same would go to accused—Accused was admitted to bail, in circumstances.

2012  MLD  1521   PESHAWAR-HIGH-COURT

GUL ANWAR VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession and trafficking of narcotic—Bail, grant of—Further inquiry—Recovery of narcotics from a consignment—Allegation against the accused (Custom Clearing Agent) was that he facilitated the export of a consignment from which seven (7) kilograms of heroin was recovered—Failure to prove conscious knowledge of narcotics—Effect—Contentions of the accused were that he was only a custom clearing agent and neither was he the exporter nor the owner of the consignment; that the job of the accused was only to facilitate the transaction of exporters, and that the company exporting the consignment had given an undertaking that the consignment in question did not contain any antiques, narcotics, drugs, explosives or any such items and in case the same were found, the company would be responsible for the same—Validity—Accused had facilitated the export of the consignment on valid documents including an undertaking of the manager of the exporting company—Prosecution had failed to establish the requisite conscious knowledge of the accused about the presence of the narcotics in the consignment—Mere presence without knowledge of the concealment of narcotics in the consignment did not automatically make the accused responsible for the alleged recovery—Case against the accused called for  further inquiry entitling him to the concession of bail—Accused being only a clearing agent was admitted to bail, in circumstances.

2012  MLD  1168   PESHAWAR-HIGH-COURT

AMANULLAH VS State

S.497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9—Possession of narcotic—Bail, grant of—Further inquiry—F.I.R. revealed  that  on  spy  information, police intercepted/stopped  the  vehicle  and  effected  the  recovery  of  3700  grams  of  contraband  charas from the secret cavities of its “diggi”—Timing of occurrence and  that  of  the  report  were  one  and  the  same  despite  the  fact  that  the police  station concerned was at a distance of 16/17 kilometers from the spot—Question  as  to  whether  it  was  the  act  of one  of  accused persons, or of both, or of some passenger travelling in the vehicle, could best be resolved during trial—Alleged extra-judicial confession of the accused persons was subject to scrutiny during trial—Prima facie case squarely fell within the ambit of further inquiry entitling both the accused persons to the concession of bail—Bail application was accepted and both the accused were admitted to bail.

2012  MLD  992   PESHAWAR-HIGH-COURT

SARDOOR KHAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic—Bail, refusal of—Accused and co-accused, brothers inter se, were present in the vehicle from which allegedly one maund of narcotic was recovered—Co-accused was driver of the vehicle and remained an absconder—Possibility of accused being in league with his co-accused and the fact that he had conscious knowledge regarding presence of narcotic in the secret cavities of the truck could not be ruled out—Quantity of narcotic recovered weighed one maund and the Forensic Science Laboratory report was positive—Investigation in the case was complete and challan had already been sent to the court for trial—Prima facie case existed against the accused which disentitled him from the concession of bail—Bail petition of accused was dismissed, in circumstances.

2012  MLD  620   PESHAWAR-HIGH-COURT

Mst. YASMEEN VS State

1. 9(c)—Possession and trafficking of narcotics—Appreciation of evidence—Trial court had convicted the appellants under S. 9(c) of the Control of Narcotic Substances Act, 1997—Contentions of appellants was that no independent witness was associated ; that police officials had planted the narcotics on them, and that sealed parcels containing narcotics were opened before sending them for examination, which made the recovery doubtful—Validity—Samples from recovered narcotics were sent to Forensic Science Laboratory (FSL) for chemical analysis and report received was positive—Narcotics recovered from appellants were in such huge quantity, that same could not have been planted by the police—Statements of prosecution witnesses were found consistent and their testimonies were not shattered in cross examination—Minor discrepancies in statements of prosecution witnesses, did not imply that recovery effected was false and concocted—Section 25 of Control of Narcotic Substances Act 1997, overrode the provision of S. 103, Cr.P.C, and for such reason contention of appellants that no independent witness was associated, had no force—Appellants had failed to make out a case for reduction in sentences as Trial Court had already recorded alternate sentences for the alleged crime—Appeals were dismissed in circumstances.

2012  MLD  602   PESHAWAR-HIGH-COURT

LATIF KHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking of narcotics—Bail, grant of—No evidence was on record to show that shop in question, wherefrom the recovery of charas was made belonged to the accused—Accused was arrested on 8-7-2011, but challan had not been submitted  in  the  court—Was yet to be determined after adducing evidence at trial as to whether accused was the actual owner of the shop wherefrom charas in question was recovered—Investigation in the case was complete and accused was no more required for further inquiry—Accused was admitted to bail.

2012  MLD  269   PESHAWAR-HIGH-COURT

SIKANDAR SHAH VS State

1. 9(b)—West Pakistan Arms Ordinance (XX of 1965), S.13—Appreciation of evidence—Benefit of doubt—Contraband and the pistol recovered from the accused were not sealed into parcels just after recovery—Sample of recovered substance was sent to Forensic Science Laboratory after an unexplained delay of four days—Investigating Officer had not weighed the recovered contraband—No one from the general public had been examined by the Investigating Officer—F.I.R. and prosecution evidence revealed that heroin was recovered from the accused, whereas in the examination of accused under S.342, Cr.P.C. recovery of “charas” was mentioned—Such typographic mistake, if any, was not tried to be corrected by the prosecution by making an application at any stage during the trial or even before High Court—Whole story of prosecution, thus, had become doubtful—Pistol recovered from accused was stated to be an unlicensed one—Copy of the licence of the said pistol had been produced in High Court, which had been admitted as correct by State counsel—Pistol being a licensed one it would be a futile exercise to remand the case to Trial Court on technical ground—Case of prosecution was replete with doubts—Accused was acquitted in circumstances.

2012  MLD  250   PESHAWAR-HIGH-COURT

GHANI SHER VS State

1. 9(c)—Possession and trafficking of narcotics—Appreciation of evidence—Sentence, reduction in—Accused was apprehended on the spot having in his possession four Kgs. charas and report received from Forensic Science Laboratory regarding the same was positive—Accused had been involved in such like crime, but had claimed to have been acquitted—Overwriting regarding the weight of contraband charas had been corrected subsequently—Testimony of five prosecution witnesses, could not be shattered despite lengthy and taxing cross-examination—Witnesses were consistent on each and every aspect of the matter—Nothing had been brought from their mouth, which could favour the accused—Conviction recorded by the Trial Court being in accordance with law and material available on record, same was maintained, in circumstances—Mandatory provisions of S.103, Cr.P.C. had not been complied with in the case by the Police—Some other minor contradictions were found in the statements of prosecution witnesses, benefit whereof must go to accused—Accused was stated to have been acquitted in earlier case against him—Case for reduction of sentence having been made out, while maintaining the conviction of accused, sentence of 5 years’ R.I. awarded to him by the Trial Court, was reduced to 2 years’ R.I. and amount of fine Rs.50,000 was also reduced to 25,000, in circumstances.

2012  MLD  220   PESHAWAR-HIGH-COURT

MUHAMMAD AFZAL VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession and trafficking of narcotics—Bail, grant of—Further inquiry—Border line case—High Court, in similar circumstances, had granted bail to accused, where the contraband was four kgs.—Whether accused were in conscious knowledge of the recovered stuff lying in the vehicle or not, was a question to be determined after recording of evidence, but accused could not be kept behind the bars for indefinite period and that too when they had no previous history of involvement in such like cases—Three accused were involved and was yet to be ascertained the connection and extent of the contraband with the accused persons—Offence for which accused were charged, though, prima facie, fell within the prohibitory clause of S.497, Cr.P.C., but under the law, the punishment likely to be awarded to accused after the trial as per recovery of alleged contraband, would not fall within the said prohibitory clause—Whether accused could be awarded sentence attracting prohibitory clause, in view of the quantity of substance recovered, would be a question which required further inquiry—Alleged recovered “Garda charas” was not narcotic in its entirety and the Chemical Examiner had not mentioned percentage of narcotic substance, therein, which had made the case of accused that of further inquiry—“Garda” was dust and its quantity allegedly recovered from accused would not make them traffickers/peddlers of contraband—Border line case was made out, which must go in favour of accused—Accused were admitted to bail, in circumstances.

2012  PLD  512   LAHORE-HIGH-COURT-LAHORE

NIAZ AKHTAR VS THE STATE

1. 426(1-A)—Control of Narcotic Substances Act (XXV of 1997), S.9—Suspension of sentence, availability of—Person dealing in large quantity of heroin—Such a person could safely be termed as a “dangerous criminal” for purposes of S.426, Cr.P.C.

2012  PLD  512   LAHORE-HIGH-COURT-LAHORE

NIAZ AKHTAR VS THE STATE

1. 426(1-A)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession and trafficking of narcotic—Petition for suspension of sentence, refusal of—Question was as to whether person involved in offences governed by Control of Narcotic Substances Act, 1997, could be termed as dangerous criminal and whether he could avail the benefit of S.426(1-A), Cr.P.C.—Recovery of 25 kilograms of charas stood proved against the accused and he was sentenced to imprisonment for life by the Trial Court—Contention of accused was that there was no likelihood of hearing of his appeal in the near future and his statutory right of suspension of sentence and release on bail had matured—Validity—Selling narcotics directly affected the moral and social fabric of the society and had the potential of destroying the health and family life of a large number of people in addition to bringing a bad name to the country—Substances like heroin/charas had been declared as dangerous drugs on account of their dangerous effects—Accused seemed to be involved in the business of drug trafficking at a large scale—Such business was not only prohibited by law but was also against the Injunction of Islam ordained in the Holy Quran and Sunnah—Petition for suspension of sentence was dismissed, in circumstances.

2012  PLD  383   LAHORE-HIGH-COURT-LAHORE

ABDUL WASAY VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c) & 15—Control of Narcotic Substances (Regulation of Drugs of Abuse, Controlled Chemicals, Equipment and Materials) Rules, 2001, Sched. V—Possession of narcotics, aiding, abetment or association in narcotic offences—Bail, refusal  of—Ephedrine  as  a  controlled substance—Scope—Vehicle of accused persons had been intercepted at a checkpoint and after their search, 25 kilograms of controlled substance, Ephedrine, was found in their possession, which the accused persons were carrying without any license/permit—Contentions of the accused persons was that they were arrested on the conspiracy of the owner of a pharmaceutical company, who provided the vehicle and controlled substance to the accused persons  for transportation and subsequently informed the Anti-Narcotics Force officials about it; that accused persons had some business dealings with the said owner of pharmaceutical company and he involved the accused persons in the case to get rid of his liability; that officials of the  Anti-Narcotics Force had investigated the matter and found force in the contentions of the accused persons; that police investigation officer also found the contentions of the accused persons to be plausible and placed them in column No.3 of the report submitted under S.173, Cr.P.C; that accused persons were no more required for further investigation, and that their implication in the case could only be considered after recording of evidence—Validity—Ephedrine was a controlled substance falling under Schedule V of the Control of Narcotic Substances (Regulation of Drugs of Abuse, Controlled Chemicals, Equipment and Materials) Rules, 2001, therefore, possession of same clearly fell within the ambit of S.6 of the Control of Narcotic Substances Act, 1997—Keeping Ephedrine without any licence or lawful permission was in violation of S.6 of the Control of Narcotic Substances  Act, 1997, which  was  punishable  under S.9 of the said Act—Contention of the accused persons that they were trapped by the owner of a pharmaceutical company with whom they had some business dealings, was not supported by any evidence—Investigation officer had placed the accused in column No.3 of the challan and observed that controlled substance  had been recovered from the accused persons and their guilt had to be decided by the court in accordance with the law—Since huge quantity of controlled substance was recovered from the accused persons and they had no valid licence for the same, no ground for grant of bail was made out—Bail petitions of accused persons were dismissed, in circumstances.

2012  YLR  2607   LAHORE-HIGH-COURT-LAHORE

TAHIRA BIBI VS State

1. 497, first proviso—Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 9(c)—Possession of narcotics—Bail, grant of—Allegation against the accused and her daughters (co-accused) was that they sold narcotics to drug-addicts belonging to the village of the complainant because of which a number of youths of the village had succumbed to the addiction—Validity—Allegation against the accused was vague and shadowy inasmuch as it did not reveal the time of the occurrence, the names of the drug-addicts who allegedly bought narcotics from the accused and those who had perished because of the drug-trade of the accused—Accused had been stated to be a highly dangerous character for the youths of the area but there did not exist any evidence to believe such an attribution, as she was a previous non-convict—Although the accused had a history of involvement in other cases of similar nature, but mere factum of involvement in a number of cases without conviction in any of them could not be deemed to be sufficient to label a person a dangerous criminal—Accused was a female whose case was covered by first proviso to section 497, Cr.P.C—No useful purpose would be served  to  keep  the  accused  behind  bars  for an indefinite period of time—Bail petition of the accused was allowed and she was admitted to bail.

2012  YLR  2387   LAHORE-HIGH-COURT-LAHORE

ABDUL QUDOOS VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 15—Possession of narcotics, aiding, abetment or association in narcotic offences—Bail, grant of—Further inquiry–Police had apprehended the co-accused from whom 27 kilograms of narcotic was found and he disclosed that he was being patronized by the accused (police-constable), who had with him an amount of Rs.450, 000—Accused was subsequently arrested by the police and the said amount was allegedly recovered from him—Contentions of the accused were that he had been- involved in the case under a conspiracy by the inimical Investigating Officer so as to ruin his career, and that the Investigating Officer had failed to collect any incriminating evidence against him—Validity—Although F.I.R. revealed that Rs, 450,000 had been recovered from the accused but it did not disclose as to what this recovery was meant for—Co-­accused had not alleged that he had paid the said amount to the accused for purchasing narcotics from him—Although such a heavy amount in the pocket of a police-constable raised eyebrows but without any auxiliary linking evidence, the accused could not be deemed to be a sponsor or patron of the co-accused—No incriminating evidence existed against the accused except for the ambiguous confessional statement of the co-accused–Investigation officer had conducted the investigation inefficiently and in-completely—Case of the accused constituted need for further inquiry into his guilt as envisaged by S. 497(2), Cr. P. C—Bail application was allowed and he was admitted to bail.

2012  YLR  2007   LAHORE-HIGH-COURT-LAHORE

ZULFIQAR HUSSAIN VS State

Ss. 9(c) & 25—Possessing and traffick­ing narcotic—Appreciation of evidence—Sentence, reduction in—Counsel for accused did not object conviction of accused, but had prayed for reduction of his sentence—Accused was rightly convicted on the basis of the evidence of recovery of the charas from him—Report of the Chemical Examiner also supported the prosecution case—No infirmity was found in the impugned judgment to the extent of conviction of accused and no ground or justification was to warrant interference in the same—Conviction of accused was – maintained, in circum­stances—Prosecution evidence nowhere mentioned . that 45-Kgs charas was recovered from the accused—Trial Court had assumed that 45-Kgs charas was recovered from the accused mainly basing his statement recorded _ under 5.342, Cr. P. C. —Accused had also led defence evidence in that behalf—Some part of the statement of accused was not to be taken as true and the remaining otherwise–Statement of accused either be discarded as a whole or be accepted in toto-Trial Court was not justified in law while giving finding that 45-Kgs charas was recovered from the accused—In view of relatively lesser quantity of the narcotic substance i.e. 5-Kgs recovered from accused, his sentence was reduced from death sentence into imprisonment for seven years–Benefit of S.382-B, Cr.P.C. was also extended to accused—Burden of fine as was ordained by the Trial Court, would remain intact.

2012  YLR  1262   LAHORE-HIGH-COURT-LAHORE

WAZIR AHMED VS State

1. 498 & 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Ad interim pre-arrest bail , confirmation of—Further inquiry—Only allegation brought against accused revolved around spy information allegedly provided to the complainant (police official)—Contents of F.I.R. revealed an unusually detailed and precise tip-off, which could hardly be considered as an admissible piece of evidence—Prosecution witnesses did not say any word in their statements under S. 161, Cr.P.C about the fact of receipt of spy information, in terms mentioned by the complainant, nor they mentioned anything about the culpability of the accused in any manner—Previous F.I.R. had been registered at the instance of a widow (sister-in-law of one of the accused) , which contained allegations against police officials of the same police station where present F.I.R. had been lodged—Accused were closely related to the husband of the said widow, and in the backdrop of previous grudge between accused and police officials, false implication of accused in the present case could not be ruled out—Prosecution had contended that accused were involved in cases of similar nature in the past, but failed to point out any viable connecting evidence against the accused with respect to the present case—Case of accused constituted need for further inquiry into their guilt as contemplated under S. 497(2), Cr.P.C—Bail application of accused was allowed and pre-arrest bail granted to them was confirmed.

2012  YLR  867   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ASIF VS State

Ss. 9(c) & 29—Possession and trafficking of narcotics—Appreciation of evidence—Benefit of doubt—When severe punishments were provided under special enactment i.e. Control of Narcotic Substances Act, 1997, heavy burden lay on the prosecution to prove the charge against accused beyond any reasonable shadow of doubt—Keeping possession of narcotic substance itself was an offence; and if conscious possession of any such substance was proved, then under S.29 of Control of Narcotic Substances Act, 1997, burden would shift on the person to show as to how and in what circumstances he was found in possession of the substance; and if he failed to show cause, severe punishment could be awarded to him—Prosecution was to prove firstly that the recovered substance was narcotic; and was to be proved with certainty by unimpeachable admissible evidence statements of the prosecution witnesses that the substance was recovered from the possession of the accused person—In the present case,  accused was found present in the parking area of the Airport along with his two co-accused, and from his possession a bag containing 4 kgs. heroin was recovered out of which only one gram substance allegedly was separated for sample—Two witnesses who claimed themselves to be present at the time of recovery of heroin from accused, specifically stated that only one gram was separated as sample—Five packets which contained five grams of heroin as sample parcel were sent to the Office of Chemical Examiner, about which report in the positive was submitted before the Trial Court—Said report, according to the statement of prosecution witness, did not relate to the substance recovered from the accused—One could not say with certainty that the substance allegedly recovered from the accused was narcotic—Prosecution was not able to prove that substance was the same which was recovered from the accused—Report of Chemical Examiner, in circumstances, could not connect accused with the alleged recovery of heroin—Benefit of doubt was to be extended in favour of accused—Impugned conviction and sentence awarded to accused, was set aside, he was acquitted of the charge and was released from the jail, in circumstances.

2012  YLR  805   LAHORE-HIGH-COURT-LAHORE

IBRAR HUSSAIN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Principle—Approach of court should be dynamic and pragmatic in reaching true facts of the case and drawing correct and rational inference and conclusion, while deciding such cases—Court shall consider entire material as a whole and if satisfied about the case having been proved, conviction should be recorded notwithstanding procedural defects.

2012  YLR  805   LAHORE-HIGH-COURT-LAHORE

IBRAR HUSSAIN VS State

Ss. 9(c), 25 & 29—Smuggling of narcotics— Appreciation of evidence—Statements  of  prosecution  witnesses  had  no material discrepancies—Minor discrepancies and innocent admissions during cross-examination were natural due to a lapse of more than three years—Credibility of police witnesses or Excise Staff was as good and respectable as any other public witnesses and their statements could not be discarded owing to their being employees of the said departments—Section 25 of the Control of Narcotic Substances Act, 1997, had excluded the applicability of S.103, Cr.P.C. in narcotic cases— Non-association of private witnesses with investigation, therefore, was no defect to vitiate conviction—Provisions of Ss.20, 21 and 22 of the said Act being directory in nature, their non-compliance would not make the trial bad in the eyes of law—Charas and opium had been recovered from the car in possession of accused, technicalities of any nature could be overlooked in the larger interest of the country, if the case otherwise stood proved—Chemical Examiner’s reports regarding charas and opium recovered from the accused were positive—Prosecution thus, had discharged its initial onus, whereas accused had failed to discharge their burden in terms of S.29 of the Control of Narcotic Substances Act, 1997—Prosecution evidence was consis-tent—Impugned judgment did not suffer from any illegality—Appeals were dis-missed in circumstances.

2012  YLR  85   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD NAEEM-UL-HAQ VS MUHAMMAD IQBAL

Ss. 497(5) & 498—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 15 & 51—Possessing narcotic—Petition 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.

2012  PCrLJ  1877   LAHORE-HIGH-COURT-LAHORE

MAKHDOOM SHAHABUDDIN VS State

Ss. 498 & 337—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 14, 15 & 16—Control of Narcotic Substances (Regulation of Drugs of Abuse, Controlled Chemicals, Equipment and Materials) Rules, 2001, Sched. V—Possession of narcotics, import or export of narcotic drugs, trafficking or financing the trafficking of narcotic drugs etc., aiding, abetment or association in narcotic offences—Pre­arrest bail, refusal of—Ephedrine—Classification as a controlled narcotic substance—Scope—Approver, statement of—Evidentiary value—Scope—Allegations against accused persons were that they were involved in the grant of ephedrine/chemical quotas to two companies in contravention of rules; that they converted export status of said ephedrine to that for local consumption and let the two companies in question dispose of their quotas in an -unauthorized manner—Statements of approvers connected accused and co-accused with commission of the alleged crime—Contentions of accused and co-accused were that statements of approvers was a weak type of evidence having no substantial value; that accused had been involved in the case with mala fide, as his arrest warrants were issued on the day when he was going to be elected as the Prime Minister, and that ephedrine was not a narcotic substance—Validity—Ephedrine was a controlled chemical/narcotic substance—Approvers had fulfilled all the codal formalities as provided in S.337, Cr. P. C., as such their statements would have evidentiary value and would be material and relevant for consideration—Elements of mala fide could not be attached with the officials of investigation agency, as they would not have been benefited by replacing the accused from his candidature of Prime Minister—Pre­arrest bail could only be granted if the proposed arrest was for ulterior motives such as humiliation and unjustified harassment by a prosecuting agency, motivation for which was to. cause irreparable injury to reputation and liberty of the accused person—Said elements were missing in the present case rather had not been raised by accused and co-accused—Prima facie, accused and co-accused had misused their status and by their unauthorized and illegal acts the commission of alleged offence was made possible—Purpose of effective and meaningful investigation into the case could not be achieved by putting accused and co-accused at large—Accused and co-accused were denied bail, in circumstances.

2012  PCrLJ  1581   LAHORE-HIGH-COURT-LAHORE

SHAHZADI MUMTAZ alias TAJI VS THE STATE

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic—Bail, grant of—Allegation against the accused was that charas weighing 1250 grams was recovered from her possession—Investigation officer of the case took the accused in custody and allegedly committed zina-bil-jabr with her, whereafter an inquiry was held which concluded with the observation that allegation of zina-bil-jabr with the accused was correct—Contention of the accused (lady) was that she had been falsely involved in the case under a conspiracy by the Investigation Officer with ulterior motives and he ravished her after taking her in custody—Validity—Investigation Officer  had  abused  his  authority/power  to  commit  an  act  of immorality, and sufficient reasons existed to believe that the accused had been falsely involved in the case under a plan by the investigation Officer—Innocence of the accused could not be ruled out—Bail application of accused was accepted and she was admitted to bail with directions that penal actions recommended/suggested by the Inquiry Officer against the Investigation Officer must be taken to their legitimate end.

2012  PCrLJ  1483   LAHORE-HIGH-COURT-LAHORE

Mst. NAJMA VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing, trafficking of narcotics—Bail, grant of—Further inquiry—Complainant/Police Officer, proved to be personally inimical to accused and other members of her family including her mother—Accused was behind the bars for a period about eight months and conclusion of her trial, was still a remote probability—No evidence existed to believe that accused had any previous criminal antecedents—Further incarceration of accused could be of no consequence to the prosecution case for the reason that, she, after submission of report under S.173, Cr.P.C.  had  been  facing  the  rigours  of  the  trial for  many  months—Sufficient  reasons  existed  to  believe  that  case of  accused called for further probe into her guilt as contemplated under S.497(2), Cr.P.C.— Accused was admitted to bail, in circumstances.

2012  PCrLJ  1449   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD RIZWAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic—Border line case—Bail, refusal of—Accused being previous convict and a hardened criminal—Effect—Allegation against the accused was that charas weighing 1200 grams was recovered from his possession—Contentions of the accused were that alleged recovery of narcotic had been planted upon him; that no independent witness had been associated with the recovery proceedings; that the accused was no more required by the police for further investigation, and that it was a border line case—Validity—Allegedly, 1200 grams of charas was shown to be recovered from the possession of the accused, out of which 10 grams was separated and sent for analysis to the Chemical Examiner, whose report was positive—Offence under S.9(c) of Control of Narcotic Substances Act, 1997, fell within the ambit of prohibitory clause of S.497, Cr.P.C.—Accused was previously shown to be involved in 58 criminal cases, out of which 28 resulted in his conviction, therefore, he could be termed as a hardened criminal—Although the accused had no previous conviction in respect of narcotic offences but his previous conduct, involvement in other criminal matters and convictions, did not entitle him for any concession of bail only on the ground that present case was a border line case—Bail petition of accused was dismissed, in circumstances.

2012  PCrLJ  1035   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AAMIR VS State

1. 9(c)—Death sentence, commutation of—Discretion of court—Court has the discretion to impose punishment keeping in view the facts and circumstances of each case—Role, part, act or omission, character or conduct of accused in some cases may call for lesser sentence than of death—Case of first offender who is not a drug baron can fall in such category—There may be an accused who has no antecedents of any criminal case or who is not an incorrigible, desperate or hardened criminal—Punishment, in such a case, lesser to death can serve the purpose of dispensation of criminal justice—Extreme penalty of death can be avoided to be given to the accused in such cases, to grant him a chance to mend his ways in his future life.

2012  PCrLJ  1035   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AAMIR VS State

1. 9(c)—Possession of Narcotic—Appreciation of evidence—Sentence, reduction in—“Charas” weighing 93 Kgs. had been recovered from both the accused—Prosecution evidence was consistent, unbiased and confidence inspiring and had come from an independent source—Accused had not alleged any animosity against prosecution witnesses—Positive report of Chemical Examiner had connected the accused with commission of the offence—Police Officials were as good witnesses as public witnesses, if their statements inspired confidence—Defence version recorded in the statements of accused under S.342, Cr.P.C. was not worth reliance—Conviction of accused was maintained—“Charas” had been recovered from the accused, which was not as lethal as heroin—Accused admittedly were first offenders with no previous criminal record—Death sentence awarded to each accused was reduced to imprisonment for life to meet the ends of justice in circumstances.

2012  PCrLJ  1035   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AAMIR VS State

1. 9(c)—Appreciation of evidence—Police witnesses, credibility of—Police Officials are as good witnesses as public witnesses, if their evidence inspires confidence.

2012  PCrLJ  878   LAHORE-HIGH-COURT-LAHORE

Rana SHAHID MASIH VS State

1. 426(1-A)(c), 1st proviso—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Suspension of sentence on ground of delay in decision of appeal, refusal of—Accused had been sentenced to imprisonment for life for having 100 kilograms of “charas” in his possession—Offence committed by accused was likely to destroy the fabric of society—Such narcotic peddlers commit these crimes not only consciously but in a well-planned manner irrespective of their hazardous impact on  the  society— Accused  could  be  safely considered a “dangerous criminal” within the meaning of first proviso to S.426(1-A)(c), Cr.P.C. and he could not claim benefit of said provision of law—Petition was dismissed accordingly.

2012  PCrLJ  878   LAHORE-HIGH-COURT-LAHORE

Rana SHAHID MASIH VS State

1. 426(1-A)(c), 1st proviso—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Suspension of sentence—“Dangerous criminal”—Connotation—Persons dealing in large quantity of heroin can safely be termed as “dangerous”.

2012  PCrLJ  878   LAHORE-HIGH-COURT-LAHORE

Rana SHAHID MASIH VS State

1. 497(1), third proviso—Control of Narcotic Substances Act (XXV of 1997), Ss.51(1) & 9(b), (c)—Bail on ground of statutory delay—Third proviso to subsection (1) of S.497, Cr.P.C. cannot be pressed into service in view of subsection (1) of S.51 read with Cls.(b) & (c) of S.9 of the Control of Narcotic Substances Act, 1997, in a case in which the quantity of narcotic drug or psychotropic substance or controlled substance exceeds one Kg and which may entail, inter alia, death sentence.

2012  PCrLJ  830   LAHORE-HIGH-COURT-LAHORE

OKEKE EREC IFEANYI VS State

1. 9(c)—Possession and trafficking of narcotics—Appreciation of evidence—Circumstances in which narcotic was recovered, had shown that 16 kgs. heroin was planted upon accused by complainant for reason best known to him—Chemical Examiner’s report did not reflect that all the eight samples were properly sent to the Office of the Chemical Examiner for analysis—Report made by the Chemical Examiner, in circumstances had no legal value—Set format of giving the report by Chemical Examiner, was not available on the file—Whether substance sent to the Chemical Examiner was narcotic substance was doubtful— Neither  the  complainant  nor  the Chemical  Examiner  had  placed  on  record  any  material  showing  as to  how  the  “heroin”  was  separated  from  the  shampoo,  which was  in  liquid form  in  the   bottles—All  said  deficiencies/lacunas, had not been properly considered/evaluated by the Trial Court, while convicting accused, which had made case of prosecution highly doubtful—Prosecution having failed to prove the charge against accused beyond any shadow of doubt, accused was acquitted, in circumstances.

2012  PCrLJ  352   LAHORE-HIGH-COURT-LAHORE

FARRUKH SHEHZAD VS State

S.9(b)—Criminal Procedure Code (V of 1898), Ss.242, 243 & 244—Confession made by accused during trial—Issue to be determined was whether Trial Court could accept the offer of accused to record his confessional statement during trial at a belated stage, when at the time of framing of charge he had explicitly pleaded not guilty and claimed trial—Once a formal charge was framed and put to accused which was denied by him under S.242, Cr.P.C. then the provisions of S.243, Cr.P.C. would ipso facto become inoperative and court had to proceed under S.244, Cr.P.C. by recording the prosecution evidence and the defence evidence, if any—Confessional statement made by accused after two or three dates of hearing when he had clearly denied the charge  at  the  time  of  framing  the same   was  of  no  legal  effect in view of Ss.244, 265-D, 265-E and 265-F, Cr.P.C.—Conviction and sentence of accused, thus, was not sustainable in law—Circumstances of the case did not demand its remand to Trial Court—Only a meagre quantity of “Charas” had been recovered from accused who was student  of  Engineering  and  he  had  already  undergone  the  agony before the Police during investigation as well as before Trial Court—During the period of probation conduct of accused had been upto the mark—Accused was acquitted in the interest of justice in circumstances.

2012  PCrLJ  91   LAHORE-HIGH-COURT-LAHORE

ASIF IQBAL VS State

1. 9(c)—Criminal Procedure Code (V of 1898), Ss.4(c), 221, 227, 233 & 265-D—Possessing narcotics—Framing, altering and amendment in charge—Scope—Different quantities of ‘charas’ were allegedly recovered from the possession of accused and their co-accused in two episodes; at one and the same time and place of occurrence; for which different recovery memos were prepared by the Investigating Officer at the spot—Law, in such circumstances, required that each accused should have been separately charged for possessing the ‘charas’ allegedly recovered from them—Framing of joint charge against accused persons with regard to separate recovery of charas weighing ‘1020 grams’ from their co-accused recorded through a separate recovery memo was likely to cause prejudice to accused’s case—Charge framed by the Trial Court, was liable to be altered on the basis of material available on the record—Impugned order of the Trial Court declining the request of accused persons for amendment in the charge was against law and facts, based on misappraisal of the incriminating material available on the record likely to cause prejudice to the case of accused, not sustainable in the eye of law and was liable to be set aside—Impugned order was set aside with direction to the Trial Court to amend the charge on the basis of incriminating material available on the record, in accordance with law.

2012  MLD  1711   LAHORE-HIGH-COURT-LAHORE

TALIB HUSSAIN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic—Bail petition—Allegation of mala fide—Pleadings—Scope—Mala fide could not be alleged unless all the material particulars were given in the body of the petition and dilated upon by the counsel of the accused—Mala fide had to be pleaded with particularity.

2012  MLD  1711   LAHORE-HIGH-COURT-LAHORE

TALIB HUSSAIN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic—Bail, refusal of—Allegation against the accused was that 1500 grams of charas was recovered from him after his personal search—Contentions of the accused were that the charas had  been  planted  on  him  by  the police-officials  with  mala  fide  intent;  that  the  case  fell  within the borderline of Ss. 9(b) & 9(c)  of  the Control of Narcotic Substances Act, 1997, and that the offence under S. 9(b)  of  the  said  Act  did  not  fall  within  the  prohibitory  clause  of  S. 497, Cr.P.C—Accused  was  caught  red-handed  with  1500 grams of charas and offence with which he was charged fell within the prohibitory clause of S. 497, Cr.P.C—No material particulars of the mala fide alleged against the police-officials had either been pleaded or mentioned by the accused—Benefit of the contention that F.I.R. was lodged in a contumacious manner and the police officials were inimically disposed towards the accused, could not be given to the accused—Bail petition was dismissed, in circumstances.

2012  MLD  1704   LAHORE-HIGH-COURT-LAHORE

ASIM ALI alias CHAHLI VS State

1. 497(2)—Penal Code (XLV of 1860), Ss. 224/225/382/353/148/ 149/186—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Resistance or obstruction by a person to his lawful apprehension, resistance or obstruction to lawful apprehension of another person, theft after preparation made for causing death, hurt or restraint, in order to the committing of the theft, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapons, unlawful assembly, obstructing public servant in discharge of public functions, possession of narcotic—Bail, grant of—Further inquiry—Allegation against the accused and co-accused was that they launched an assault on a raiding police party and snatched the main accused from the custody of the police, and that they snatched a motorcycle from a police constable and fled from the spot of occurrence—Validity—No specific role had been attributed to the accused except for being a member of the mob, which allegedly resorted to rioting—Accused was not found possessing any narcotic substance at the time of his arrest by the police—Contents of the F.I.R. did not divulge as to what was the relationship between the accused and the main accused, who was caught by the police during the raid—Police constable had not alleged in specific terms whether his motorcycle had been stolen or snatched by the accused—Accused and co-accused had been shown to have attacked the police party with different weapons but there was no evidence to believe that any of the members of the police party had received even the slightest scratch—Story contained in the F.I.R. looked bizarre and preposterous—Fact that a heavy contingent of police showed little courage in coping with the situation and apparently wilted under the pressure of a disorderly attack of the accused and co-accused painted a blurry picture of the prosecution case, which brightened the probability of invocation of S.497(2), Cr.P.C, in favour of the accused—No reason existed to believe that the case of the accused was covered by prohibitory clause of S.497(1), Cr.P.C—Bail application of the accused was accepted and he was admitted to bail.

2012  MLD  770   LAHORE-HIGH-COURT-LAHORE

Mst. NASREEN BIBI VS State

1. 9(c)—Appreciation of evidence—Police witnesses, credibility of—Police officials are as good witnesses as public witnesses until and unless the defence establishes some specific enmity or malice against them.

2012  MLD  770   LAHORE-HIGH-COURT-LAHORE

Mst. NASREEN BIBI VS State

S.9(c)—Appreciation of evidence—Delay in sending the incriminating articles to the concerned quarters for expert opinion cannot be treated fatal in the absence of objection regarding the same having been tampered with.

2012  MLD  770   LAHORE-HIGH-COURT-LAHORE

Mst. NASREEN BIBI VS State

Ss. 9(c), 21 & 2(t), (v), (w)—Appreciation of evidence—Assistant Sub-Inspector of Police was fully competent, in given circumstances, to conduct raid and seize the narcotics—Section 21 of the Control of Narcotic Substances Act, 1997, being directory in nature, any violation thereof was not fatal to prosecution case—Requirement to obtain search warrant could be dispensed with where a quick action was required to be taken—Delay in sending the recovered narcotic substance to Chemical Examiner for analysis could not be fatal in the absence of an objection regarding the same having been tampered  with—Poppy straw and poppy heads included all parts of the poppy plant—“Phakki” (post) recovered from the accused was a narcotic substance as defined in Ss.2(t), 2(v) & 2(w) of the Control of Narcotic Substances Act, 1997—Law did not require sending the whole narcotic substance to Chemical Examiner, only a small quantity thereof would be enough to prove that the entire recovered material was contraband—Both the recovery witnesses were consistent on the point of time, date and place of raid, search, recovery of “post” from the accused, preparation of sample and its dispatch to the Office of Chemical Examiner—Investigating Officer had clarified that persons present at the place of recovery had refused to become witnesses in the case—Police Officials were as good witnesses as public witnesses, until and unless defence would establish some specific  enmity or malice against them—Non-association of any witness from public, therefore, was not fatal to prosecution case—Report of Chemical Examiner was positive—Conviction and sentence of accused were upheld in circumstances.

2012  MLD  550   LAHORE-HIGH-COURT-LAHORE

KASHIF alias SHAHID alias CHACHI VS SPECIAL JUDGE CNS, FAISALABAD

S.540—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing narcotics—Summoning of some  persons as court  witnesses—Application filed by accused after closure of prosecution evidence for summoning certain persons as court witnesses had been dismissed by Trial Court vide impugned order—Court, after being satisfied with the prosecution evidence that the same was sufficient to arrive at a just conclusion was under no compulsion for summoning anyother witnesses—Trial court, however, in addition to the evidence already recorded had ordered to summon the Medical Officer and the Ward Incharge considering them as necessary witnesses—Other nine persons, were left on the option of accused to produce them as defence witnesses by the court—Impugned order did not suffer from any infirmity whatsoever—Accused, if so advised, could avail the opportunity of producing the aforesaid persons in defence to supplement defence version—Appeal was dismissed accordingly.

2012  PLD  527   KARACHI-HIGH-COURT-SINDH

SHAFI MUHAMMAD BHANGWAR VS State

1. 561-A—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Penal Code (XLV of 1860), Ss. 193, 194 & 195—Constitution of Pakistan, Art. 10A—Possession of narcotic, false evidence, giving or fabricating false evidence with intent to procure conviction—Quashing of proceedings—Trial Court giving directions to register F.I.R. against police officials (complainant and prosecution witnesses) after acquitting a nominated accused in a narcotics case—Legality—Trial Court found that police officials (applicants) had foisted the narcotic upon the acquitted accused, lodged a false  F.I.R. against him and gave false evidence in court—Contention of police officials was that while issuing directions for lodgment of F.I.R., Trial Court had not issued a show cause notice to them, therefore, they had been condemned unheard—Validity—No provision existed in the Control of Narcotic Substances Act, 1997 which empowered the court to register a case against complainant and prosecution witnesses if the prosecution failed to prove the charge against the accused—Sections 193, 194 and 195, P.P.C. provided penal clauses regarding false evidence in judicial proceedings, but concerned court had to justify circumstances which warranted legal action against  complainant and witnesses regarding false evidence or fabricating false evidence—Show cause notice was required under the law before initiating criminal proceedings and same would meet the spirit of “fair trial” as envisaged under Art. 10A of the Constitution—Police official had not been issued any show cause notice regarding false evidence or any negligence committed by them, therefore, they were condemned unheard and course adopted by the Trial Court was in violation of the maxim “audi alteram partem”—Trial Court had not assigned any reasons in respect of its direction for  registration of F.I.R. against police officials regarding false evidence during the trial—Sufficient material was not available against police officials to make out a prima facie case to arraign them—Impugned judgment was modified to the extent of directions of registration of case against police official and consequently proceedings against them were quashed.

2012  YLR  2901   KARACHI-HIGH-COURT-SINDH

ALLAH DINO UMRANI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9 (b) & 9(c)–Possession of narcotic—Bail, grant of.—Border-line case–Benefit to be given to accused—Scope—Accused was arrested by the police on spy information and allegedly 1100 grams of Maras was recovered from his ,possession—Investigation of case was complete–Prosecution witnesses were police officials, therefore, there was no question of tampering with prosecution evidence—Accused had alleged enmity with the police—No private person was made mashir—Alleged recovery of 1100 grams was a border line case between S.9(b) and (c) of Control of Narcotic Substances Act, 1997, benefit of which could be extended to the accused even at bait stage—Delay in sending samples to Chemical Examiner was admitted—Accused was admitted to bail, in circumstances.

2012  YLR  2797   KARACHI-HIGH-COURT-SINDH

MUHAMMAD NAZEER VS State

Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25—Possession of narcotic—Bail, refusal of—Implication on basis of police enmity and political reasons not proved—Non-association of private witnesses in narcotic cases—Scope—Accused and co-accused were allegedly arrested with 4.5 kgs and 5.5kgs of charas (narcotic) respectively—Contentions of accused and co-accused that they had been implicated in the case due to police enmity with their community and due to political reasons; that police had prior information of the incident but did not associate any private witness to act as mashir and therefore committed violation of S. 22 of Control of Narcotic Substances Act, 1997 and S.103, Cr.P.C—Validity—Accused and co-accused had failed to submit any F.I.R., judgment or documentary proof to establish that they had been involved in the present case due to enmity of the police with their community or due to political reasons—Accused and co-accused were arrested in broad-daylight and their names were mentioned in the F.I.R. and they failed to explain how such huge quantity of narcotic could be foisted upon them by the police—Section 103, Cr.P.C had been excluded by S. 25 of Control of Narcotic Substances Act, 1997, because of which it was not necessary in narcotic cases to associate private persons in the recovery proceedings—Offences alleged fell within the prohibitory clauses of S.497, Cr.P.C—Bail applications of accused and co-accused were dismissed, in circumstances.

2012  YLR  2797   KARACHI-HIGH-COURT-SINDH

MUHAMMAD NAZEER VS State

Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25—Possession of narcotic—Bail—Evidence of police officials—Reliance—Scope—Evidence of police officials was as good as that of a private person unless there existed enmity with the police.

2012  YLR  2689   KARACHI-HIGH-COURT-SINDH

ZAHID HUSSAIN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9 (c)—Possession of narcotic—Bail, refusal of—Accused, who was driving a rickshaw, was allegedly found in possession of three kilograms of charas—Contentions of accused were that out of the total allegedly recovered charas, two  kilograms were recovered from the rickshaw and only one kilogram charas was  recovered  from  his  exclusive  personal possession and as such it was a border-line case; that allegedly recovered charas was foisted upon him, and that all prosecution witnesses were police officials and interested witnesses—Validity—Involvement of accused in the alleged offence was prima facie established from the perusal of F.I.R., statements of prosecution witnesses and positive chemical report—Accused could not point put any mala fide or enmity of police to foist charas upon him—Contention of accused that only one  kilogram was recovered from his exclusive possession could not be deeply appreciated at bail stage—Evidence of police officials could not be discarded at bail stage—Accused was refused bail, in circumstances.

2012  YLR  2684   KARACHI-HIGH-COURT-SINDH

TARIQUE alias TARI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possession of narcotic—Bail, grant of—Accused arrested on basis of prior information and allegedly found in possession of 1010 grams of charas (narcotic)—Arrest made on basis of prior information in a thickly populated area but no private persons associated to act as mashir of recovery—Police taking out only 10 grams from one slab (patti) of the narcotic for chemical examination but not taking samples from the other slab—Said samples were sent for analysis after a delay of six days—Accused, in circumstances, had made out a case for grant of bail and was accord-ingly granted bail.

2012  YLR  2596   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ABDULLAH VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c)—Possessing and trafficking narcotics—Bail, grant of—Further inquiry—Deeper appreciation of the record at bail stage could not be gone into, but only a tentative assessment was to be made just to find out as to whether accused was connected with the commission of offence or not—Delay of seventeen days in lodging of F.I.R.—Mashirnama of arrest and recovery were not prepared at the spot—Samples were sent after ten days of the alleged recovery—Prima facie, the provisions of S.21 of Control of Narcotic Substances Act, 1997 had been violated—No private witness was associated at the time of alleged recovery or arrest—Though private persons were not required to witness the recovery of narcotic substance as provided under Control of Narcotic Substances Act, 1997, but the place of recovery and the time of recovery had to be kept in view to prevent false implication of innocent people—Case requiring further inquiry in terms of subsection (2) of S.497, Cr.P.C., accused was admitted to bail, in circumstances.

2012  YLR  2298   KARACHI-HIGH-COURT-SINDH

KHAIR MUHAMMAD alias KHAIRO VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, grant of—-Benefit of doubt—F.I.R. showed that two Kgs. of Charas was recovered, whereas report of the Chemical Examiner had shown that packet contained only 1700 grams of Charas—Such discrepancy in the substance of the F.I.R. and Chemical Examiner’s report had extended benefit of doubt to accused—Delay of four days in forwarding entire packet containing Charas to the laboratory for chemical examination, was fatal to the prosecution and benefit thereof would be ‘extended to accused—Accused was admitted to bail, in circumstances.

2012  YLR  1630   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ARSHAD HUSSAIN alias GUL KHAN VS State

Ss. 9(c) & 48—Possession  of  narcotics—Appreciation of evidence—-Reduction in sentence—Trial court had convicted the accused (appellant) under S.9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to seven years’ imprisonment and imposed a fine of Rs. 100,000—Contention of accused was that his sentence be reduced to that already undergone by him since quantity of narcotic recovered from him was less than 1100 grams and that he had no previous criminal record and was the only bread winner  of his  family—Validity—Substantial part of sentence had already been undergone by the accused—Prosecution had contended that F.I.Rs. and criminal cases were pending against the accused but neither anything was brought on record to substantiate the same nor F.I.R. or impugned judgment of Trial Court reflected such fact—Sentence of accused was reduced from seven years to the one already undergone by him (four years, nine months and two days), and resultantly directions were given to release him—Fine imposed by Trial Court was not changed.

2012  YLR  1403   KARACHI-HIGH-COURT-SINDH

SHAH MEHMOOD alias SHAHU VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(b)—Possession of narcotic—Bail, grant of—Further inquiry—Contents of F.I.R. revealed that allegedly recovered narcotic had been shown to be approximately one and a half kilograms—Prosecution had confirmed that alleged recovered substance was never weighed at the time of the preparation of the Mashirnama—Delay of eleven days in sending samples for analysis had not been explained—Question as to whether the quantity of 500 grams marginally exceeded the upper limit of 1000 grams was yet to be determined—Case of accused was a border line case between Ss.9(b) & 9(c) of Control of Narcotic Substances Act, 1997 and required further inquiry in terms of S.497(2), Cr.P.C—Accused was admitted to bail, in circumstances.

2012  YLR  1372   KARACHI-HIGH-COURT-SINDH

SAEED KHAN VS State

Ss. 9(c) & 29—Possessing and trafficking the narcotic—Appreciation of evidence—Sentence, reduction in—Two hundred and forty  packets of charas, each weighing one Kg of charas were recovered from the secret cavities of truck in question—Said packets were then put in plastic bags in such a way that there were forty packets in each plastic bag; and from each plastic bag, one packet was separated and sealed and sent for chemical examination—Six Kgs of charas was sent for examination—No evidence whatsoever was available that the remaining quantity was also charas—Burden of proof, in circumstances, was on the prosecution—Evidence produced thus showed that prosecution could prove six Kgs. of charas and nothing more—No discrepancy was found in the number of samples received or the weight—Section 29 of Control of Narcotic Substances Act, 1997, created presumption, which presumption could be rebutted by satisfactorily explaining it away—No such explanation was given by accused, the driver, as to whom did the vehicle in question belong; and how did he come about it—Quantity proved to have been recovered from accused being six Kgs. with additional mitigating factor regarding existence of secret cavity, ends of justice would be served if while conviction of accused was maintained, the punishment was modified from life to imprisonment for eight years—Sentence  of fine, was maintained and benefit of S.382-B, Cr.P.C. was also given to accused—Prosecution had failed to prove that co-accused was in any way in possession, actual or constructive of the narcotic substance or had any link with the vehicle—Co-accused was acquitted of the charge, and was ordered to be released, in circumstances.

2012  YLR  1365   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AZAM VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997) S.9(c)—Possessing and trafficking narcotics—Bail, grant of—Quantity of narcotic recovered from accused was allegedly 1100 grams, which was border line quantity—Narcotic was recovered from accused while he was walking on the road and there was no evidence that he was either buying or selling the narcotic and police reached him just by chance—-Bail application of accused was allowed in circumstances and he was released on bail.

2012  YLR  1316   KARACHI-HIGH-COURT-SINDH

BACHA MIR VS State

Ss. 6, 8, 9(c) & 25—Possessing and trafficking of narcotics—Appreciation of evidence—Sentence, reduction in—Plea of counsel for accused was that no private Mashir or passenger from the Bus in question was associated or made witness—Provisions of S.25 of Control of Narcotic Substances Act, 1997 had clearly provided that for the purposes of search and arrest in the narcotic cases, the provisions of S.103, Cr.P.C. was not applicable—Even otherwise, Police employees were the competent witnesses like any other independent witness; and their testimony could not be discarded merely on the ground that they were Police employees—Statements of prosecution witnesses remained constant on all material particulars, despite lengthy cross-examination to which they were subjected—Nothing came out from the defence witness which might help accused—Accused was driver of the bus in question, while co-accused was its cleaner and charas was also recovered from the secret cavities of the bus—No doubt existed regarding the conscious possession and knowledge of contraband in the case—According to prosecution story, 110 Kg slabs of one Kg, were recovered from the secret cavities, and each slab of one Kg, was separated from each bag for sending to the Chemical Examiner, which had shown that only six Kg charas was sent for chemical examination—Report of Chemical Examiner, though was positive, but according to description of articles contained in parcel, six printed plastic Pani Packets, each containing one Kg black brown colour slab wrapped in plastic Pani was sent—Undoubtedly only six slabs of charas of one Kg each out of 110 slabs were sent for chemical examination and it was not ascertained that recovery of remaining slabs were of charas or some other commodity—Conviction of accused did not call for any interference, but nothing was brought on record by the prosecution that accused were previously convicted or found previously involved in any narcotic cases—Life imprisonment to both the accused was reduced to 8 years, without any modification into quantum of fine.

2012  YLR  1251   KARACHI-HIGH-COURT-SINDH

PANDHI KHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25—Pakistan Arms Ordinance (XX of 1965), S.13(d)—Possession of narcotic, possession of illegal weapons—Bail, refusal of—Report of chemical examiner was positive—Contention of accused that police officials tried to snatch his foreign made weapons and foisted upon him 2 kgs of narcotic, which was lying in the police station, was not believable—Accused had contended that he held licences for  the weapons recovered from him, but failed to mention that any such licence was shown by him to the police—Section 25 of the Control of Narcotic Substances, 1997, had excluded the applicability of S.103,Cr.P.C, because of which evidence of police officials was as good as the evidence of any other independent witness—Reasonable grounds existed for believing that accused was connected with the commission of the offence, as a result of which his bail application was dismissed.

2012  YLR  1237   KARACHI-HIGH-COURT-SINDH

NAEEM AHMED VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession and trafficking of narcotic—Bail, grant of—Further inquiry—Allegation against accused (customs official) of trying to smuggle narcotic through airport in connivance with co-accused passenger—Co-accused was intercepted at the departure lounge of the airport, and two mashirnamas were prepared with a gap of nine hours between them, but name of accused had not been mentioned in either of these  mashirnamas—Name of accused was mentioned for the first time in the F.I.R., wherein accused had been implicated on the statement of the co-accused—No recovery was effected from the accused and prosecution had admitted that there was no material to create any relationship between the accused and his co-accused—No allegation was made regarding the accused helping the co-accused during his passage through the departure lounge of the airport—False implication of accused could not be ruled out, which required further inquiry in terms of S.497(2), Cr.P.C—Accused was admitted to bail.

2012  YLR  1206   KARACHI-HIGH-COURT-SINDH

Syed ALI QASIM GILLANI VS State

214. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c)/15/22—Bail, grant of—Further inquiry—Raw heroin weighing 214.5 Kilograms had been recovered from a consignment of cement exported in five containers—Deeper appreciation of record was not permissible at bail stage and prima facie connection of accused with the commission of offence had to be found through tentative assessment—No direct allegation was made against the accused in the F.I.R., statements recorded under S.161, Cr.P.C. or the challan—No recovery whatsoever had been made from the accused—Heroin, admittedly, was not recovered from the three containers exported through the accused—Report of Chemical Examiner was not available with the prosecution to confirm that the recovered substance was heroin—No seizure report had been brought on record—Prosecution had failed to successfully explain the delay of three months in lodging the F.I.R.—Out of nine accused persons five accused were absconders and three accused had been admitted to bail by Trial Court—Question as to whether the present accused had connived with other co-accused in exporting heroin along with cement to other country required evidence—Case against accused required further inquiry as contemplated under S.497(2), Cr.P.C.—Accused was admitted to bail in circum-stances.

2012  YLR  1138   KARACHI-HIGH-COURT-SINDH

LIAQAT VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic—Bail—Sending a sample of one gram out of the recovered quantity of narcotic  for  chemical  analysis—Effect—Sending a sample of one gram from the quantity of allegedly recovered narcotic was not fatal to the prosecution case and it was to be established at trial whether such quantity of narcotic had been taken from the recovered quantity and whether it was sufficient for proper analysis.

2012  YLR  1138   KARACHI-HIGH-COURT-SINDH

LIAQAT VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic—Bail, refusal of—Chemical report was in positive—Contention of accused that there was violation of S.103, Cr.P.C, was not tenable as in terms of Ss. 20, 21 and 25, Control of Narcotic Substances Act, 1997, S.103, Cr.P.C was not applicable in narcotics cases—Contention of accused that only 10 grams out of the 1050 grams allegedly recovered had been sent for chemical analysis was not of much significance as it was to be established at trial whether such quantity of narcotic had been taken from the recovered quantity and whether it was sufficient for proper analysis—Two previous cases of similar nature were pending against the accused which showed that he was a chronic offender—Accused had been granted bail in both the said previous cases but had abused concession of bail by being found in alleged possession of narcotic again which resulted in the present F.I.R.—Bail application of accused was dismissed, in circumstances.

2012  YLR  1042   KARACHI-HIGH-COURT-SINDH

SHERAZAD PATHAN VS State

1. 9(c)—Trafficking of narcotics—Appreciation of evidence—Benefit of doubt—Prosecution case was that Charas weighing 200 Kgs contained in 160 packets was recovered from the secret cavities of the truck driven by the accused—Charas was stated to have been wrapped in plastic pannes—No panne had been mentioned either in the F.I.R. or in the evidence of recovery witnesses—Quantity of charas taken out for sample was different from the quantity received in the office of Chemical Examiner—Weight of the recovered charas mentioned in the F.I.R. did not tally with the weight disclosed in recovery evidence—Weighing process had revealed difference in quantity of charas than the actual weight of the same alleged by the prosecution—Case of prosecution, thus, was replete with doubts and benefit of each doubt had to be given to accused—Accused was acquitted accordingly.

2012  YLR  768   KARACHI-HIGH-COURT-SINDH

MUHAMMAD HUSSAIN VS State

Ss.497 & 103—Control of Narcotic Sub-stances Act (XXV of 1997), S.9(b) & (c)—Possessing  and  trafficking  narcotics–Bail, grant of—Provisions of S.103, Cr.P.C.  were  not  applicable,  stricto  sensu to offences falling within provisions of the Control of Narcotic Substances Act, 1997—Accused alleging harassment at the hands of Police, filed constitutional petition which was pending, thereafter accused filed an application under S.491, Cr.P.C., which was also pending—Such a situation  had clearly shown existence of a grudge if not enmity on the part of the Police—Person who had been litigating against the Police, could not be ruled out to be a natural target of the Police for roping in on whatever pretext they could—F.I.R. had stated that Police party went patrolling in a private car and  from where the said private car came, was not stated  in the F.I.R. and prosecution  was unable  to make any statement in that regard, which had strengthened the doubt—Accused was admitted to bail, in circumstances.

2012  YLR  575   KARACHI-HIGH-COURT-SINDH

NAVEED AHMAD VS State

1. 9(c)—Possession and trafficking of narcotics—Appreciation of evidence—One of the prosecution witnesses had stated that two Kalashnikovs and 25 maunds of charas were recovered from the accused persons who were wearing army uniforms, travelling in wagon bearing Army and Rangers number—Other prosecution witness had corroborated the evidence of first prosecution witness—Recoveries effected from the possession of accused persons, were corroborative evidence of the complainant and prosecution witnesses—No major discrepancy or contradictions were found in the prosecution evidence—Chemical Examiner’s report was in positive—Police officials, could not foist huge quantity of charas weighing 25 maunds and two Kalashnikovs—Objection raised by counsel for accused persons that complainant was Investigating Officer and witness of the occurrence and recovery, had rendered the prosecution case doubtful, had no force—Section 25 of Control of Narcotic Substances Act, 1997, had specifically excluded the provisions S.103, Cr.P.C.—Non-association of members of the public in the recovery proceedings, was neither a requirement of law nor an absolute rule—Recovery and arrest of accused persons, was effected in odd hours of the night from the National Highway and no public witness could be available at such time—Where the defence had not produced any evidence to establish animosity against the prosecution witnesses, evidence of such Police Officials could not be brushed aside merely on the ground that they belonged to the Police Department—Lengthy cross-examination was conducted during the trial,  but nothing was found favourable to the accused persons—Contention of counsel for accused that the property, which was sent for chemical examination as shown in the memo of arrest and recovery was different from the property received by Chemical Examiner, on examination of Mushirnama of arrest and recovery and report of Chemical Examiner, could not be accepted—Twenty one Kgs. of charas, which was taken from the recovered charas from the possession of accused persons, was sent to the Chemical Examiner— Chemical Examiner’s report also revealed that 21 Kgs. of charas was received by him and the report was positive—Once the prosecution had prima facie established its  case, then under S.29 of Control of Narcotic Substances Act, 1997, the burden would shift on the accused to prove contrary to the plea of the prosecution—Prosecution had established that the persons who were found in possession of the narcotics had committed the offence while the defence had failed to discharge its burden in terms of S.29(d) of Control of Narcotic Substances Act, 1997—Appeal was dismissed.

2012  YLR  553   KARACHI-HIGH-COURT-SINDH

MUHAMMAD SARFRAZ VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing narcotics—Bail, grant of—Further inquiry—Charas weighing five Kgs. in shape of rods, was allegedly recovered from the possession of accused—Memo. was prepared as to the arrest of accused and recovery of the recovered material on the spot before the official witnesses—From secured narcotic substance consisting of  five hundred pieces, a sample of one gram each was parcelled and sealed separately for chemical examination—Case appeared to be one of further inquiry on the ground that no public witness was associated for arrest and recovery etc. and to the memo. in question—Said memo. was silent as to the number of rods and pieces secured as sample—Expert report had shown that one envelope parcel was received as stuffed with multiple pieces of charas weighing five hundred grams as net weight—Thirty grams out of the said five hundred grams appeared to have been consumed in the analysis whereas the remaining was kept for being dispatched to or collected from the office of Chemical Examiner—No record was available as to whether the Police had collected the same or not; or whether such material with its wrapper was in existence or not—F.I.R. and the memo. in question both carried reference of departure entry, but not that of arrival entry—Accused was admitted to bail, in circumstances.

2012  YLR  539   KARACHI-HIGH-COURT-SINDH

MUHAMMAD HASSAN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Possessing of narcotics—Bail, grant of—Further inquiry—Accused had been able to make out a case for grant of bail as prosecution story on the face of it could not be held as free from doubt and it required further inquiry—Accused was admitted to bail, in circumstances.

2012  YLR  503   KARACHI-HIGH-COURT-SINDH

STATE/ANTI-NARCOTICS FORCE through Deputy Director (Law) VS ALLAH BUX

S.9(c)—Criminal Procedure Code (V of 1898), S. 417(2-A)—Possessing and trafficking narcotics—Appeal against acquittal—Prosecution had not been able to prove its case—Even if a solitary doubt was created as to the guilt of accused, then he could not be convicted—Special Judge had rightly observed that prosecution case was full of doubts—Order of acquittal of accused, passed by Special Judge, was unexceptionable and no interference was called for by High Court.

2012  YLR  423   KARACHI-HIGH-COURT-SINDH

NAZEER VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking narcotics—Bail, grant of—Further inquiry—Names of the Mashirs did not appear in the F.I.R.—As per prosecution case four pieces of charras were allegedly recovered from accused while prosecution witnesses stated that sample was not drawn from each of the piece of charras allegedly recovered from  the  accused—Presence  of any prosecution witness was not shown in the F.I.R.—Case, in circumstances, was not free from doubt and false implication of accused, could not be ruled out in the circumstances of the case—Case requiring further inquiry in terms of subsection (2) of S.497, Cr.P.C., accused was admitted to bail, in circumstances.

2012  YLR  413   KARACHI-HIGH-COURT-SINDH

SAIFUL HAQ VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c) & 23—Possessing and trafficking of narcotics—Bail, refusal of—Bus in question after off loading passengers was present and two persons were in the bus, one was sitting at the driving seat and the other by the side of the driver—Accused was sitting next to the driving seat—Search of the bus led to a secret cavity from which four bundles were recovered; each bundle was found to contain 100 rods of charas, each weighing 1100 grams and in all 44 Kgs of charas was recovered—When the Police party raided, the bus, passengers had already been off loaded and only two persons were sitting in the bus, one driver and the other sitting next to the driver—All the passengers having left the bus, the question would be as to why the accused was still sitting in the bus—Prima facie, there was  material  to  connect  the  accused to the offence alleged against  him—Bail was refused, in circumstances.

2012  YLR  314   KARACHI-HIGH-COURT-SINDH

NISAR ALI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9—Possessing narcotics—Bail, grant of—Accused was driver of the rickshaw wherein three persons were sitting on the back seat of the driver—Two of them escaped while one was apprehended—Alleged narcotics was recovered by the Police lying on the seat of the rickshaw which could be the property of accused who made their escape; or accused who was apprehended by the Police, but accused being rickshaw driver had no concern with the alleged recovered narcotics substance—Driver was unaware about narcotic substance lying in the bag which was kept by the passenger’s seat in the rickshaw and it was yet to be determined by the Trial Court after recording the evidence, whether accused had the knowledge about the narcotics substance lying on the back seat of the rickshaw, with passengers or not—Punishment of alleged offence could be of life imprisonment or death sentence, but it was yet to be determined after completing proceedings—Co-accused had been granted bail and case of accused was on better footing than co-accused—Accused was also entitled for same concession on the principle of rule of consistency—Accused (Rikshaw Driver) having no concern with the alleged recovered property, he was granted bail, in circumstances.

2012  YLR  251   KARACHI-HIGH-COURT-SINDH

NIAMATULLAH KHAN VS THE STATE through Anti-Narcotics Force, Sindh

S.9(c)—Criminal Procedure Code (V of 1898), S. 417(2-A)—Appeal against acquittal—Possessing and trafficking of narcotics—Both prosecution witnesses had admitted that acquitted accused persons had no role to play in respect of alleged contraband items—Nothing objectionable was recovered from their physical possession—Neither their names were mentioned by the spy, nor the high officials of Anti-narcotic Force, had given any information in that regard to the raiding party about the involvement of those acquitted accused in drug trafficking—No criminal record of said accused persons was available with the authorities—No tangible and confidence inspiring evidence was available with the prosecution to convict accused persons—Trial Court was fully justified in acquitting said accused, in circumstances—In absence of any illegality in the order passed by the Trial Court, appeal against acquittal was dismissed, in circumstances.

2012  YLR  251   KARACHI-HIGH-COURT-SINDH

NIAMATULLAH KHAN VS THE STATE through Anti-Narcotics Force, Sindh

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Benefit of doubt—Case of the prosecution was not free from contradiction—Major contradictions were noticed in the deposition of prosecution witnesses regarding the place of incident, and as to members of raiding party—No explanation was available with the prosecution as to why the case property was unsealed in presence of Special Public Prosecutor and not in the court—Case property having been produced in unsealed condition, same could not be safely relied upon—Marked distinction was found in the signature of accused available on the rent-a-car agreement and the one on his CNIC, which aspect had also remained unanswered—Contradiction in the deposition of the prosecution witnesses with regard to weighing of contraband items had created doubt about the weight of the items alleged to have been recovered from the accused—No previous record of conviction against accused persons was available—Accused had been mentioned as an international narcotics peddler and was arrested on the pointation of the spy who had identified him to be an international drug smuggler, but both the prosecution witnesses had admitted that they had no record of accused being involved in any charge prior to the present event—Labelling accused as an international drugs peddler without any cogent material or evidence, appeared to be uncalled for on the part of the prosecution—Samples were not drawn from each packet and receipt of Maalkhana was also not produced by the prosecution—To bring home the case of prosecution without any tinge of doubt, prosecution had to prove its case beyond all reasonable doubts—Whenever any doubt was created, accused was liable to be acquitted, not as a matter of grace, but as a matter of right—Such aspect appeared to be lacking in the case—No description about weight of narcotics was mentioned in the mashirnama—No contraband item was recovered from physical search of accused—Contra-dictions/irregularities in the case were enough to create doubt with regard to involvement of accused in the crime—By giving the benefit of doubt, accused was acquitted of the charge—Order passed by the Trial Court, was set aside.

2012  PCrLJ  1927   KARACHI-HIGH-COURT-SINDH

HIDAYATULLAH VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Benefit of doubt—Contradictions were found in the statements of prosecution witnesses, with regard to ocular account, recovery and weight of allegedly recovered narcotics—Both the witnesses were Excise Department Personnel and complainant was the Investigating Officer— Story of  the  prosecution  was  pock  marked by  a  doubt— Accused  was  acquitted  by  granting  him  benefit  of doubt  and  he  was  ordered  to   be   released,   in  circumstances.

2012  PCrLJ  1524   KARACHI-HIGH-COURT-SINDH

IQBAL KHAN VS State

Ss. 6 & 9(c)—Possession and trafficking of narcotics—Appreciation of evidence—Benefit of doubt—Allegation against the accused was that he was the guard (chowkidar) of a godown from which 5000 kilograms of charas was recovered which had been locked in a container—Contentions of the accused were that he was only the guard (chowkidar) of the godown and nothing was brought on evidence to show that he was aware that the narcotic substance was hidden in the container, and that knowledge with regard to the narcotic substance could not be attributed to the accused—Validity—Persons nominated in the F.I.R. for attempting to smuggle the narcotics had not been arrested—Neither anything was recovered from the accused who was a guard (chowkidar) of the godown nor on his pointation the  narcotic was recovered from the hidden cavities of the container—Perusal of record revealed that no investigation was conducted to find out the smugglers or to connect the accused with the narcotic substance—Both the witnesses had deposed that the accused was a guard (chowkidar) of the godown—Benefit of doubt, in circumstances, had to be extended to the accused—Appeal was allowed, impugned judgment was set aside and directions were given to release the accused if not required in any other case.

2012  PCrLJ  897   KARACHI-HIGH-COURT-SINDH

SHAMAAL KHAN SHAH VS State

1. 9(c)—Juvenile Justice System Ordinance (XXII of 2000), Ss.4, 5 & 7—Possessing narcotics—Trial of juvenile accused—Age of juvenile, determination of—Accused who claimed that he was child at the time of occurrence, filed application that his trial be separated from trial of other accused persons—Application was dismissed by the Trial Court—Validity—Medical Board duly constituted gave opinion that age of accused was between 18-19 years at the time of his medical examination—Assuming that the age of accused had been accurately determined by the Medical Board the alleged incident had taken place 3 months and 16 days prior to date of said medical examination—On the date when alleged offence took place, accused had been opined by Medical Board  to  be  between  the  age  of  18  years, 8 months and 14 days—Law was to be interpreted in favour of accused as same was for the protection of accused and such protection could only be afforded to accused, if he was given the benefit by accepting lower of the age determined by the Medical Board—Margin of one year in the opinion of Medical Board, could not be overruled—Accused had to be given the benefit of the law—Application was allowed.

2012  PCrLJ  869   KARACHI-HIGH-COURT-SINDH

Mst. NASEEBAN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, grant of—Further inquiry—Female accused with suckling baby—Welfare of minor—Borderline case in terms of weight of narcotic—Accused was allegedly found in possession of 1100 grams of charas—Report of jail authorities confirmed that accused was confined in central prison along with her suckling baby—Welfare of minor was incompatible with jail life and instead of detaining the innocent infant in jail for the crime allegedly committed by her mother (accused), it was in the interest of justice as well as welfare of minor, if mother was released from jail on bail—Narcotic recovered from accused weighed 1100 grams, only 100 grams above the upper limit of S.9(b) of Control of Narcotic Substances Act, 1997, which made  it  a  borderline  case  and  called  for  further inquiry  into  accused’s  guilt  as  it would  be  decided  at  trial whether case came within purview and scope of S.9(b) or 9(c) of Control of Narcotic Substances Act, 1997—Accused was admitted to bail accordingly.

2012  PCrLJ  595   KARACHI-HIGH-COURT-SINDH

SALEH alias SALOO VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 5I—Possessing narcotics—Bail, grant of—Accused though had been nominated in the F.I.R. on the basis of alleged spy information, yet nothing was recovered from him on the spot, as he had escaped from the spot—Bag containing “Charas” was found lying on the spot—F.I.R. did not show as to how police had identified the accused with parentage—Case against accused needed further probe—Court in appropriate cases had the power to grant bail despite the embargo under S.51 of the Control of Narcotic Substances Act, 1997—Bar contained under the said section was attracted only when reasonable grounds existed for believing the accused being guilty of the alleged offence—Quantity of the contraband material could be given importance only when the same was lined with the accused by cogent evidence—No reasonable grounds were available to believe that accused was involved in the alleged crime—Accused was admitted to bail in circumstances.

2012  PCrLJ  595   KARACHI-HIGH-COURT-SINDH

SALEH alias SALOO VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.51 & 9(c)—Bail, grant of—Section 51 of the Control of Narcotic Substances Act, 1997, is no bar for grant of bail in appropriate cases—Courts in such cases have the power to grant bail despite the embargo contained in S.51 of the said Act.

2012  PCrLJ  595   KARACHI-HIGH-COURT-SINDH

SALEH alias SALOO VS State

1. 9—Possessing narcotics—Punishment—Quantity of recovered narcotics, consideration of—Quantity of the contraband and material can be given importance only when the same is linked with the accused by cogent evidence.

2012  PCrLJ  595   KARACHI-HIGH-COURT-SINDH

SALEH alias SALOO VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.51 & 9(c)—Bail—Applicability of S.51 of Control of Narcotic Substances Act, 1997—Scope—Section 51 of the Control of Narcotic Substances Act, 1997, is attracted only when reasonable grounds exist to believe that accused is guilty of the alleged offence.

2012  PCrLJ  402   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ISHAQUE VS THE STATE/ANF PS HYDERABAD

Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 25 & 51—Possessing and trafficking narcotics—Bail, refusal of—1100 grams of charas was recovered from one of co-accused, 500 grams each from other two co-accused, while two kilograms of charas was recovered from the accused—Case of co-accused being border line case, they were granted bail—Accused from whom two kilograms of charas was recovered, being not similarly placed, rule of consistency could not be applied to his case—Arrest of accused on the spot along with recovered charas, prima facie, suggested that he was involved with the commission of offence, for which the sentence prescribed under S.9(c) of Control of Narcotic Substances Act, 1997 was death or imprisonment for life—Accused, prima facie, was not entitled to bail—Offence of accused not only fell under prohibitory clause of S.497, Cr.P.C., but also attracted the bar contained in S.51(1) of Control of Narcotic Substances Act, 1997—Objection of counsel for accused regarding non-compliance of S.103, Cr.P.C. was misconceived as by virtue of S.25 of Control of Narcotic Substances Act, 1997, non-citing of a private witness was not fatal to the prosecution case as S.103, Cr.P.C.  had  been  specifically  excluded  from  its  application,  in cases  of  narcotics—No  material  was  available  on  record  to  suggest  that  accused  was  facing  ailment,  which  could  not  be cured  in  the prison; or there was any danger to his life if such medical  treatment was not provided to him outside the prison—Counsel for the accused had argued that accused being T.B patient he could be enlarged on bail—No definite finding could be recorded on such aspect of the case, at bail stage—Accused having failed to make out a case for grant of bail, his bail application was dismissed, in circumstances.

2012  PCrLJ  235   KARACHI-HIGH-COURT-SINDH

Mir IFTIKHAR AHMED VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8 &  9(c)—Customs Act (IV of 1969), Ss. 155-A, 155-B, 155-D, 79 & 80—Possessing and trafficking of narcotics—Bail, grant of—Further inquiry—Benefit of doubt—Name of accused and his firm did not appear in the F.I.R.—Applicant and his firm was not the registered importers within the meaning of Ss.155-A, 155-B and 155-D of the Customs Act, 1969; nor accused and his firm were on active taxpayers’ list of Federal Board of Revenue and was not entitled to file/lodge any Bill of Entry—No import manifest had been filed to show the name of accused as the importer of the container—No Bill of Entry or any other document within the meaning of Ss.79 & 80 of the Customs Act, 1969 was filed by accused or his firm—Shipping documents as well as clearing and forwarding documents of the consignment which arrived at the Port, did not contain the name of accused or his firm with regard to the involvement in respect of the alleged import—Booking confirmation documents, did not contain the name of accused—Alleged cocaine was not recovered from the physical possession of accused, nor any overt or covert attempt was made to take possession of said container—Original Bill of Lading was not available to show the ownership of the container nor any other import documents, were on record which would prima facie show that accused or his firm was the importer or had knowledge of alleged goods to establish nexus with accused in the commission of the offence—Certain anomalies in prosecution case required further investigation—No credible or tangible evidence was available against accused and his firm to connect him with the commission of alleged offence—Deeper appreciation of evidence was not warranted or desirable at bail stage and the benefit of doubt, even at bail stage should also go in favour of accused—Whenever  reasonable  doubt  would  arise  as  to  participation  of accused in the alleged offence, bail should not be withheld as punishment—No useful purpose would be served by keeping accused behind the bars since all material was with the prosecution and there was no likelihood of tampering of prosecution evidence by accused—Accused having made out a case of further inquiry within the meaning of subsection (2) of S.497, Cr.P.C., he was admitted to bail, in circumstances.

2012  PCrLJ  142   KARACHI-HIGH-COURT-SINDH

ASGHAR KHAN VS State

Ss. 6 & 9(c)—Juvenile Justice System Ordinance (XXII of 2000), S.11—Possessing narcotics—Appreciation of evidence—Release of accused on probation—Accused was child at the time when alleged crime  took  place;  he  was  found  in  a  room  where  narcotic substances were being packed—Ten packets of charas, each weighing 1.25 Kilograms, were recovered from the bag which the accused was packing—Accused was a menial worker and was hired by someone for packing the stuff—Trial record was absolutely silent as to who was the person who owned the narcotic substance or the house—Accused was in jail since 2004 and according to Jail Roll, accused who was ordered to undergo life imprisonment, had served period of 17 years and 6 days including remissions and a period of 9 years, 11 months and 24 days were still to go—Jail Superintendent had also stated that conduct of accused had been satisfactory all along—Accused being juvenile at the time of his arrest deserved leniency and benefit of S.11 of Juvenile Justice System Ordinance, 2000—Accused was directed to be released on probation to the custody of his guardian or other respectable person from the area, who would stand surety in the sum of Rs.5,00,000 to the satisfaction of the Nazir of High Court—Accused would be kept on probation for period of 5 years and would be duly bound to report to the Trial Court on first Monday of every month till expiry of the period of probation.

2012  PCrLJ  76   KARACHI-HIGH-COURT-SINDH

Sardar AMJAD ALI KHAN VS State

Ss. 249-A & 561-A—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Possessing and trafficking of narcotics—Order dismissing  application  for  acquittal— Application  for  quashing  of order—Application had been filed against the order passed by Special Judge in Special case, whereby he dismissed the application filed by the applicant under S.249-A, Cr.P.C.—In the present case entire evidence had been concluded and matter was pending only for recording of statement of accused under S.342, Cr.P.C.; at that stage it would not be appropriate by High Court to embark upon or to consider the evidence, when the matter was likely to be concluded soon by appropriate forum—Arguments or pleas raised in the application could easily be taken and argued before the Trial Court, whether any evidence was available against applicant or not—Said function was to be exercised by the Trial Court—Case was of 6000 Kgs Hashish which could not be ignored simply; and the case of prosecution could not be strangulated or stifled at that stage—Trial Court in the impugned order had provided gist of the evidence and names of the prosecution witnesses—All prosecution witnesses had been examined and matter was fixed for recording of statement of accused—No doubt, application under S.249-A, Cr.P.C., could be moved at any stage of the case and the court could acquit person, if it considered that the charge was groundless or that there was no probability of accused being convicted of any offence—Party could move for acquittal at any stage of proceedings; and no legal bar or requirement existed that application for acquittal could only be moved before the Trial Court after recording of evidence of witnesses—Criteria for exercising the powers by High Court under S.561-A, Cr.P.C., was that injustice complained of by the applicant must be clear, grave in nature and tangible and, if another remedy  was  available,  then  inherent  jurisdiction  was  not  to be invoked—Special or peculiar facts and circumstances of the case, could not warrant filing of application under S.249-A, Cr.P.C. at a stage when the entire prosecution evidence had been recorded and the case was fixed for recording of statement of accused under S.342, Cr.P.C.

2012  MLD  1763   KARACHI-HIGH-COURT-SINDH

MUNAWAR ALI JATOI VS State

1. 9(b)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4 (2)—Possession of narcotic—Appreciation of evidence—Benefit of doubt—Case of spy information—-Non-association of private witnesses despite the fact that police had prior spy information and sufficient time to engage witnesses—Original arrival and departure entries of Roznamcha were not produced in court and only copies were provided—Delay of 9 days in sending samples to Chemical Examiner—Police official who had taken samples to Chemical Examiner was not examined by the prosecution—Safe custody of samples before being sent for analysis was not established—Contradictions in evidence of Station House Officer (S.H.O. ) and mashir (police official) with regard to place of recovery of narcotic and manner of arrest of accused—Accused had claimed enmity with police officials, therefore, some corroboration was required for the evidence given by police officials—Appeal was allowed, benefit of doubt was extended to accused and he was acquitted of the charge.

2012  MLD  1713   KARACHI-HIGH-COURT-SINDH

ABDUL NAEEM VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail, grant of—Further inquiry—Non-association of respectable persons of the locality in recovery proceedings—Effect—Despite earlier information respectable persons of the locality were not associated in recovery proceedings carried out against the accused—Held, allegations against accused needed further enquiry—Bail was granted.

2012  MLD  1713   KARACHI-HIGH-COURT-SINDH

ABDUL NAEEM VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail, grant of—Prosecution had associated some private person as witness during the entire process of apprehending the accused and recovering from him the alleged heroin—First memo of arrest had been prepared at the spot without joining any private witness though available and the second memo was prepared after the recovery of capsules containing heroin from the accused four days thereafter without any plausible explanation for such delay—Discrepancy was found in the weight of recovered heroin—According to the challan 780 grams heroin had been recovered, whereas the report of Chemical Examiner showed that recovered substance was 665 grams—Guilt of accused, thus, needed further probe in terms of S.497(2), Cr.P.C.—Case against accused did not fall within the prohibitory clause of S.497(1), Cr.P.C.—Accused was admitted to bail in circumstances.

2012  MLD  1713   KARACHI-HIGH-COURT-SINDH

ABDUL NAEEM VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail—Assessment of evidence—Principle—Deeper appreciation of the material on record cannot be made at bail stage, but only tentative appreciation thereof is to be made just to find out the prima facie connection of accused with the commission of the offence.

2012  MLD  1503   KARACHI-HIGH-COURT-SINDH

CHRISTOPHE YAKIBONGAY VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9(c), 14 & 15—Possession of narcotics—Bail, grant of—First bail application of accused had been disposed of by High Court without touching merits of the case, with a direction to Trial Court for conclusion of trial by a specified date—Two co-accused similarly placed in the F.I.R. had already been released on bail—Accused was in custody for the last more than two years and trial was still going on—Accused was entitled to bail on the rule of consistency—Even otherwise, direction of High Court of concluding the trial within the specified period had not been followed by the Trial Court in letter and spirit—Accused was admitted to bail in circumstances.

2012  MLD  1171   KARACHI-HIGH-COURT-SINDH

ABDULLAH VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, grant of—Further inquiry—Sample for chemical examination was forwarded with the delay of 9 days which delay had not been explained by the prosecution—As per F.I.R., encounter continued for about 25 minutes, but neither any injury was sustained by any body nor any damage was caused to the Police vehicle—Since it was border line case punishment being about 4 years and 6 months, and case requiring further inquiry in terms of subsection (2) of S.497, Cr.P.C., accused was admitted to bail, in circumstances.

2012  MLD  1032   KARACHI-HIGH-COURT-SINDH

RAWAL VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, grant of—Further inquiry—Accused was arrested from a thickly populated area, allegedly being in possession of 1025 grams of charas, but no private witness was associated at the time of the arrest—Section 25 of Control of Narcotic Substances Act, 1997 excluded operation of S. 103, Cr.P.C. but since arrest and recovery was made by police on prior information, police should have arranged private person from vicinity to act as witness for arrest and recovery—Sample of 10 grams sent to Chemical Examiner appeared to be meagre quantity and case was also a border-line case—Prosecution’s case appeared to be doubtful and false implication of accused could not be ruled out—Accused’s case required further inquiry in terms of subsection (2) of S.497, Cr.P.C. and accordingly he was admitted to bail.

2012  MLD  926   KARACHI-HIGH-COURT-SINDH

INAYAT alias ANO VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9—Possessing narcotics—Bail, grant of—Further inquiry—Alleged recovery of 1050 grams of charas was marginally exceeding boundary of 1000 grams, which did not fall within the prohibitory clause—Was yet to be decided at the trial as to whether case of accused attracted the provisions of Ss.9(b) or (c) of Control of Narcotic Substances Act, 1997—Accused had not been convicted in any of the case in which he was facing trial—Accused could not be denied the concession of bail only for the reason that he was facing trial in some cases—No private witness had been associated by the police at the time of arrest and recovery, which had made the case of prosecution doubtful and entitled accused to be admitted to bail—Accused having made out a case of further inquiry in terms of subsection (2) of S.497, Cr.P.C., he was admitted to bail, in circumstances.

2012  MLD  348   KARACHI-HIGH-COURT-SINDH

FAISAL HAYAT alias HAYATULLAH VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)—Possessing and trafficking narcotics—Bail, refusal of—Accused was selling heroin in odd time of night, no private witness was available—Recovered material was in the form of one hundred and ten rods of charas, total weighing Eleven hundred grams—Two customers were available as per contents of the F.I.R. who after seeing the Police mobile escaped from the spot taking advantage of the darkness of the night—Counsel for accused had contended that accused was innocent and had falsely been implicated due to mala fide intention and with ulterior motive—Counsel having failed to point out any material to support his plea, his contention was repelled—Innocence of accused could only be determined after recording of the evidence by the Trial Court—Challan having already been submitted before the Trial Court, court was directed to complete the trial within a period of two months’ time—Bail application was dismissed, in circumstances.

2012  PCrLJ  1168   ISLAMABAD

AZHAR ALI KHAN VS State

1. 9(c)— Possession of narcotics— Sample taken from recovered narcotic for chemical analysis—Principles—Where any narcotic substance is allegedly recovered while contained in different packets, wrappers or container of any kind or in the shape of separate cakes, slabs or any other individual and separate physical form, it is necessary that a separate sample is to be taken from every separate packet, wrapper or container and from every separate cake, slab or other form for chemical analysis and if that is not done then only that quantity of narcotic substance is to be considered against accused person from which a sample was taken and tested with positive results.

2012  PCrLJ  1168   ISLAMABAD

AZHAR ALI KHAN VS State

1. 9(c)— Possession of narcotics— Appreciation of evidence—Sentence, reduction in—Trial Court had convicted the accused (appellant) under S.9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to life imprisonment and imposed a fine of Rs.50,000—Contentions of accused were that sample collected from the allegedly recovered substance was highly insufficient, and that accused was a young offender and had no criminal history, therefore, he was entitled to reduction in his sentence—Validity—Statement of investigating officer was silent as to from how many sleepers, the sample was taken—Presumption, in circumstances, was that sample was not taken out from each sleeper, therefore, it was not possible to hold that the same were rods of charas or otherwise—Accused was a young offender and had no criminal history and appeared to be a carrier of the narcotic—Accused was behind bars for the last about seven years, which meant that he had served the major portion of his sentence—Sentence of accused was reduced to one already undergone by him but the amount of fine i.e. R.50,000 was to remain intact—Appeal was disposed of, accordingly.

2012  PCrLJ  833   ISLAMABAD

TARIQ MABOOD VS State

1. 4—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Quantity of narcotic to be dispatched for analysis—Scope and Interpretation—According to Rule 4 of Control of Narcotic Substances (Government Analysts) Rules, 2001, “reasonable quantity” of narcotic was required to be dispatched to the nearest testing laboratory—Plain interpretation of reasonable quantity was that a quantity by which analysis may be  carried  out  to  report  that subject  quantity  was narcotic.

2012  PCrLJ  833   ISLAMABAD

TARIQ MABOOD VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4—Possession and trafficking of narcotics—Appreciation of evidence—Quantity of narcotic to be dispatched for analysis—Scope—“Reasonable quantity”—Interpretation—Trial court had convicted the accused under S.9(c) of the Control of Narcotic Substances Act, 1997—Contention of accused that out of five packets allegedly recovered from him containing 5 kgs of heroin, only 1 gram of heroin from each packet was sent for analysis, which was violation of law and was not sufficient quantity—Validity—According to Rule 4 of Control of Narcotics Substances (Government Analysts) Rules, 2001, “reasonable quantity” of narcotic was required to be dispatched to the nearest testing laboratory—Plain interpretation of reasonable quantity was that a  quantity  by  which analysis  may  be  carried  out  to report  that  subject  quantity  was  narcotic—Authority  which  carried out  the  chemical examination  did  not  object  to  the  quantity of narcotic as being either insufficient or unreasonable—Accused had made no effort to call the chemical examiner as witness—Entire case record showed that accused had never challenged the fact that recovered substance was heroin—Technical grounds and scientific frictions  could  not  be  made basis   to  extend  any  benefit  to  the accused—Accused had not established any mala fide against the complainant-police officials—Trial Court had passed the impugned judgment in accordance with the evidence and material available on file—Appeal of accused was dismissed and judgment of Trial Court was upheld.

2011  SCMR  1034   SUPREME-COURT

SANJHA VS State

1. 9(c)—Possession of narcotics—Appraisal of evidence—Sentence, reduction in—Accused had been rightly found guilty for the recovery of ten kilograms “Charas” from his possession—Conviction of accused was consequently maintained-However, accused was more than 80 years old and he had remained in jail for about 4/5 years—Sentence of imprisonment for life awarded to accused was reduced to the imprisonment already undergone by him with reduction in fine in circumstances.

2011  SCMR  984   SUPREME-COURT

GUL BADSHAH VS State

1. 9(c)—Transporting narcotic drugs—Appraisal of evidence—Sentence, reduction in—Huge quantity of narcotics had been recovered from secret cavities of the truck loaded with bricks being driven by the accused—Concurrent finding of the two courts below holding the accused guilty was affirmed—However, the fact that the illicit substance was concealed in the secret cavities of the vehicle had suggested that the accused might not be aware in this regard, which could be considered as a mitigating circumstance in his favour–Conviction of accused was consequently maintained, but his sentence was reduced from death to imprisonment for life, without the benefit of S.382-B, Cr. P. C.

2011  SCMR  984   SUPREME-COURT

GUL BADSHAH VS State

1. 9(c)—Constitution of Pakistan, Art. 185(3)—Transporting narcotic drugs—Leave to appeal was granted to accused only on the question of quantum of sentence being appropriate punishment awarded to him or that he could have been punished to imprisonment for life having the effect of deterrence as well.

2011  SCMR  982   SUPREME-COURT

THE STATE through Collector of Customs VS BASHIR KHAN

1. 9(c)—Constitution of Pakistan, Art.185(3)—Possession of narcotic—Acquittal of accused—Trial Court convicted and sentenced accused, but High Court acquitted him of the charge—Petition for leave to appeal to Supreme Court being barred by 14 days, petitioner had filed appeal for condonation of such delay for the reasons that the documents for filing appeal were mixed in some other cases—Grounds mentioned in the application for condonation of delay was not recognized under the law to be a ground for condonation of delay—Justice demanded that in such like cases, delay should not be condoned because, it otherwise, would become a precedent; and at the same time accused would have to suffer, not on account of his own fault, but on account of act mentioned in the application of counsel for the petitioner.

2011  SCMR  965   SUPREME-COURT

ABDUL REHMAN VS State

1. 9—Constitution of Pakistan, Art. 185(3)—Sentence, reduction in—Petitioner/accused was convicted and sentenced to suffer imprisonment for 14 years with fine—Counsel for the petitioner had stated that he would not press the petition on merits, however his only grievance was with regard to the quantum of sentence of the petitioner—Prosecutor-General in view of the facts that the petitioner was a first time offender and not habitual criminal conceded to the reduction of sentence—Validity—No previous record of conviction of the petitioner in any offence was on record—Recovery effected was `Charas’ as pointed out by the counsel, which was distinct from heroin—Case, in circumstances called for lenient view—While converting the petition into appeal, same was partly allowed—Sentence and conviction of appellant/petitioner was reduced to five years’ R.I. with benefit of S.382-B, Cr.P. C., accordingly.

2011  SCMR  954   SUPREME-COURT

QEEMAT GUL VS State

Ss. 324/353/148/149—Control of Narcotic Substances Act (XXV of 1997), S.9—Constitution of Pakistan, Art. 185(3)—Attempt to commit qatl-e-amd and possession of narcotic drugs—Conversion of petition from leave to appeal into appeal—Three of accused persons travelling in vehicle in question received firearm injuries and one of them was killed—Police party escaped completely unhurt notwithstanding the allegation that they fired in self-defence—Vehicle, admittedly was severely damaged in, the accident—Vehicle had gone out of control after its driver was hit in the firing—Despite the serious accident, the petitioner was not hurt and no firearm was recovered, from him—Petitioner had been in detention since July, 2009 and was entitled to bail in circumstance—Petition was converted into appeal and was allowed—Accused would be released on bail, in circumstances.

2011  SCMR  908   SUPREME-COURT

THE STATE through Director-General, ANF VS SAID AHMED

1. 497(5)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Constitution of Pakistan, Art. 185(3)—Possession of narcotic drugs—Cancellation of bail, refusal of—Impugned order passed by High Court granting bail to accused did not suffer from any impropriety and the same was unexceptionable—Discretion vesting in the court to extend concession of bail had been properly exercised in the light of the well settled principles governing such matters—Petition for leave to appeal had no merit and the same was dismissed accordingly.

2011  SCMR  863   SUPREME-COURT

THE STATE through D.-G., A.N.F., Rawalpindi VS MUHAMMAD SALEEM KHAN

1. 561-A—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c)—Constitution of Pakistan, Art. 185(3)—Possession of narcotic drugs—High Court, vide impugned judgment, had converted the bail application of the accused/respondent into petition for quashment of proceedings and allowed the same—F.I.R. as well as other material on record had revealed that accused was an employee of the Civil Aviation Authority, who happened to be on duty at the Airport at the relevant time—Mere fact that accused was standing close to the other accused, therefore, would not saddle him with the responsibility of abetment of commission of the alleged offence—No incriminating evidence was available against the accused—Impugned judgment was just and fair, to which no exception could be taken on hyper-technical grounds—Leave to appeal was declined to complainant accordingly.

2011  SCMR  829   SUPREME-COURT

THE STATE through Director-General Anti-Narcotics Force, Rawalpindi VS SULTAN SHAH

1. 497(5)—Control of Narcotic Substances Act (XXV of 1997), S. 9—Constitution of Pakistan, Art. 185(3)—Possession of narcotic drugs—Bail, cancellation of—Notice issued to the accused as well as to the surety had not been served and were returned as unserved with the report that the accused was not found available at the given address—Accused had jumped his bail and had avoided the process of the court and law—Petition for leave to appeal was converted into appeal and by allowing the same the impugned order granting bail to accused was set aside in circumstances.

2011  SCMR  820   SUPREME-COURT

MUHAMMAD ASLAM VS State

1. 9(c)—Seizure of narcotic—Appraisal of evidence—Benefit of doubt—Accused was found standing near ten sacks of narcotics at the time of raid—Despite the incident having occurred in a busy public place of a town where many private persons were available, Investigating Officer did not try to arrange any witness of the locality, who might have seen the accused in any manner linked with the said ten sacks of narcotics lying near the road in open space—None of the two prosecution witnesses of the recovery had stated that he had seen the accused either bringing the said sacks or carrying the same with him—Active possession of the sacks of the accused could not be proved merely by his standing near them—Accused had specifically deposed on oath in his statement recorded under S. 340(2), Cr. P. C. before Trial Court that the sacks of narcotics belonged to some other person who has slipped away on seeing the police raiding party and his statement might be true—Even the informer or any other person had not seen the accused loading or unloading the sacks containing narcotic substances from any vehicle or any other source—Knowledge of accused about the contents of these sacks and his ownership about the same was not even established on record—Delay of more than seven days in sending the samples of narcotics to Chemical Examiner for anlaysis was also not explained by the prosecution—Accused was acquitted on benefit of doubt in circumstances.

2011  SCMR  641   SUPREME-COURT

THE STATE through Advocate-General, N.-W.F.P. VS SARFRAZ

1. 9(a)—Constitution of Pakistan, Art. 185(3)—Petition for leave to appeal against conversion of conviction of accused from S. 9(c) to S.9(a) of the Control of Narcotic Substances Act, 1997, by High Court—Opium weighing 80 Kgs. had allegedly been recovered from the vehicle of the accused—Out of the whole bulk samples of opium weighing 70 grams were sent to Chemical Examiner for opinion—Trial Court had sentenced the accused to imprisonment for life with fine’ under S. 9(c) of the Control of Narcotic Substances Act, 1997, but in appeal High Court had altered the conviction of accused to S.9(a) of the said Act and reduced their sentence to two years’ R.I. each—Validity—Recovered opium other than the one separated for samples, was not produced in the court on the ground of having been destroyed by the Magistrate under the orders of Trial Court—No evidence was brought on’ record to establish that the samples secured from the -‘narcotics material were the same, which had been taken from the remaining destroyed material—Prosecution had not been able to connect the separated narcotics material with the whole quantity recovered from the possession of accused—Procedure required for destruction of the remaining quantity of the narcotics material had neither been adhered to, nor the same had been proved in accordance with law–Quantity of opium claimed by the prosecution to have been actually recovered from the possession of accused, had not been proved on record—High Court, therefore, had rightly concluded that the quantity of opium weighing 70 grams as shown in the report of Chemical Examiner, was the recovered material and produced before the court—Impugned judgment did not suffer from any illegality or infirmity—Leave to appeal was declined to complainant accordingly.

2011  SCMR  624   SUPREME-COURT

GUL ALAM VS THE STATE through Advocate-General N.-W.F.P.; Peshawar

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 4 & 5—Constitution of Pakistan, Art. 185(3)—Leave to appeal, refusal of—Destruction of case property under the orders of Sessions Court did not suffer from any illegality, as samples of narcotics had already been taken and duly exhibited at the trial—Apprehension of accused and recovery of contraband “Charas” from the by carried by him, had been satisfactorily proved by the unaminous testimony of prosecution witnesses on all material aspects of the case qua place, time of arrest and recovery—No enmity, ill will or grudge was alleged against the prosecution witnesses by the accused for his false implication—Eleven kilograms of “Charas” could not be thrust upon the accused without any serious enmity—Rules 4 and 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, being directory and not mandatory, could not control the substantive provisions of the Control of Narcotic Substances Act, 1997 and frustrate its purpose—Failure to follow the said rules would not render the search, seizure and arrest under the parent Act a nullity and would not make the entire case doubtful, except the consequences provided in the rules—Belated dispatch of incriminating articles for expert opinion could not be fatal in the absence of any objection regarding the same having been tampered with or manipulated—Impugned judgment did not suffer from any illegality or infirmity, legal or factual—Leave to appeal was refused to accused accordingly.

2011  SCMR  165   SUPREME-COURT

MUHAMMAD SALMAN SHAFIQUE VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Constitution of Pakistan, Art. 185(3)—Possession of narcotic drug etc.—Bail, grant of—Further inquiry—Heroin weighing 1.530 kilogram was recovered from the suit-case of co-accused at the airport—According to said co-accused the suit-case belonged to present accused—Trial Court had granted bail to accused, which had been recalled by High Court vide impugned order—Held, Trial Court had allowed bail to accused after proper examination and appreciation of the facts and the evidence available on record and rightly concluded that the matter required further inquiry–No exception could be taken to the observation so made by the Trial Court—High Court had cancelled the bail violating the principles embodied in S.497(5), Cr. P. C. and the guidelines laid down by Supreme Court relating to cancellation of bail—Order passed by High Court was arbitrary and whimsical and was set aside—Bail was allowed to accused accordingly.

2011  SCMR  1954   SUPREME-COURT

MUHAMMAD IMRAN VS State

1. 9— Narcotic substances— Proof— Principles— Chemical examiner’s report—Stringent sentences have been provided under Control of Narcotic Substances Act, 1997 if offence charged against accused is proved within any component of S. 9 of Control of Narcotic Substances Act, 1997—For such reason, Control of Narcotic Substances Act, 1997, has to be construed strictly and relevant provision of law dealing with the procedure as well as furnishing proof like report of  expert  etc.  are  to  be  followed  strictly  in  the  interest  of  justice,  otherwise  it  becomes  impossible  to  hold that total commodity recovered from the possession of accused was narcotics.

2011  SCMR  1954   SUPREME-COURT

MUHAMMAD IMRAN VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 166—Recovery of narcotics—Reappraisal of evidence—Delay in sending case property—Recovery from other police station—Poast (poppy straw) weighing 97 maunds (3880 Kilograms), packed in 112 nylon and 16 jute sacks, was recovered during raid out of which 500 grams was separated as sample for sending the same to Chemical Examiner—Trial Court convicted the accused and sentenced him to life imprisonment, which was maintained by High Court—Validity—Officials (Anti-Narcotics Force) had acquired spy information about narcotics much before the raid and had enough time to pass on the said information to concerned police station—Officials themselves conducted the raid, made alleged recoveries and report was lodged with concerned police station after about more than ten hours—Recovered articles were kept by police party in its possession for a period of more than ten hours without offering any explanation and the same had created doubt in prosecution case—Complaint as well as recovery memo had mentioned that Poast (poppy straw) was recovered in 112 nylon and 16 Patson (jute) sacks but in recovery memo there was no mention that recovered items were grinded or mixed and then sent to Chemical Examiner—Contents of Chemical Examiner’s report indicated that sample taken from recovered articles (poppy heads and straw) was in “grinded and crushed” form, therefore, the same were not the illicit articles, which were recovered—No recovery of poppy straw could be attributed to the accused—Supreme Court set aside the conviction and sentence awarded to accused as prosecution had failed to prove its case—Appeal was allowed.

2011  SCMR  1736   SUPREME-COURT

MUHAMMAD AMIN  VS State

S.426—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Recovery of narcotics—Suspension of sentence—Absence of accused—Alleged recovery of 56 kilograms of Chars was made in the absence of accused at the instance of another accused already in custody in some other case—Date, time and place of arrest of accused was not shown with certainty by police—Site plan also did not show that place of recovery had two exits—Effect—Considering it a fit case for reappraisal of entire evidence, Supreme Court converted petition into appeal and sentence of life imprisonment awarded to both the accused was  suspended  and  they  were  released  on  bail—Petition  was allowed.

2011  SCMR  1471   SUPREME-COURT

MUHAMMAD HANIF VS State

Ss. 6, 7, 8, 9(c), 14, 15 & 16—Criminal Procedure Code (V of 1898), S. 516-A—Superdari of vehicle—Principle—Petitioner was registered owner of vehicle from which narcotics was recovered—No other person had come forward to claim ownership or possession of vehicle in question—Petitioner was not accused person in the case and he undertook to produce the relevant vehicle before any court of law if and when required to do so-Effect-Investigating agency was not justified in treating or taking possession of the vehicle as case property—Supreme Court directed that vehicle in question should not to be treated as case property and the same was handed over to petitioner on Superdari—Appeal was allowed.

2011  SCMR  1438   SUPREME-COURT

THE STATE through Director-General, Anti Narcotics Force, Rawalpindi VS QAISAR HAFEEZ

1. 497(5)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Constitution of Pakistan, Art. 185(3)—Cancellation of bail, refusal of—High Court had rightly granted bail to accused after having found his case requiring further inquiry—Case of accused was at the verge of conclusion after examination of six prosecution witnesses by Trial Court and cancellation of his bail merely on technical grounds was not appropriate—Accused had not abused the concession of bail at any time and was facing the trial proceedings—Impugned order of bail was based on proper appreciation of material on record and did not suffer from any infirmity or illegality calling for interference by Supreme Court—Petition was dismissed accordingly.

2011  SCMR  1408   SUPREME-COURT

THE STATE through Director-General, Anti Narcotics Force, Rawalpindi VS ZAMRAY KHAN

1. 497(5)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Constitution of Pakistan, Art. 185(3)—Bail, cancellation of—Huge quantity of narcotics having been recovered from the possession of accused, bail granted to him by High Court was not sustainable in law—Positive report of Chemical Examiner had proved the guilt of accused—Reasonable grounds existed to believe the commission of a non-bailable offence by the accused and he was not entitled to concession of bail—Accused was also avoiding the process of law to face the proceedings—Bail granted to accused by High Court was cancelled in circumstances.

2011  SCMR  1400   SUPREME-COURT

ARSHAD HUSSAIN VS State

1. 9(c)—Constitution of Pakistan, Art. 185(3)—Case of accused was not identical to that of two acquitted co-accused—No enmity existed between the parties—Ocular testimony, report of Chemical Examiner and recovery of “Charas” from the car had established the guilt of accused—Statements of prosecution witnesses had no material contradiction—Defence plea was not believable—Impugned judgment could not be imputed any infirmity or illegality justifying interference by Supreme Court—Leave to appeal was refused to accused accordingly.

2011  SCMR  1352   SUPREME-COURT

THE STATE through Director-General, ANF VS MUJEEB KHAN

S.497(5)—Control of Narcotic Substances Act (XXV of 1997), S.9—Constitution of Pakistan, Art. 185(3)— Narcotic case— Bail, cancellation of—High Court had granted bail to accused mainly on medical grounds coupled with his being in jail for the last two years—Prosecution was not shown to be responsible for the delay in conclusion of the trial by High Court—Accused had failed to appear before Trial Court and Supreme Court despite notice and non-bailable warrants issued against him and he was stated to have shifted to an unknown place–Matter could not be kept pending for an indefinite period—Petition was converted into appeal and bail allowed to accused was recalled in circumstances.

2011  YLR  2169   QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL JABBAR VS State

1. 9(c)—Possession and trafficking of narcotics—Appreciation of evidence—Prosecution witnesses were cross-examined at length, but nothing had come on record favouring accused or materially affected the case of prosecution to believe that charas was not recovered from the vehicle, which was being driven by accused at the relevant time—Prosecution had proved its case in respect of recovery of charas from the vehicle which was in possession and under control of the accused—Prosecution witnesses, however, in their account had stated that the charas, recovered front accused was in shape of rods, out of which 10/10 grams charas from 10 packets, in the shape of rods, were sent to the Chemical Expert for analysis, meaning thereby that initially only 100 grams of charas was sent to the expert for analysis—Nothing was available on record showing that samples for examination by Chemical Examiner were taken out from all the packets or each rod to prove that entire rods/packets contained charas—Samples were separated and sent to the Chemical Expert after lapse of about seven months after the arrest of accused—Nothing had come on record, which could show that during such period of time where the charas was lying, whether in the Customs Intelligence Office or somewhere else—Prosecution was duty bound to place on record the entire evidence in order to prove its case against accused effectively beyond any shadow of doubt, but evidence, brought on record, clearly missed the chain—Trial Court had wrongly placed reliance upon the report of Chemical Expert which was not admissible piece of evidence being procured and tendered illegally—Prosecution had proved its case against accused only to the extent of 100 grams charas in circumstances—-Accused being in custody since 13th January, 2008, conviction and sentence awarded to accused be treated as already undergone.

2011  YLR  2169   QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL JABBAR VS State

Ss. 156 & 173—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession and trafficking of narcotics— Investigation of case by Police or Customs Authorities—Power of Police to reinvestigate the case—Police or Customs Authorities were not statutorily prohibited from investigating a case as many times as they chose; and could file a fresh challan in the court as a result of subsequent investigation or events–Powers of Police to reinvestigate the case or submit subsequent challan, were unlimited; and no law existed which precluded the Police from reinvestigation of case—Any document, which, the prosecution intended to rely upon, should be submitted before the court through proper and subsequent challan as envisaged under S.173 of Cr.P.C.—If the law required something to be done in a specific manner, it should be done as law required and departure was not permissible—Police or any other Investigating Agency, had no unfettered power to place a document on record in gross violation of the prescribed manner.

2011  YLR  29   QUETTA-HIGH-COURT-BALOCHISTAN

GHULAM JALLANI VS State

Ss. 9(c), 21 & 22—Possession of narcotics—Appreciation of evidence—Accused contended that neither the Investigating Officer was competent to investigate the case nor did he visit the place of occurrence—Validity—Naib Risaldar was duly ordered by the Judicial Magistrate to conduct the proceedings which did not suffer from any illegality unless maid fide of the Investigating Officer was established—No mala fide was established against the prosecution or Investigating Officer—Accused did not deny the ownership of the vehicle or the drums from which the contraband material was recovered—Accused had not stated that he was transporting the said drums to deliver the same to anyone—Material recovered from and articles owned by the accused established that he was in conscious possession of the same—No material contradiction was pointed out in prosecution case—Trial Court rightly assessed the material on record—Sentence awarded to the accused was commensurate with the seriousness of his offence—Appeal was dismissed in circumstances.

2011  PCrLJ  1899   QUETTA-HIGH-COURT-BALOCHISTAN

KHALIQUE DAD alias JAN AGHA VS State

Ss. 9(c), 21 & 25—Criminal Procedure Code (V of 1898), S.103—Possessing contraband narcotics— Appreciation of evidence—Prosecution had successfully established the recovery of contraband material from the house of accused—Objection that the recovery had been made in violation of the provisions of S.103, Cr.P.C. as no search warrants had been taken in the matter, gave no help to accused—Under the provisions of S.25 of the Control of Narcotic Substances Act, 1997, application of S.103, Cr.P.C. had been excluded—Neglecting provisions of S.21 of the Control of Narcotic Substances Act, 1997, which were directory in nature and not mandatory, would not throw the entire proceedings of recovery out of consideration, particularly when none from the raiding party had been shown having any enmity against accused—No specific or significant contradiction was noticed in the statements of prosecution witnesses, which could discredit or disbelieve their evidence—Prosecution evidence was in consonance, corroboratory and had no defect at all—No dent had been caused to the evidence of prosecution witnesses from defence side—No misreading and non-reading of evidence was found in the case—No defect or lacuna having been noticed in the judgment of the court below, same could not be interfered with, in circumstances.

2011  PCrLJ  825   QUETTA-HIGH-COURT-BALOCHISTAN

NADIL JAN VS State

1. 9(c)—Prohibition of possession, import or export and trafficking of narcotic—Appreciation of evidence—Both prosecution witnesses corroborated statements of each other and no material contradiction appeared in their statements, despite cross-examination made at length—Samples taken from whole of the material was sent to the Chemical Expert from whom positive report had been received—Accused persons during course of the trial had never challenged that recovered substance was not narcotic, sending of entire recovered material for analysis, was not necessary—Non-appearance of Investigating Officer, would not be fatal for the case of prosecution as all the relevant material had been placed before the court through remaining witnesses; and sufficient evidence was available on record to prove the charge against accused persons—Accused persons tried to prove their false involvement in the case, but they failed to explain their presence at the site—Even otherwise the presence and their arrest from the site was not denied by accused persons—Accused claimed that at relevant time they were busy in hunting and when they heard noises of firing they laid down on earth ‘in order to save themselves and that they had been falsely involved in the case—Accused had failed to establish presence of any hunting ground in the area; they even failed to show that what they were hunting and with what weapon, defence plea being without any weight, no reliance could be made on the same—No enmity or mala fide was shown by accused persons on the part of personnel of Anti-Narcotic Force due to which they were involved in the case—Trial Court had assessed the material on record properly and arrived to the conclusion which was in accordance with law—Accused had failed to point out any illegality or irregularity committed by the Trial Court which required interference by High Court—Accused having failed to make out any case in their favour, their appeal against their conviction and sentence, was dismissed, in circumstances.

2011  PCrLJ  669   QUETTA-HIGH-COURT-BALOCHISTAN

JAMSHED KHAN VS State

1. 9(c)—Appreciation of evidence—Allegations of F.I.R. were fully supported by witnesses—No specific allegation of enmity or mala fide was levelled by the accused—Testimony of witnesses regarding arrest and recovery remained unshattered—Accused’s contention that higher officials in whose presence search was conducted was not relevant as prosecution was not required to examine every witness—Omission to examine a witness would not discredit the account given by other eye­witnesses—Omission to examine said witnesses did not affect the merits of the case—Not conducting the search at the Naka (picket) and taking the vehicle to Police Station was an irregularity not fatal to the prosecution case—No material contradiction was found in the statements of the witnesses—Appeal was dismissed in circumstances.

2011  PCrLJ  384   QUETTA-HIGH-COURT-BALOCHISTAN

LAL MUHAMMAD VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Prosecution proved that the accused was driving the truck carrying 320 Kg of Hashish—Inference could safely be drawn that accused was in the knowledge of the narcotic/drug hidden in secret cavities of the truck—Contraband recovered would be deemed to be in exclusive possession of the accused—In the absence of any ill-will or animosity on the part of the Police party, huge quantity of hashish could not be expected to have been planted on the accused—Judgment of Trial Court was based on correct application of law and proper evaluation of evidence on record—Charge against the accused stood proved–Prosecution succeeded in proving its case against the accused—Appeal was dismissed in circumstances.

2011  PCrLJ  31   QUETTA-HIGH-COURT-BALOCHISTAN

SHABIR AHMED VS State

Ss. 9(c), 21, 22 & 23—Possession of narcotics—Appreciation of evidence—Both the accused were driving the vehicle from which the narcotic was recovered—Accused contended that an officer below the rank of Sub-Inspector could not effect recovery under Ss.21, 22 and 23 of the Control of Narcotic Substances Act, 1997—Validity—Naib Risaldar committed no fault or irregularity vitiating the proceedings as he acted in the absence of the Risaldar with the permission of the Judicial Magistrate—Any irregularity in the course of investigation would not vitiate later proceeding unless such irregularity had the effect of prejudicing the case of any of the parties especially when accused failed to establish the mala fide of the Investigating Officer—Witnesses of recovery corroborated the evidence without any contradiction in their statements—Material recovered though was not sealed and samples were not taken on the spot yet the recovery of the material was established—Accused’s presence in the vehicle carrying the narcotic substance and his apprehension from the spot was not denied by him—Burden lay on the accused to establish that he was boarding the vehicle as a hitchhiker and had nothing to do with the material recovered from the vehicle—Both the present accused and the co-accused driving the vehicle belonged to the same locality—Material on record connected the accused with the commission of the offence—Trial Court appreciated the evidence correctly—No interference was warranted by the High Court—Appeal was dismissed in circumstances.

2011  MLD  1819   QUETTA-HIGH-COURT-BALOCHISTAN

Haji ABDUL RAHIM VS State

Ss. 9(c), 20, 21 & 29—Prohibition (Enforcement of Hadd)  Order  (4 of 1979), Arts.3 & 4—West Pakistan Arms Ordinance (XX of 1965), S.13(e)—Possessing narcotics, prohibition of manufacturing and owning intoxicant and possessing unlicensed arms—Appreciation of evidence—Raid was conducted at odd hours of the night at about 10-15 P.M., there was no possibility of availing search warrants as emergency for the raid was mentioned in the F.I.R.—Even otherwise S.21 of Control of Narcotic Substances Act, 1997, had empowered the officer to enter, search and arrest without warrants; and S.20 of the Act being directory in nature, its non-compliance could not be considered a strong ground for holding that the trial of accused was bad in the eye of law—Prosecution witnesses had throughout remained consistent and no contradictions were noticed in their statements with regard to the recovery of opium from the Baitak in presence and possession of accused—Presumption under S.29 of Control of Narcotic Substances Act, 1997, was that unless the contrary was proved, accused would be considered to have committed offence under the Act in respect of contraband—Accused, in the present case,  had failed to rebut said presumption—Defence, during the trial was wavering and was not consistent in its plea—Objection of the counsel for accused on the analysis report was also vague as the report was issued by Federal Government Analyst, who had received sealed parcel of suspected material—Charge against accused was not defective as urged by accused and no error or illegality was found in the same—Accused had failed to substantiate his plea that he had any dispute/quarrel with or had enmity with Officer of Anti-Narcotic Force—Defence plea proved to be sham and baseless and there was no possibility of false implication or foisting the contraband—Prosecution, in circumstances, had proved its case against accused up to the hilt with regard to recovery of 15.500 Kgs opium—Conviction awarded to accused by the Trial Court was based on proper appreciation of evidence on record and no reason existed to interfere in the same.

2011  MLD  1788   QUETTA-HIGH-COURT-BALOCHISTAN

MUSSA KALEEM VS State

Rr. 32, 33, 34 & 198—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Constitution of Pakistan, Arts.199 & 45—Constitutional petition—Possessing narcotic—Sentence, reduction in—Special remission from President—Trial 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.

2011  MLD  1208   QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL WAHID VS State

1. 9(b)(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Benefit of doubt—Recovered contraband weighing 600 Kgs was in the shape of rods in 500 packets, each packet weighing 1.2  Kgs—From the recovered contraband 12 parcels weighing 10 grams each were prepared as samples for chemical examination, but the Mashirnama was silent about the fact as to from how many rods said 12 samples were drawn—Prosecution witness had also failed to show as to from how many packets or from how many rods the 12 parcels weighing 10 grams each were prepared for chemical examination—As all the packets were not opened, presumption would be that the samples were not drawn from each packet and each rod—Provisions of Control of Narcotic Substances Act, 1997, had to be construed strictly to furnish the proof like the report of the expert with regard to the recovered contraband—In the present case, the samples had not been drawn from each rod of the contraband—Held, for the safe administration of justice, it would be presumed that 12 samples weighing 10 grams each total (120 grams) were only drawn from 12 rods; and for remaining rods in absence of any sample taken out from them, it would not be possible to hold that the same were rods of charas or otherwise—Said circumstance created a reasonable doubt, which could not be ignored in dispensing justice—Rule of benefit of doubt described as a golden rule, was essentially a rule of prudence and a circumstance creating reasonable doubt in a prudent mind could not be ignored; and benefit of same was to be extended to accused—Prosecution had established its case against accused to the extent of recovery of 120 grams charas—Charge from S.9(c) of Control of Narcotic Substances Act, 1997, was altered to S.9(b) of the said Act—Accused were convicted for the period already undergone, in circumstances.

2011  YLR  3096   PESHAWAR-HIGH-COURT

SABIR SHAH alias SALOO VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Alleged contraband was recovered from the secret cavities made in the Fuel Tank of motor car which was being driven by accused—Police’ had not taken into possession the driving licence of accused and if he was not having the same, he was not challaned under provisions’ of Motor Vehicles Ordinance, 1965 so as to prove that same person was driving the car in question at the relevant time, when the recovery of contraband was effected—According to prosecution witness, car was not owned by accused, but was owned by other person, but that other person was not arrayed as an accused in the case–Prosecution was supposed to prove connection of accused with the motor car in question—Prosecution witnesses were contradicted by each other—Prosecution having failed to establish its case against ‘accused beyond reasonable doubt, impugned judgment passed by the Trial Court, was set aside and accused was acquitted of the charge and was released, in circumstances.

2011  YLR  2975   PESHAWAR-HIGH-COURT

Mst. KABELA VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51—Possessing narcotics—Bail, grant of—-Accused though was directly involved in the narcotics case, but a suckling baby was along with the accused who had been behind the bars for the last two months—Welfare of minor at such a stage would be taken into account—Punishment provided for the offence, was either death or life imprisonment because the quantity of narcotic recovered from her possession exceeded more than 1 Kilogram—Accused, in circumstances, though could not be released on bail as laid down in S.51 of Control of Narcotic Substances Act, 1997, but there was a suckling baby of accused who was kept in jail and was innocent—Concept of “welfare of minor” was incompatible with jail life—Instead of detaining the innocent child/infant in the jail for the crime allegedly committed by his mother, it would be in the interest of justice as well as welfare of minor, if the mother was released from the jail—Holy Prophet in case of “Ghamidiyyah” had suspended the sentence of pregnant woman, not only till delivery of the child, but also postponed same till suckling period i.e. two years, for the welfare of the child which showed paramount importance and significance of the right of a suckling child in Islam—Held, woman having suckling child, should not be detained and granted bail, in such circumstances—Order accordingly.

2011  YLR  1671   PESHAWAR-HIGH-COURT

SIRAJ KHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9—West Pakistan Arms Ordinance (XX of 1965), S.13—Possession, import, export and trafficking of narcotics—Bail, grant of—Earlier bail application filed by accused was dismissed by the High Court with direction to the Trial Court to conclude the trial of the case within shortest possible time, but not later than two months—Despite said direction of High Court, trial against accused had not commenced—Said delay could not be attributed to accused, because he had availed his legal right by submitting application for determination of his age; it was the duty of prosecution to get determined age of accused at investigation stage, but prima facie it appeared that prosecution had intentionally avoided getting the age of accused determined—Prosecution had failed to advance any reason for non-compliance of the direction of High Court—Whenever a specific direction was issued by a superior court, same must be acted upon, or at least some efforts towards achieving that object, must appear to have been made—No measures, in the case were taken for faithful compliance of court’s direction, which constituted a sufficient ground for enlargement of accused on bail—Even otherwise there was no likelihood of conclusion of trial in near future—Case for bail on fresh ground was made out in favour of accused being Juvenile Offender—Accused, was admitted to bail, in circumstances.

2011  YLR  1245   PESHAWAR-HIGH-COURT

SAJID KHAN VS State

1. 9(c)—Appreciation of evidence–Benefit of doubt—Witnesses not only made improvements but also contradicted each other, on material points—Contradictions regarding recovery and samples of narcotic substance fatally dented prosecution case–Report of Forensic Science Laboratory falsified the prosecution story by revealing that the Charas was in `brown solid’ instead of powder form as asserted by prosecution—Benefit of said doubt could not be withheld from the accused—No evidence was available to establish the link of the accused with the car allegedly carrying the contraband was produced—Prosecution witness’s admission regarding presence of the two ladies demolished its case beyond redemption—Prosecution failed to prove conscious possession of narcotics by accused or their control over the vehicle—Commission of the offence by the father and the son jointly could not be believed while the same could have been done by one person alone—Prosecution failed to prove its case beyond reasonable doubt—Appeal was accepted in circumstances—Conviction and sentence of accused was set aside.

2011  YLR  1187   PESHAWAR-HIGH-COURT

Mst. GULAB JAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 29—Possession of narcotics—Bail, refusal of–Accused could not justify their presence in the car carrying the contraband and failed to establish that they were not in conscious possession of the contraband—Presence of the accused in said car was sufficient to link theist with the recovery—Person found to be in possession of illicit articles would be presumed to have committed the offence under Control of Narcotic Substances Act, 1997 unless the contrary had been proved—Accused failed to rebut the presumption under S.29 of the Control of Narcotic Substances Act, 1997—Plea of the accused that they were travelling in the car as hitch-hikers could not be believed—Offence of the accused fell within prohibitory clause of S.497, Cr.P.C. disentitling them to the concession of, bail—Bail application was dismissed.

2011  YLR  1143   PESHAWAR-HIGH-COURT

SAQIB KHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—West Pakistan Arms Ordinance (XX of 1965), S.13–Trafficking prohibited chemical and possession of arms—Bail, refusal of—Accused were caught red-handed while trafficking huge quantity of prohibited chemical namely `Acetic Anhydride’ in vehicles, for which they could not offer any plausible explanation/reasonable justification—Tentative assessment of record would show that accused were found reasonably connected with the commission of heinous offence of moral turpitude, which fell within the prohibited clause of S.497, Cr.P.C.—Bail petitions filed by accused persons being bereft of any merit, were dismissed—Since challan had been put in the court, the Trial Court was directed to conclude the trial of case within shortest possible time, but not later than two months.

2011  YLR  411   PESHAWAR-HIGH-COURT

GULMEER VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Accused proved to be unaware of the conscious knowledge of the presence of the narcotics in the truck in question—Prosecution in its case had also failed to establish as to whether said accused had knowledge of the presence of narcotics in the secret cavities of the truck or not—Accused, no doubt was on the driving seat at the time of recovery and he too, had admitted that very fact, but his mere presence in the truck would not ipso facto be a proof of concealment of narcotics in the secret cavities; and having conscious knowledge of the same—Mere fact that accused was driving the truck at the relevant time which he admitted, in circumstances, would not be sufficient to connect hint with the recovery of narcotics—Mere recovery of narcotics from vehicle driven by accused at the relevant time, would not be sufficient to connect accused with the commission of offence unless there was something material available on the record which could justify the involvement of accused—Evidence led by the prosecution was deficient in that regard while the evidence of the accused was confidence inspiring—Prosecution had failed to establish case under S.9(c) of Control of Narcotic Substances Act, 1997 against said accused—Involvement of accused in the case having become doubtful, benefit of which under the law could not be refused to him—Conviction and sentence awarded to the accused by the Trial Court, were set aside and he was released.

2011  YLR  411   PESHAWAR-HIGH-COURT

GULMEER VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Huge quantity of incriminating articles was recovered from the secret cavities of the truck intercepted by Anti-Narcotic Force Staff—Nexus of both accused persons with the truck had also been established on the record—No doubt, said truck was registered in the name of someone else, but ownership of truck in the name of one of accused was established on the record—Parcel/packets separated for Chemical Analysis were tested positive by the Forensic Science Laboratory—Both accused persons had recorded their confessional statements before the Judicial Magistrate which statements proved to be voluntarily recorded and without any duress and compulsion, and no reason was available to disbelieve them—Presence of said witnesses had also been admitted by one of the accused—Prosecution, in circumstances, had established without any reasonable doubt the presence of huge quantity of incriminating substance recovered from the secret cavities of the truck which was well within the conscious knowledge of both accused; and mens rea of both accused persons, in circumstances, was also established on record—Prosecution witnesses were consistent in their version with no material contradictions in their statements—When it was established on record that the recovered material was narcotics, then it became the turn of the person who was booked for the offence to rebut the material brought against him by the prosecution—Defence version given by accused persons, was also not helpful as they had failed to rebut the evidence against them—Appeal filed by said two accused persons was dismissed and conviction and sentence awarded to them by the Trial Court were maintained.

2011  YLR  341   PESHAWAR-HIGH-COURT

MUHAMMAD ALAMGIR VS State

1. 9(c)—Juvenile Justice System Ordinance (XXII of 2000), S.11—Smuggling of narcotics—Appreciation of evidence—Release of child accused on probation—Presence of accused persons in the Bus at the time of arrest, the recovery of the contraband from the secret cavities of the bus and positive report of Forensic Science Laboratory, had clearly established the offence having been committed by accused persons—Prosecution, in circumstances, had been able to prove the case against accused persons—Accused persons, in circumstances had no legal ground to disturb the conviction and sentence awarded to them by the Trial Court, however, it was admitted by all parties that both accused persons were `Juvenile’ at the time of commission of offence—Juvenile Court had discretion to decide the issue of release of a juvenile on probation—Legislature had bestowed the final authority upon the Juvenile Court to decide the same, but by not exercising said discretion or in-action of the Juvenile Court would be offending the dictates of law—In the present case Trial Court had not exercised said discretion vested in it under S.11 of Juvenile Justice System Ordinance, 2000—By not doing so, Court had surely prejudiced accused persons and had committed an illegality, which required judicial correction—Maintaining conviction and sentence awarded to accused persons, case was remanded to the Trial Court to decide afresh after providing opportunity of hearing to accused and rendering reasons, regarding the non-exercise of its discretion as provided under S.11 of Juvenile Justice System Ordinance, 2000 to release accused on probation and the terms thereof.

2011  YLR  341   PESHAWAR-HIGH-COURT

MUHAMMAD ALAMGIR VS State

Ss. 9(c), 32 & 33—Smuggling of narcotics—Confiscation of Bus allegedly used in offence—Vehicle used to transport the contrabands was liable to confiscation to the State under S.32 of Control of Narcotic Substances Act, 1997, but such power of confiscation was subject to proviso provided in subsection (2) of S.32 of the Ordinance—Under said Proviso no vehicle could be confiscated unless it was proved that the owner thereof knew that the offence was being or was to be committed—In the present case, the Trial Court had confiscated the Bus carrying the contrabands, without any proof of said condition precedent—No evidence was produced by the prosecution to prove, firstly as to who was the owner; and secondly, that the said owner knew that the offence was being or was to be committed—Order of confiscating the Bus, without considering the claim of ownership of appellant in respect thereof, in circumstances was illegal having violated provisions of Control of Narcotic Substances Act, 1997—Order confiscating Bus was set aside and case was remanded to the Trial Court to inquire the claim of ownership made by the appellant by providing appellant the opportunity to produce evidence regarding his ownership of said Bus.

2011  YLR  238   PESHAWAR-HIGH-COURT

ABRAR HUSSAIN VS State

Ss. 9(c) & 20—Constitution of Pakistan, Art. 14—Possession of narcotics—Appreciation of evidence—Entry into and search of house of accused was in sheer violation of fundament rights envisaged under Art.14 of the Constitution—-Search warrant issued by Judicial Magistrate, was immaterial, in circumstances—Version put forth by the prosecution that as per pointation of accused, search and recovery was made, was a frivolous pretext particularly when raid was conducted in pursuance to search warrant without fulfilling command of Constitution together with deviating from legal obligations—House in question was not in exclusive possession of accused, but other inmates of the house, too resided over there; it could not be presumed that the contraband was in exclusive possession of accused, especially when he had been acquitted of the charge qua recovery of Kalashnikov from the house in consequence of same raid—Samples of contraband were sent for chemical analysis after lapse of 19 days—Prosecution apart from other infirmities, could not prove its case against accused beyond any shadow of doubt—Conviction and sentence awarded to accused vide impugned judgment and order of Special Court was set aside and accused was acquitted of the charge and was set at liberty; in circumstances.

2011  YLR  238   PESHAWAR-HIGH-COURT

ABRAR HUSSAIN VS State

Ss. 9(c), 20 & 21—Possession of narcotics—Power to issue warrant—Search warrant in the case was obtained from the court of Judicial Magistrate, whereby S.H.O. was authorized to conduct raid upon the house of accused—Raid was conducted after lapse of 15 days of issuance of search warrant—Validity—Under provisions of S.20 of Control of Narcotic Substances Act, 1997, special court, alone could issue warrant for the search of any building, place, premises or conveyance in which it had reason to believe that contraband was kept or concealed—Magistrate, muchless Judicial Magistrate had not been invested with such powers—Said jurisdictional error could not be ignored—Before such an action was justified, the existence or otherwise of the power was to be ascertained so as to perform it within permissible limits failing which the very action together with super-structures built thereon would crumble—Police Officer though could have recourse to S.21 of Control of Narcotic Substances Act, 1997, but that was subject to the condition that after forming a definite opinion that obtaining of search warrant would consume much time enabling accused to destroy or conceal evidence, then of course, the same could be resorted to, but in that eventuality, burden would lay upon the Police Officer to give plausible explanation in respect thereto—In normal circumstances, obtaining of search warrant could not be dispensed with nor Police Officer was given licence to transgress the authority of law as per his own desire tantamounting to clear cut departure from procedure prescribed under the law—Search warrant issued by Judicial Magistrate did not clothe the S.H.O. with an authority to enter and search the house of accused.

2011  YLR  134   PESHAWAR-HIGH-COURT

BAKHTI JAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Contents of murasila and statements of prosecution witnesses were not in line with each other—Accused was resident of the area and owned agricultural land near the alleged place of occurrence and also owned residential house as well as a market consisting of 35 shops in close proximity of the spot—Star witness of prosecution who received alleged spy information and also supervised the raid proceedings, failed to appear before the court for recording his evidence against accused—Except spy information, no other evidence had been brought on the record to connect or link accused with the alleged recovered narcotics—Prosecution witness who posed himself to be eye-witness of the occurrence, in spite of being present at the spot did not see any proceedings of recovery or arrest of accused with alleged narcotics—Said witness who was a Foot Constable (Narcotics), and was present with the complainant from the beginning till drafting of the murasila strangely did not notice any arrest proceedings conducted by the complainant–Investigation, in circumstances, had not been conducted in the manner as shown by the complainant—Recovery of contraband was also doubtful for the reason that same was not made in presence of public witnesses—In such like cases a single infirmity, which would create reasonable doubt, in the prudent mind was sufficient for acquittal of accused—Prosecution story being full of doubts lacked the quality for maintaining conviction of accused and could not be believed—Extending benefit of doubt to accused, judgment of the Trial Court was set aside and accused was released.

2011  YLR  134   PESHAWAR-HIGH-COURT

BAKHTI JAN VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S.103—Possession of narcotics—Recovery proceedings—Prior information—Recovery of contraband was doubtful for the reason that recovery was not made in the presence of public witnesses—Though the applicability of S.103, Cr.P.C. had been excluded through S.25 of Control of Narcotic Substances Act, 1997, but association of public witnesses was necessary when the proceedings were conducted on prior information.

2011  PCrLJ  1769   PESHAWAR-HIGH-COURT

RAHIM GUL VS State

1. 9(c)—Trafficking of narcotics—Appreciation of evidence—Version of the prosecution seemed to be very plausible and appealable to the common sense, whereas the version of accused being based on denial simpliciter, did not appeal to logic and reason—Huge quantity of 76 kilograms of charas, could not be thrusted upon accused without any serious enmity of the prosecution witnesses—No reason existed to believe that accused were falsely involved in the case by letting the actual culprits free—Prosecution had fully proved that accused at the relevant time was driving the truck in question with whom co-accused was also present and charas weighing 76 kilograms was recovered from the secret cavities of the truck in question—Prosecution was not legally required to prove the link of accused with the truck in the capacity as owner or driver because case had to be decided on the basis of facts, which had come on record—Presence of accused persons in the truck at the relevant time, their arrest on the spot and recovery of charas from the secret cavities of the truck stood established beyond any reasonable doubt and the Trial Court had rightly discarded the version of defence—Charas weighing 76 kilograms having been recovered from the secret cavities of the truck, driver and his companion on a long journey, would be supposed to have knowledge of the goods on board—Murasila, F.I.R., recovery memos and deposition of prosecution witnesses would show that the samples were taken from all the packets with a small quantity from each slab for chemical analysis and same were found as charas by the Laboratory—Presence of such a direct evidence in absence of any mala fide or enmity, was sufficient enough to believe the involvement of accused in the commission of offence—No material discrepancy having been noticed in the testimony of the prosecution witnesses, the well reasoned findings of the Trial Court holding accused persons guilty of the charge, were not open to any exception—Accused appeared to be just transporters/carriers of the contraband working for others—Officials had not tried to nab the actual criminals who were playing with health and lives of the people of the country—Imprisonment for life, as awarded to accused by the Trial Court appeared to be a bit harsh—Taking a lenient view their sentences were reduced to imprisonment for ten years, in circumstances.

2011  PCrLJ  1769   PESHAWAR-HIGH-COURT

RAHIM GUL VS State

1. 9(c)—Trafficking of narcotics—Appreciation of evidence—Simpliciter denial of accused—When a distinct and specific plea was taken by the defence, then the same must be substantiated by leading evidence—Where the prosecution had proved its version by leading overwhelming incriminating evidence, the denial simpliciter by defence, could hardly be sustained.

2011  PCrLJ  1340   PESHAWAR-HIGH-COURT

MUHAMMAD ISMAIL VS SUPERINTENDENT, CENTRAL PRISON, PESHAWAR

S.9(c)—Constitution of Pakistan, Art.199—Constitutional petition—Possessing  narcotics—Petitioner  was  tried  by  two  different  courts  and  ultimately  was  convicted  and  sentenced  on  different dates—No  opportunity  was  available  for  one  or  the  other  court  to think over as to how the sentence already awarded would run concurrently with  the  subsequent  one—High  Court,  in  circumstances, directed that  the  sentences  awarded  to  the  petitioner  would  run concurrently.

2011  PCrLJ  1203   PESHAWAR-HIGH-COURT

ISRAR VS State

Ss. 9, 35 & 48—Possessing, import or export and trafficking of narcotics—Report submitted by Chemical Examiner not duly notified—Effect—Accused was convicted and sentenced on report of Chemical Examiner who could not be termed as a Government Analyst in terms of  S.35  of  Control  of  Narcotic  Substances  Act,  1997—When  the person  analyzing  the  samples  could  not  be  termed as  a Government Analyst, his report being devoid of any evidentiary worth could not form basis for conviction of accused—Re-examination of the samples of narcotic by a qualified Government Analyst, in circumstances, would be just and fair not only to accused, but to the prosecution as well and remand of case would be inevitable—Impugned conviction  and  sentence  recorded  by  the  Trial  Court,  was set aside and case was sent for decision afresh after taking fresh samples and getting them examined from the Government Analyst duly appointed in terms of S.35 of Control  of  Narcotic  Substances  Act,  1997  and  Rules  made thereunder— Accused was released on bail, in circumstances.

2011  PCrLJ  1182   PESHAWAR-HIGH-COURT

ALI REHMAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing and trafficking narcotics—Bail, grant of—Lady co-accused had stated that accused who was driver, was not involved in the matter and had no knowledge about the narcotics—Such statements though were not admissible, but when Investigating Officer recorded the same, definite purpose behind that was to some extent that he was satisfied with regard to the innocence of accused—Accused and co-accused belonged to different areas and were not related to each other—Possibility was that accused might have taken co-accused to their destination because his car was hired—Accused was not supposed to search the luggage of the passengers—Whether accused was having conscious knowledge about the narcotics or not, was still open to debate—Let the prosecution connect accused with the crime at the trial; till then refusal of bail to accused would not be justifiable—Accused was admitted to bail, in circumstances.

2011  PCrLJ  696   PESHAWAR-HIGH-COURT

THE STATE through Advocate-General, N.-W.F.P., Peshawar VS GULLA

1. 9—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4—Criminal Procedure Code (V of 1898), S. 417(2-A)—Possession of narcotics—Appeal against acquittal—Appreciation of evidence—Sample was sent to the Laboratory for chemical analysis with unexplained delay of twenty eight days; due to such unexplained delay, process of alleged recovery had become doubtful—Contradiction existed in the statements of prosecution witnesses with regard to identification of accused—Both recovery witnesses were Police Officials and despite availability of private individuals on the spot none was associated with the recovery and search—Though S.25 of Control of Narcotic Substances Act, 1997 had excluded S.103, Cr.P.C., but great care and caution was to be taken for association of private witnesses if available at the time of arrest and recovery—Lady accused was arrested from a Coach where she was present along with other passengers, but Investigating Officer had failed to associate any of such passengers or even driver or conductor of the bus—Appeal against acquittal was dismissed in circumstances.

2011  PCrLJ  696   PESHAWAR-HIGH-COURT

THE STATE through Advocate-General, N.-W.F.P., Peshawar VS GULLA

1. 9—Prohibition (Enforcement of Hddd) Order (4 of 1979), Arts. 3/4—Criminal Procedure Code (V of 1898), S. 417(2-A)—Possession of narcotics—Appeal against acquittal—Limitation—Appeal in the present case was filed after more than three months of impugned judgment—Under subsection (2-A) of S.417, Cr. P. C. a person aggrieved by the order of acquittal passed by the court could file appeal within thirty days—Appeal being hopelessly barred by time and also without any application for condonation of delay, could be dismissed on the ground of limitation alone.

2011  PCrLJ  696   PESHAWAR-HIGH-COURT

THE STATE through Advocate-General, N.-W.F.P., Peshawar VS GULLA

Ss. 9 & 21—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4—Criminal Procedure Code (V of 1898), S. 417(2-A)–Possession of narcotics—Appeal against acquittal—Appreciation of evidence—Accused had been acquitted on the ground that under the Police Order, 2002, the complainant was not incharge of investigation, but despite that he carried out the same, which was illegal and its benefit was to be given to accused—Validity—Finding of the Trial Court was against the law for the reason that Police Order, 2002 was not applicable to the case and provisions of Control of Narcotic Substances Act, 1997 were applicable thereto—According to S.21 of Control of Narcotic Substances Act, 1997, an officer not below the rank of Sub-Inspector of Police or equivalent would carry investigation in such a case—In the present case, Police Order, 2002 would have no role to play—Finding of the Trial Court, was set aside, in circumstances.

2011  PCrLJ  559   PESHAWAR-HIGH-COURT

UMAR DARAZ VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession and trafficking of narcotics—Bail, grant of—Further inquiry—Record had shown that charas was not recovered from the direct custody of accused persons—Whether accused persons had knowledge of the presence of contrabands on the roof top of the bus; and for that purpose they had shared their knowledge, was a question which would be determined after recording of evidence—Mere presence of accused persons, as driver and cleaner of said bus, was not sufficient for holding accused persons responsible for trafficking the recovered contrabands—Si.ch fact was a factual controversy, required recording of evidence and thus was a matter of further inquiry—Accused who were in the lock-up since 26-9-2010/date of their arrest, were thoroughly interrogated, investigation against them was complete, their further detention would serve no useful purpose to the prosecution—In view of the non-existence of reasonable grounds to connect accused persons prima facie with the commission of the offence, their case being that of further inquiry, was fit for considering their plea for their release on bail-Accused were allowed to be released on bail, in circumstances.

2011  PCrLJ  423   PESHAWAR-HIGH-COURT

Syed ZAMAN VS MUHAMMAD JAVED

Ss. 9, 32 & 74—Criminal Procedure Code (V of 1898), S.561-A—Possession of narcotics—Bar contained in S. 74, Control of Narcotic Substances Act, 1997—Scope—Petition for return of vehicle allegedly used in the offence—Counsel for the petitioner had contended that on the principle of analogy of S.32 of Control of Narcotic Substances Act, 1997 the vehicle in question should have been returned by the court to him; that the petitioner had no knowledge of the fact that the driver of the vehicle was using the same for trafficking of narcotics; and that the petitioner earned his livelihood from the said vehicle—Petitioner had provided documents pertaining to the vehicle in question to the Police—Petitioner had not been arrayed as an accused, which would indicate that the Investigating Agency had also admitted his claim—Bar contained in Proviso to S.74 of Control of Narcotic Substances Act, 1997 was not absolute and vehicle involved could be given in cases, where it could be, prima facie, held that the person claiming to be the owner had no knowledge that the vehicle was being used for narcotics—Allowing petition, High Court directed that the vehicle would be returned to the petitioner on furnishing bond.

2011  PCrLJ  342   PESHAWAR-HIGH-COURT

KASHIF NADEEM VS AIMAL KHAN

Ss. 517 & 561-A—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 32 & 33—Possession of narcotics—Confiscation of vehicle allegedly used in offence—Petition for quashing of confiscation order and return of vehicle—Treating petition as appeal—Accused were acquitted from the charges levelled against them, while vehicle allegedly used in the commission of offence was ordered by the Trial Court to be kept intact till expiry of appeal/revision period; and thereafter dispose of the same in accordance with law—Appellant/real owner filed application for custody of vehicle in question, but his application having been dismissed by the Trial Court said owner of vehicle filed petition under S. 561-A, Cr. P. C. for setting aside order of the Trial Court—Said petition was treated as appeal and was disposed of as such—Owner of vehicle in question, was not put on notice by the Trial Court as to why vehicle could not be confiscated—Prosecution during investigation also did not bother to trace out owner of said vehicle through its registration number—Owner of vehicle had lodged F.I.R. under S.381-A, P.P.C. at Police Station with regard to theft of vehicle—Provision of S.32 of Control of Narcotic Substances Act, 1997, permitted confiscation of vehicle only when it was proved that its owner had knowledge that the offence was being or was to be committed—In the present case, Trial Court, without any proper inquiry dismissed application of the owner, without complying with Ss.32 & 33 of Control of Narcotic Substances Act, 1997—Impugned order was set aside and case was remanded to the Trial Court to decide application of appellant/owner of vehicle in accordance with law.

2011  PCrLJ  277   PESHAWAR-HIGH-COURT

NASRULLAH VS State

Ss. 9(c), 25 & 29—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5—Criminal Procedure Code (V of 1898), S.103—Possession of narcotics—Appreciation of evidence—Recovery of contraband and registration documents and number plates of the vehicle from accused corroborated the prosecution story—Accused failed to explain plausibly the purpose of his journey in public/government vehicle without . permission of the officer concerned—No reason for false implication through planting huge quantity of contraband was alleged or established—Section 25 of the Control of Narcotic Substances Act, 1997 excluded the operation of S.103, Cr.P.C. in narcotic cases wherein recovery was made on highway, road side or from a moving vehicle—Rules 4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 placed no bar on the Investigating Officer to send the samples beyond/after 72 hours of the seizure, receive the Forensic Science Laboratory report after 15 days and place the report so received before the Trial Court—Rules 4 & 5 being directory and not mandatory, could not control the substantive provisions of the Control of Narcotic Substances Act, 1997 and the same had to be applied in such a manner that would not frustrate the purpose of the Control of Narcotic Substances Act, 1997—Failure to follow Rr.4 & 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 would not render the search, seizure and arrest under Control of Narcotic Substances Act, 1997 an absolute nullity—In the absence of any allegation of tampering with the contraband, delay would not affect the result of analysis—Accused failed to rebut the presumption of possession of illicit articles under S.29 of the Control of Narcotic Substances Act, 1997 and could not point out any illegality or non-reading or misreading of evidence warranting interference of High, Court in appellate jurisdiction—Appeal was dismissed in circumstances.

2011  PCrLJ  90   PESHAWAR-HIGH-COURT

TAJ AKBAR VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Contradiction existed in timing of lodging of the F.I.R. and the writing of Murasila etc.—Samples were sent to the Chemical Examiner with delay of about four days, which delay was not plausibly explained by the prosecution, which had made recovery doubtful—Vehicle from which the recovery had been made, was not produced by the prosecution in the court and the prosecution had failed to explain as to under what circumstances, they could not produce the vehicle in the court, which had further made case of prosecution doubtful—Trial Court had awarded the maximum punishment to accused on the basis of his confessional statement, which otherwise could not be termed as confession so far as recovery of narcotics was concerned—Accused, in his alleged confessional statement had never admitted that he had any knowledge about the narcotics or he was trafficking same from one place to another—Prosecution having failed to prove its case beyond reasonable doubt, conviction and sentence awarded to accused by the Trial Court vide impugned judgment, was set aside; accused was acquitted of all the charges against him and he was set free.

2011  PCrLJ  90   PESHAWAR-HIGH-COURT

TAJ AKBAR VS State

1. 9(c)—Qanun-e-Shahadat (10 of 1984), Art. 37—Criminal Procedure Code (V of 1898), S. 164-Possession of narcotics—Appreciation of evidence—Where confession appeared to be exculpatory and accused had shown his total ignorance about the concealment of narcotics in the vehicle, concealment of narcotics with conscious knowledge could not be attributed to the accused—Mere recovery of narcotics from a vehicle, would not automatically connect accused with contraband article, unless the prosecution succeeded in showing that he had conscious knowledge of the same—In the present case, narcotics were found ‘lying concealed in a vehicle, not discoverable on mere inspection of the vehicle in absence of special knowledge about its concealment, to recover it, mere presence of a person in such vehicle could not make him liable for conscious possession of such contraband articles—Prosecution was bound to show that presence of narcotics was within the knowledge of accused; or that he had such a connection with the vehicle which would make his presence in the vehicle as amounting to his conscious possession of such contraband articles lying concealed in the vehicle.

2011  MLD  958   PESHAWAR-HIGH-COURT

MUHAMMAD SIRAJ VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 21—Possessing and trafficking narcotics—Bail, grant of—Further inquiry—Arrest of accused had been effected by Assistant Sub-Inspector of concerned Police Station, whereas it was specifically mentioned in S.21 of Control of Narcotic Substances Act, 1997, that arrest without warrant would not be effected by a Police Officer below the rank of Sub-Inspector—-Narcotics, as per contents of F.I.R. were concealed in the secret cavity i.e. Petrol tank; and the material collected by the prosecution, did not ipso facto show that accused had conscious knowledge, about the said concealment of narcotics—Accused was merely travelling in the car in question, without having the conscious knowledge of the narcotics; and without having any connection with the ownership of said car—Accused, in circumstances, could not be blindly held responsible for anything concealed in the secret cavity, particularly in the absence of any proof of his ownership pertaining to the said car—Prima facie there existed no material to connect accused with the commission of offence in clear cut mariner—Investigation of the case had been completed; and it would serve no useful purpose if accused was any more retained in the lock up—Accused having made out a case of further inquiry, he was admitted to bail, in circumstances.

2011  MLD  708   PESHAWAR-HIGH-COURT

MAMRAIZ VS State

1. 9(c)—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.4—Possession of narcotics—Appreciation of evidence—Prosecution witnesses who had no nexus with the recovery of narcotics were not able to connect any piece of alleged recovered contraband with any of the accused—None of said witnesses was able to say as to how much quantity of incriminatory articles was recovered from each of accused—Investigating Officer in his statement admitted that he had not recorded statement of any person, who was carrying on business adjacent to the market which was raided upon—Omnibus recovery without any specific evidence, could not be attributed to any one of accused and they could not be held liable for recovery effected from different cabins—Evidence on record was also deficient as to the actual recovery from each cabin—Police, though had shown a huge quantity of incriminating articles which were tested positively by Forensic Science’ Laboratory but nothing of the same could be attributed to the accused persons—Convictions and sentences imposed upon accused, were set aside, they were acquitted from the charges levelled against them and were released.

2011  MLD  679   PESHAWAR-HIGH-COURT

MUHAMMAD WASEEM VS State

Ss. 9(c), 32 & 74—Criminal Procedure Code (V of 1898), Ss.516-A, 523-A & 561-A—Possession and trafficking narcotics—Application for superdari of vehicle allegedly used for the offence by the owner had been dismissed—Owner filed application for quashing of order of dismissal of application—Applicant who was bona fide purchaser of the vehicle for consideration had handed over the vehicle to driver for earning livelihood and was hired by the accused—Section 74 of Control of Narcotic Substances Act, 1997, related to release of vehicle temporarily on “superdari” during pendency of trial—Vehicle involved in the transportation of narcotics would not be released during trial, however, absolute bar could not be created for release of vehicle, if as per S.32 of Control of Narcotic Substances Act, 1997, it was prima facie established that owner of vehicle had no knowledge that narcotics had been transported in his vehicle—Judicial discretion could also be exercised for release of vehicle on “superdari”; in view of the principle that, if’ a court could grant final relief, it also possessed inherent jurisdiction to grant temporary relief, pending proceedings before it subject to prima facie fulfilling the condition by the applicant under the law for getting relief finally from the court—Tentative assessment of record would show that applicant was prima facie a genuine owner of vehicle; and if it was handed over to him on superdari; then keeping same in seizure condition for indefinite period waiting conclusion of trial against furnishing of heavy surety bonds, but subject to production of original documents of ownership, the same would be in the interest of justice–Anti-Narcotic Force was directed to hand over the vehicle in question to the applicant on superdari, till decision of the case, subject to production of documents of his title before Investigating Officer, who would verify the ownership and submit his report to the Trial Court.

2011  MLD  626   PESHAWAR-HIGH-COURT

NAEEM KHAN VS State

1. 9(c)—Trafficking of narcotics—Appreciation of evidence—Not only that the recovery of contraband charas had been proved by the prosecution through statements of the prosecution witnesses, but accused himself in his statement under S.342, Cr.P.C. had admitted the recovery of contraband narcotics—Accused being driver’ of the truck carrying contraband charas, was sufficiently connected with the crime who had a conscious knowledge of the contraband charas concealed in the secret cavities of truck—Impugned judgment of conviction and sentence passed by the Trial Court against accused, was maintained, in circumstances.

2011  MLD  487   PESHAWAR-HIGH-COURT

GHADEER HAIDER VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 21—West Pakistan Arms Ordinance (XX of 1965), S.13—Possession of narcotics and arms—Bail, grant of—Investigating Officer raided the store belonging to accused without obtaining search warrant under S.21 of Control of Narcotic Substances Act, 1997—Alleged recovery was neither made from the possession of accused nor on his pointation and was not effected in the presence of two respectable persons belonging to the same locality as required under S.103, Cr.P.C.—No statement of the test purchaser was recorded and no detail of the store and godown was provided in the recovery memo—Accused who was of tender age of about 17-1/2 years, could claim the concession of bail under Juvenile Justice System Ordinance, 2000—Accused had no previous record of involvement in such like cases—Case of accused having gone out of prohibition clause of S.497, Cr.P.C., accused was entitled to the grant of bail—Accused was released on bail, in circumstances.

2011  MLD  365   PESHAWAR-HIGH-COURT

SAFIR KHAN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, grant of—Further inquiry—Two Kg charas was allegedly recovered from accused—Case of accused was that of further inquiry while considering the quantum of recovery, as the punishment provided for the offence was always in commensurate with the quantum of recovery of contraband—Question as to whether accused would be liable to the maximum punishment provided for the offence, was a question requiring further probe—Punishment in case of proof of the guilt after trial, in circumstances, would fall under the prohibitory clause of S.497, Cr. P. C. as punishment provided in S.9(c) of Control of Narcotic Substances Act, 1997 varied according to the circumstances of the case—Court had discretion to punish accused in commensurate with the quantity of recovery—Concession of bail to accused, could be allowed unless any special circumstances appeared in any particular case, like the case of a habitual offender or previous convict etc.—Accused was released on bail, in circumstances.

2011  PLD  544   LAHORE-HIGH-COURT-LAHORE

Rana NASARULLAH VS State

1. 426(1-A)(c), proviso—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Trafficking of narcotics—“Hardened, desperate” and “dangerous” criminal—Connotation—Suspension of sentence, petition for—Scope—Accused had sought suspension of sentence on the ground of statutory delay in decision of appeal—Proviso` to` S.426(1-A)(c), Cr.P.C., provided that a person who in the opinion of Appellate Court was “hardened”, “desperate” and “dangerous criminal”, was not entitled to get benefit of suspension of sentence—“Hardened criminal” was one who had developed rigid behavioural pattern toughened through experience; and not likely to change—All those persons, who had become rigid and devoid of any compassion, could also be termed as ‘hardened’—Criminal could be considered “desperate”, if he was willing to take risk fearlessly out of helplessness and despair—“Desperate criminal” could commit an act as a last resort without realizing its consequences—“Dangerous criminal” connoted a person, who was able to cause harm and injury having horrible effects against the society—Gravity of offence of whatsoever nature, would bring an offender within the category of a “dangerous criminal “—No previous criminal history of accused was on record and he was a first offender, such accused, in circumstances, could not be termed a “hardened criminal”—Accused being involved in drug trafficking, he could not be considered a “desperate person” for the reason that commission of such an offence required pre planning and meditation—Circumstances of the case, however led the court to hold accused a “dangerous criminal”, as he was found in possession of a huge quantity of 15 kg. Charas; he seemed to be involved in drug trafficking at a large scale and had committed an offence which had a direct impact on the public at large, especially the young generation—Tendency of adopting drug trafficking as a profession was speedily increasing day by day and it was proving to be a great menace to the whole nation—To save innocent citizens to be the victim of drug traffickers, such tendency must be curbed; and persons involved in such like heinous offence should be dealt with iron hands—Case of accused, in circumstances, fell within the ambit of proviso to S.426(1-A)(c), Cr.P.C.—Accused was not entitled to be released on bail by way of suspension of his sentence.

2011  YLR  2318   LAHORE-HIGH-COURT-LAHORE

MUNAWAR BIBI VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Presence of accused persons at the place of occurrence and recovery of a huge quantity of narcotic substance “poast” was not denied—Said substance was found lying on a road side near the Bus Stop and accused persons were waiting for transporting the same, such could not be considered as a joint recovery to circumstances—Such was a case of joint possession and joint ownership—SPY information had indicated the female accused; and there being no ill-will or motive on the part of the Police to falsely implicate accused person in the case, there was no weight in the argument of counsel for accused that Police had substituted accused persons with the real culprit, had been let off by the Police–All the prosecution evidence, no doubt consisted of Police witnesses, but their testimony was considered as good as public witnesses; and non-application of S.103, Cr.P.C. in the case had got no implication; as S.25 of Control of Narcotic Substances Act, 1997, had excluded its application—All prosecution witnesses remained. consistent in their depositions and the defence was unable to shake their testimony during the cross-examination—No allegation of personal grudge or animosity was found against the prosecution witnesses to falsely implicate accused in the case—Head Constable, in his examination-in-chief deposed about delivery of samples of recovered narcotic substance to the office of the Chemical Examiner—Said prosecution witness was not cross-examined despite an opportunity was provided—Question of delay of 9 days in sending the samples of narcotic substance or substitution of the recovered material with some other material containing intoxicant, had become irrelevant—Huge quantity of 180 Kg. of “poast” having been recovered from accused persons by the Police, did not seem to be plausible—Though during the investigation, 8 persons appeared before the Investigating Officers in support of the defence version of accused, but none of said persons appeared before the court during the trial—None of said 8 persons being present at the place of occurrence, their statements were irrelevant for the purpose of determination of guilt or innocence of accused—Accused was found present at the place of occurrence in the company of co-accused at the time of raid, she was unable to prove that she was not associated with the co-accused—Prosecution had proved that said accused was associated with the co-accused—Co-accused was found in joint possession of the narcotic substance and was guilty of commission of offence falling under S.9(c) of Control of Narcotic Substances Act, 1997, in circumstances—Accused ladies had failed to make out a case of their acquittal—Trial Court, in circumstances, had rightly convicted and sentenced accused persons and impugned judgment of the Trial Court did not call for interference by High Court.

2011  YLR  2198   LAHORE-HIGH-COURT-LAHORE

GHALIB HUSSAIN SHAH VS State

1. 9(c)—Possession of narcotics–Appreciation of evidence—Huge quantity of narcotics was recovered from the vehicle of the accused—Accused had admitted their presence at the place of occurrence as well as the recovery of narcotics—Accused who was driving the vehicle was fully responsible for the narcotics being transported and smuggled through the vehicle—By virtue of S.25 of the, Control of Narcotic Substances Act, 1997, non-citing of a public witness in recovery proceedings was not fatal to prosecution case—Case was not against an individual, but it was against the society—Prosecution evidence had no material discrepancy and the impugned judgment did not suffer from any illegality—Conviction of both the accused was consequently maintained along with the sentence of imprisonment for life awarded to one accused—Death sentence awarded to other accused was reduced to imprisonment for life, as he was a first offender—Appeals were disposed of accordingly.

2011  YLR  2114   LAHORE-HIGH-COURT-LAHORE

LIAQAT HUSSAIN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing, import, export and trafficking of narcotics—Bail, grant of—Further inquiry—Accused was not present on the spot and he was not arrested when the alleged shopper in question containing charas was recovered by the Police from a public road; fact that it belonged to accused establishing his involvement, was a case of further inquiry which would be determined at the trial—Accused had been sent up to judicial lock-up and he was no more required in the case—Case being fit for extending the concession of bail to accused, he was directed to be released on bail, in circumstances.

2011  YLR  2023   LAHORE-HIGH-COURT-LAHORE

SHER ALI VS State

Ss. 9(c), 33, 39 & 48—Criminal Procedure Code (V of 1898), S.369—Possessing and trafficking narcotics—Confiscation of motorcycle—Application for seeking superdari of motorcycle—Dismissal of application holding that judgment qua confiscation could not be reviewed due to bar under S.369,  Cr.P.C.—Validity—Section 369, Cr.P.C. had precluded court of criminal jurisdiction to alter its judgment after it had been written, signed and pronounced, except  to  correct  a  clerical  error  and  even  it  also  would  apply  to  the  judgments rendered by High Court in exercise of criminal original jurisdiction—In absence of any infirmity in the impugned order passed  by  the  Trial  Court,  appeal  against said order was devoid of legal justification and was dismissed.

2011  YLR  1692   LAHORE-HIGH-COURT-LAHORE

ZAFAR IQBAL VS State

Ss.9(c) & 2(s), (t), (v) & (w)—Possessing narcotics—Appreciation of evidence—Counsel for the accused after having argued the case for his acquittal had confined himself for reduction in sentence of accused in view of the report of the Chemical Examiner—Twenty K.G. Poppy Heads had been recovered from the possession of accused—Sample of ten grams of the substance sent to the Chemical Examiner was found to be “Crushed poppy heads” which could be used to cause intoxication, as the same had traces of Morphine and Codeine—Under S.2(s) of the Control of Narcotic Substances Act, 1997, ‘narcotic drug’ meant Coca Leaf, Cannabis, heroin, opium, poppy straw and all manufactured drugs—Poppy straws were also included in the definition of ‘opium’ as provided under S.2(t)(i) of the said Act—Under S.2(w) ‘poppy straw’ were shown all parts except seeds of opium poppy after mowing—Poppy heads or poppy straw thus were narcotic drug and offences relating to them were punishable under the Act—However, poppy heads having traces of Morphine and Codeine, recovered from the accused, could not be equated with the actual substance popularly known as “Opium” or “heroin” etc. which contained much higher quantity of Morphine—Conviction and sentence of imprisonment for life awarded to accused were consequently maintained, but his sentence of fine was reduced from Rupees 2,00,000 to Rs. 50,000 only in circumstances.

2011  YLR  1506   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD IQBAL VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, grant of—Quantity of charas allegedly recovered from accused was slightly on the higher side of upper limit of S.9(b) of Control of Narcotic Substances Act, 1997—Accused was stated to be previous non-convict and he was behind the bars for the last about six months—Accused was admitted to bail, in circumstances.

2011  YLR  890   LAHORE-HIGH-COURT-LAHORE

HAYAT KHAN VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Very important link in the chain regarding the transmission of the sample was missing—No witness had appeared to prove the sending of the sample of allegedly recovered narcotic from the State Customs Warehouse to the Chemical Examiner’s Office—Samples taken could not be said to be the same and not tampered, and sent to the laboratory—Report of the Chemical Examiner showing one sample being `charas’ and the other being `Ganja’ could not be relied upon for ordinary conviction of accused—Report was the duplication of the original and it did not bear the signatures of the Chemical Examiner–Alleged narcotic substance was lying on the bus top and was recovered therefrom and could not be said to be in the possession of accused; and it could not be believed that a man of ordinary prudence sitting in a bus packed to its capacity would claim the ownership of the narcotic substance inviting the life imprisonment–Prosecution had failed to prove its case against accused beyond the shadow of doubt—Impugned judgment ordering the conviction and passing the sentence against accused was set aside—Accused was acquitted of the charge and was set at liberty.

2011  YLR  745   LAHORE-HIGH-COURT-LAHORE

NAWAB KHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, grant of—Case against accused was slightly on the higher side of upper limit of S.9(b) of Control of Narcotic Substances Act, 1997—Accused was stated to be previous non-convict and was behind the bars since 17-8-2010, the date of his arrest—Person of accused was no more required by the Police for the purpose of further investigation—Accused was admitted to bail, in circumstances.

2011  YLR  654   LAHORE-HIGH-COURT-LAHORE

ADAM KHAN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Possession of narcotics—Bail, grant of—Further investigation—Case against accused was slightly on the higher side of the upper limit of S.9(b) of the Control of Narcotic Substances Act, 1997—Accused was stated to be previous non-convict and was behind the ‘bars since 17-8-2010, date of his arrest—Accused was no more required by the Police for the purpose of further investigation—Accused was admitted to bail, in circumstances.

2011  YLR  584   LAHORE-HIGH-COURT-LAHORE

ASAD ULLAH VS State

1. 426—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Suspension of sentence, petition for—Accused had been sentenced to death with fine of Rs.5,00,000—Grounds agitated by the counsel for accused for suspension of sentence and admitting accused to bail, related to deeper appreciation of evidence, which could not be made at present stage—Petition was dismissed, in circumstances.

2011  YLR  569   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ASHIQ VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, grant of—Case against accused was slightly on the higher side of upper limit of the quantity of the narcotic as mentioned in S.9(b) of Control of Narcotic Substances Act, 1997—Accused who was stated to be previous non-convict was behind the bars for the last more than six months and was no more required by the Police for the purpose of further investigation—Accused was admitted to bail, in circumstances.

2011  YLR  503   LAHORE-HIGH-COURT-LAHORE

SHABBIR SHARIF KIANI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Car being driven by accused, in a door of which “charas” weighing two kilograms was conealed, was never produced in Court throughout the trial, despite having been taken into possession by the police—Prosecution had not explained as to how and in whose custody the parcel of sample of recovered “Charas” sent to Chemical Examiner, had remained for five days and which type of objection was removed by any of the officials—According to prosecution the sample parcel contained 50 grams “charas “, but the report of Chemical Examiner had revealed that “charas” weighing only 10 grams was received in his office—Sample parcels containing the substance to be sent to Chemical Examiner must be proved with certainty as to how and in which circumstances the same remained in possession of any of the officials at each and every stage of the proceedings in order to avoid the possibility of arising any doubt in that respect—Prosecution witnesses had contradicted each other regarding the description of the recovered substance—Defence version put forward by accused about his false involvement in the case seemed to be plausible—Prosecution case was replete with serious doubts, benefit of which had to be given to accused–Accused was acquitted in circumstances.

2011  YLR  503   LAHORE-HIGH-COURT-LAHORE

SHABBIR SHARIF KIANI VS State

S.9(c)—Possession of narcotics—Proper custody of articles to be proved—Parcels containing the substance to be sent to the office of Chemical Examiner for opinion about the contents thereof, must be proved with certainty as to how and in which circumstances the same remained in possession of any of the officials and each and every stage is to be explained with certainty, so that no doubt may arise in this respect.

2011  YLR  479   LAHORE-HIGH-COURT-LAHORE

ASIF ALI VS State

S.9(c)—Possession of narcotics—Appreciation of evidence—Confessional statement of a co-accused had established beyond doubt that the accused had been arrested from the Airport as alleged by the prosecution and heroin had been recovered from his possession—Mere denial and raising an unsubstantiated plea by the accused was not sufficient to disprove the evidence brought on record by the prosecution—Heroin had been recovered from the accused from the drop lane of the Airport and provisions of S.103, Cr. P. C. having been excluded by S.25 of the Control of Narcotic Substances Act, 1997, non-association of private witnesses with the recovery proceedings had no adverse or fatal effect on the prosecution case—Appeal was dismissed in circumstances.

2011  YLR  402   LAHORE-HIGH-COURT-LAHORE

ABDUL JABBAR VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 51—Possession of narcotics—Bail, grant of—700 grams of charas was allegedly recovered from the possession of accused and he was liable to be tried under S.9(b) of Control of Narcotic Substances Act, 1997, which did not fall within the prohibition contained in S.51 of Control of Norcotic Substances Act, 1997—Accused was behind the bars for the last four months and was not required by the Police for further investigation—Case being fit for grant of bail, accused was admitted to bail, in circumstances.

2011  PCrLJ  1817   LAHORE-HIGH-COURT-LAHORE

MOHSIN ABBAS VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 15—Possessing and trafficking of narcotic drugs—Bail, grant of—Quantity of the recovered narcotic substance exceeded one kilogram by 200 grams, which had made the case of accused, a borderline case—Accused was stated to be a previous non-convict and did not have any criminal antecedents—Challan had already been submitted before the Trial Court; and further incarceration of accused was of no consequence to the prosecution case—Accused was admitted to bail, in circumstances.

2011  PCrLJ  1710   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD LAWAL VS State

7. 9(c)—Smuggling of narcotics—Appreciation of evidence—Accused having denied the recovery of narcotics from him could not object to the quantity and the sample sent for chemical examination—Keeping of the recovered material in safe custody and delivery of the same in the office of Chemical Examiner on the same day was duly proved on record—Forwarding of the sample to Chemical Examiner within two days of its recovery could not be said to have been delayed—Recovery witnesses had no ill-will or animosity against the accused—Accused had been proved to carry heroin weighing 7.250 kilograms in his suit case concealed in Glue Sticks, by confidence inspiring evidence with an intention to smuggle the same—Sentence of 14 years’ R.I. awarded to accused was not excessive in view of the nature and quantity of the recovered narcotics—Appeal was dismissed accordingly.

2011  PCrLJ  1593   LAHORE-HIGH-COURT-LAHORE

IMTIAZMASIH VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence–Recovery of 235 Kg of “Charas” and 7 Kg of opium from the possession of the accused while travelling in a car, had been proved by the consistent testimony of the police officers—Discrepancies in the recovery evidence in time, manner and arrest of accused, being of minor nature, could not destroy the evidentiary value of recovery witnesses—Contention that despite having received prior information complainant police officer had not associated any public witness with the recovery proceedings, was not sustainable as S. 25 of the Control of Narcotic Substances Act, 1997, had excluded the application of S. 103, Cr.P.C. to such cases—Even otherwise, police now-a-days could not possibly associate any public witness in such like cases, as people generally would not cooperate with the police due to fear of earning any enmity with the drug paddlers—In view of the bare denial of the recovery of the narcotics by the accused, they could not object to the insufficiency of sample of ten grams of each narcotic, sent to Chemical Examiner—Reports of Chemical Examiner, therefore, had been rightly believed by Trial Court—Police Officer who would arrest the accused and recover the narcotic substance from them naturally had to act as complainant and investigation had to be carried out there and then–Unless actual prejudice was proved to have taken place on account of the said duel function of the police officer, trial could not be taken as vitiated—Convictions and sentences of accused were upheld in circumstances.

2011  PCrLJ  1593   LAHORE-HIGH-COURT-LAHORE

IMTIAZMASIH VS State

1. 9(c)—Possession of narcotics—Dual charge of police officer—Police officer is not legally prohibited to be a complainant, if he is a witness to the commission of the offence and also to be an Investigating Officer, so long as it does not in any way prejudice the accused.

2011  PCrLJ  1466   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD BAKHSH VS State

1. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Benefit of doubt—During investigation, it transpired that alleged Charas recovered from the possession of accused, was in fact owned by another person and accused was simply a carrier having received rent for transportation of the load of the camel—Seventeen packets containing Charas were allegedly recovered from possession of accused, but only 10-grams were separated for analysis through Chemical Examiner by mixing small quantity from all the packets—As from all the packets the Charas was not separated for analysis, so it could not be ascertained that all the packets contained Charas—Report of Chemical Examiner placed on record was duplicate one, which was contrary to mandatory provisions of S.510, Cr.P.C.—Prosecution did not prove the report of Chemical Examiner by examining the Chemical Examiner as a witness—Report of Chemical Examiner had also shown that it pertained to other case which, created doubt regarding its genuineness—Prosecution having failed to prove its case beyond any reasonable doubt, accused was acquitted by giving hint benefit of doubt.

2011  PCrLJ  759   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ASLAM VS State

1. 9(c)—Possession of narcotic drugs—Appreciation of evidence—Recovery of narcotic drugs from the possession of accused had been proved by cogent and confidence-inspiring evidence—Report of Chemical Examiner qua the said narcotics was positive—No case had been filed earlier by the accused or his father against the prosecution witnesses of the case—Accused was involved in 21 cases of the similar nature—Accused involved in such like cases were not only defaming the image of the country, rather were making the young generation of the country addict of narcotic drugs and they deserved to be dealt with iron hands—Conviction and sentence of death of accused were affirmed in circumstances.

2011  PCrLJ  573   LAHORE-HIGH-COURT-LAHORE

ATTIQ-UR-REHMAN VS State

1. 9(c)—Transporting etc. of narcotic drugs—Sentence—Mitigating circumstances suggested.

2011  PCrLJ  573   LAHORE-HIGH-COURT-LAHORE

ATTIQ-UR-REHMAN VS State

1. 9(c)—Transporting narcotic drugs—Appreciation of evidence–Sentence, reduction in—Huge quantity of “Charas” and opium had been recovered from the secret cavities of the vehicle being driven by the accused—Prosecution evidence was consistent, unbiased and confidence inspiring—Recovery witnesses were not alleged to have any animosity against the accused—Report of Chemical Examiner in respect of recovered material was positive, which prima facie had connected the accused with the offence—Statements of police officials were as good as those of public witnesses, which inspired confidence—Defence evidence was not creditworthy—Conviction of accused was upheld accordingly—However, accused was the first offender having no criminal record of similar nature to his credit—Contraband “Charas” and opium were not so lethal as heroin—Sentence of death awarded to accused was reduced to imprisonment for life in circumstances, to meet the dictates of justice.

2011  PCrLJ  221   LAHORE-HIGH-COURT-LAHORE

MUM ULLAH KHAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Police Officials were as good witnesses as any other public witness; their statements could not be discarded merely on the ground that they were Police Officials—Charas weighing 133 Kgs. was recovered from the secret cavities of the car on pointation of the accused—Driver on a long journey was supposed to have knowledge of the goods on board— Plea of false implication was not substantiated by any cogent evidence—No illegality, irregularity, misreading or non-reading of evidence could be pointed out in the finding of guilt recorded against the accused—Appeal was dismissed in circumstances.

2011  MLD  1865   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SHEHZAD VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing narcotic drug—Bail, refused of—Previous bail application filed by accused in High Court had been withdrawn by his counsel after arguing the same at full length—Huge quantity of “charas” weighing six kilograms had been recovered from the accused—Challan had been submitted in the court—Accused was not entitled to the relief of post-arrest bail at present stage—Bail was declined to accused in circumstances.

2011  MLD  1070   LAHORE-HIGH-COURT-LAHORE

Mst. RAFAQAT BIBI VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51—Sale of narcotic drug—Bail, refusal of—Accused had allegedly committed an offence under S. 9(c) of the Control of Narcotic Substances Act, 1997, punishable inter cilia with death—Provisions S.497, Cr.P.C. were not applicable to such offences by virtue of S.51 of the said Act—Sample of one gram heroin taken out of a lot of 1500 grams heroin recovered from the possession of accused was deemed to be sufficient by the Chemical Examiner for analysis, who had given a positive report in this regard—Nothing was shown on behalf of accused that the local police was against her—Such a big quantity of heroin could not be possibly planted on the accused for her false involvement in the case—Drug paddlers had also started associating women and even kids with their business of deadly narcotics, considering that law had soft corner for them—Accused was caught red-handed with huge quantity of heroin—Non-existence of any criminal record against the accused or her family was no ground to grant her bail—Trial of accused was in progress—Bail was declined to accused in circumstances.

2011  PLD  633   KARACHI-HIGH-COURT-SINDH

AKIF SHOAIB VS PROVINCE OF SINDH through Secretary, Home Department, Karachi

Ss. 3, 6, 9 & 12—Control of Narcotic Substances Act (XXV of 1997), S.9—Constitution of Pakistan, Art.199—Constitutional petition–Possessing narcotics—Arrest and conviction of accused persons in a foreign country—Transfer of convict to Pakistan—Accused persons who were arrested, tried on the charge of possessing different quantities of heroin and were convicted for imprisonment for life in `Srilanka’ had been repatriated to Pakistan to serve out the sentence—Contention of convicts was that they had already undergone the maximum sentence which could be imposed upon them in Pakistan, had they been apprehended, charged and tried for the similar offence in Pakistan—Held, to claim benefit of such transfer, there had to be a treaty for mutual transfer for offenders between Pakistan and Srilanka, which existed and had provided that the offenders, who were tried in one country, could be transferred to the other country to undergo the remaining portion of their sentence—Irrespective of the severity of sentence awarded to a convict in the country of crime and conviction, on being transferred under bilateral arrangement to Pakistan, such convict was entitled to undergo such sentence as was compatible with the laws of Pakistan—Compatibility of sentence could only be adjudged and determined by the court of competent jurisdiction in Pakistan—Under Transfer of Offender Ordinance, 2002, enforcement of the sentence of the imprisonment that was imposed on any offender, who was transferred to Pakistan, was to be governed by the laws of Pakistan; and in case the duration of .the sentence of imprisonment inflicted on any offender that could be transferred to Pakistan by a country having signed bilateral treaty for the transfer of offender was incompatible with any law of Pakistan; theca the court of competent jurisdiction could examine and make it akin to the sentence that could be awarded for the similar crime as in vogue in Pakistan—Offender who was transferred to Pakistan in terms of S.9 of Transfer of Offenders Ordinance, 2002, was entitled to be given benefit of remission of sentence as per laws in force of the country of conviction up to the date of transfer to Pakistan—On transfer, such convict was also entitled to the benefit of remission in left over sentence or pardon as could be declared by the President of Pakistan; or by any other Authority under any law in Pakistan.

2011  YLR  2760   KARACHI-HIGH-COURT-SINDH

WAHEED RAZA PATHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(a)(c)—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4—Possession of narcotic drugs, manufacture, etc. of intoxicants, owning or possessing intoxicants—Bail, grant of—Benefit of doubt—Police must have associated some private person as witness to the alleged raid and recovery—Delay in forwarding the sample of the suspected substance to the Laboratory remained unexplained—Contradictory statement as to the arrest of the accused and place of recovery made by the Station House Officer in his Press Conference raised doubts as to the guilt of the accused—Benefit of doubt should go to the accused even at bail stage—Bail was granted.

2011  YLR  2477   KARACHI-HIGH-COURT-SINDH

REHMATULLAH VS State

Ss. 6 & 9—Possessing and trafficking of narcotics—Appreciation of evidence—‘Benefit of doubt—Co-accused was apprehended on the sole ground that he was sitting next to the driver of bus in question—Apart from that allegation no other cogent material was produced to connect said accused with the case—Statement recorded under S.342, Cr. P. C. showed that co-accused had categorically stated that he was coming from place ‘Q’ to place ‘K’ for treatment as he was above 70 years of age and could not see properly—Charas in question though was recovered from said bus, but, it was not proved that accused had any connection with the alleged crime—No objectionable item was recovered from possession of said accused and it was admitted fact that bus in question was a passenger bus and there was doubt about the accused whether he was travelling in the bus as a passenger or had any connection with the said crime—Connection of said co-accused with the case appeared to be highly doubtful in view of fact that bus was a passengers carrying bus and there were other passengers also therein—Prosecution, in circumstances, had failed to connect said accused through any convincing evidence that he had any exclusive knowledge of the concealment of narcotics in the bus to connect co-accused with the ownership of the bus—Prosecution had failed to connect co-accused with the ownership of the bus to bring home its case so far as the role of co-accused was concerned—Co-accused was acquitted from the charges and was released extending him benefit of doubt, in circumstances.

2011  YLR  2477   KARACHI-HIGH-COURT-SINDH

REHMATULLAH VS State

Ss. 6 & 9—Possessing and trafficking of narcotics—Appreciation of evidence—Sentence, reduction in—Accused who was driving the bus in question, was asked to stop the bus, but he instead of stopping the same raised the speed and tried to escape from the scene; and in order to make his escape good, he hit a motorcycle and injured the motorcyclist—No convincing material had been produced by accused denying the fact as to how it was possible that he was not having any knowledge about the charas present in the bus, which he was driving—Not believable that the driver had no idea or knowledge about the contents and articles being transported by him or present in the bus, which he was driving—Case of the prosecution against accused, was based upon the appraisal of the evidence, supported with reasons placed on record–No evidence was produced by accused to show misreading and omission from consideration of the evidence—Items recovered front the vehicle in possession of the driver’ were presumed to be assenting to be in his control and in his knowledge—If the drugs were secured from the possession of accused, then it was normally believed that he had a direct relationship with the drugs; and the burden of proof that he had knowledge of the same lay heavily on him—Prosecution was able to bring home the case so far as the role of accused (driver) was concerned—In the present case, out of 260 Kg. charas, only 1200 grams was sent for chemical examination–No sample was taken from the packets except the one sent for chemical examination—Accused, in circumstances, could be hauled up only to the extent of drugs sent for chemical examination only, as no evidence was on record that balance item was also charas; as no sample was drawn from the other packets alleged to be charas—Sentence awarded to accused was reduced from life imprisonment to sentence already served by him—Jail Superintendent was directed to work out the remaining sentence of accused; and if he had already served his sentence, then, accused was to be released.

2011  YLR  2356   KARACHI-HIGH-COURT-SINDH

NISAR AHMED VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession, import or export and trafficking of narcotic—Bail, grant of—Witnesses were not taken from the public, though available, with no legal excuse-Mashirs were Police Officials taken out of the same Police party—Seizing Officer was the complainant, whereas the Mashirs were his subordinates—No expert report was available, either in the record or with the State Counsel, it could not be said, in circumstances that the sample (charas), if dispatched to the expert for test, had been found as narcotic substance—Benefit of such aspect would go to accused, specially in the case of a tentative assessment of like nature—Charge had been submitted without expert report—Evidence and the story, both revolved around the Police Officials and the guilt of accused was subject to proof—State Counsel conceded and did not oppose the request of bail of accused—Bail, was granted to accused, in circumstances.

2011  YLR  2349   KARACHI-HIGH-COURT-SINDH

IRFAN ALI VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9—Recovery of norcotics—Bail, grant of:–Further inquiry—No expert report was available in the case—When Chemical Examiner’s report in affirmative, was not available in the case, the case would carry a status of further inquiry; and on such score alone the benefit of bail could be extended to accused in the interest of justice—Accused was granted bail, in circumstances.

2011  YLR  2335   KARACHI-HIGH-COURT-SINDH

MAQSOOD ZAMAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(b), (c)—Possession of narcotics—Bail, grant of—Deeper evaluation of evidence at bail stage had to be avoided—Accused had been arrested from a thickly populated area, but no private person had been associated with the arrest and recovery proceedings—F.I.R. did not show that Police after recovery of “charas” from the accused had weighed the same—Recovered material had been sent to Chemical Examiner for examination after an unexplained delay of eleven days—“Charas” weighing 1050 grams had allegedly been recovered from the accused, which had marginally exceeded 1000 grams—F.I.R. had been registered against the accused under S.9(b) & (c) of the Control of Narcotic Substances Act, 1997—Case of accused being a border line case required further inquiry—Accused was admitted to bail in circumstances.

2011  YLR  2327   KARACHI-HIGH-COURT-SINDH

QAMAR HUSSAIN VS State

1. 497— Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Possession of narcotics—Bail—Assessment of evidence— Principle— Deeper appreciation of record at bail stage cannot be made and only tentative assessment thereof is permissible just to find out whether the accused is prima facie connected with the offence or not.

2011  YLR  2327   KARACHI-HIGH-COURT-SINDH

QAMAR HUSSAIN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Possession of narcotics—Bail, grant of—Further inquiry—Prosecution must have associated some private person as witness during the entire process of apprehending and recovering the heroin—No private person was associated as witness while preparing first memo of arrest at the spot—Second memo had been prepared after four days after recovery of capsules containing heroin from the stomach of accused and that too without joining a private witness—No plausible explanation had been furnished by the prosecution in this regard—Perusal of F.I.R. and Chemical Examiner’s report had shown a discrepancy in the weight of the recovered heroin—Offence did not fall within the prohibitory clause of S.497(1), Cr.P.C.—Case against accused required further inquiry in terms of S.497(2), Cr.P.C.—Accused was admitted to bail in circumstances.

2011  YLR  2327   KARACHI-HIGH-COURT-SINDH

QAMAR HUSSAIN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Possession of narcotics—Bail—Further inquiry—Private persons not associated in recovery proceedings=– Effect— Despite earlier information respectable persons of the locality were not associated in recovery proceedings carried out against the accused—Allegations against the accused needed further inquiry.

2011  YLR  2316   KARACHI-HIGH-COURT-SINDH

NASIR KHAN AFRIDI VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, grant of—Further inquiry—Police, despite acting on spy information while arresting the accused from a thickly populated area, had not associated any private witness with the recovery proceedings—Where despite earlier information respectable persons of the locality were not associated in recovery proceedings carried out against the accused, the allegations against him would need further inquiry—Quantity of 1150 grams of “charas” allegedly recovered front the accused had marginally exceeded the limit of 1000 grams, which was a border line in between clause (b) and clause (c) of S.9 of the Control of Narcotic Substances Act, 1997, and this aspect also needed further probe to determine his guilt—Deeper appreciation of record could not be made at bail stage and only the prima facie connection of accused with the commission of offence had to be seen—Case of accused required further inquiry as contemplated under S.497(2), Cr.P.C. in circumstances and he was allowed bail accordingly.

2011  YLR  2316   KARACHI-HIGH-COURT-SINDH

NASIR KHAN AFRIDI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail—Assessment of material on record—Principle—Deeper appreciation of the record at bail stage, cannot be gone into, but only it is to be seen as to whether the accused is prima facie connected with the commission of the offence or not.

2011  YLR  2305   KARACHI-HIGH-COURT-SINDH

NADIR KHAN VS State

1. 9(c)—Control of Narcotic Substances (Government Analyst) Rules, 2001, R.4(2)—Possessing and trafficking narcotics—Appreciation of evidence—Narcotic substances allegedly recovered from possession of accused, was received in the laboratory within less than 72 hours as provided under R.4(2) of Control of Narcotic Substances (Government Analyst) Rules, 2001—Contention that since complainant/Sub-Inspector Police was himself Investigating Officer, entire proceedings were vitiated, was repelled, because Police Officer was not prohibited under the law to be a complainant, if he was a witness of an offence and such Officer could also be an Investigating Officer, so long as it did not prejudice the accused—Accused having rightly been convicted and sentenced by the Trial Court, appeal was dismissed.

2011  YLR  2261   KARACHI-HIGH-COURT-SINDH

MUHAMMAD SADDIQUE VS State

25. 9(c)-Criminal Procedure Code (V of 1898), S.166(1)(4)—Police Rules, 1934, Rr.25.3 & 25.4—Possessing and trafficking of narcotics—Appreciation of evidence— Defective investigation—Complainant/S.H.O. after information about the presence of accused at the spot proceeded to the spot (which was a Bus stop), after travelling 20 Kms. to the jurisdiction of another Police Station, without informing the S.H.O. of said other Police Station—Complainant (S.H.O.) arrested accused with the contraband while he was sitting at the said Bus stop, which was indigestible—S.H.O. himself became the complainant and registered F.I.R. at the area Police Station, but said S.H.O. neither recorded statements of the prosecution witnesses nor conducted investigation; and without any legal order handed over the copies of the F.I.R. to the complainant who brought the same to his own Police Station, allegedly on the oral orders of PDSP; and himself conducted the investigation and submitted the challan—Such appeared to be mala fide and illegal, which could not be sustained in law as he had violated the procedure given in the Criminal Procedure Code, 1898 as well as in Police Rules, 1934—Complainant should avoid conducting the investigation himself—In the present case mala fide was apparent—Out of two attesting witnesses only one was produced in the court, which was also oversighted by the Trial Court—Where the complainant conducted the investigation, the court must examine both the attesting witnesses as that was the requirement of the law; and the court should also satisfy itself of the facts of the case when said cases were punishable with death or imprisonment for life—Trial Court should be cautious as capital punishment could not be awarded in such peculiar circumstances—All the proceedings conducted by the complainant/ Investigating Officer, were illegal and subsequent proceedings conducted by the Trial Court were also illegal—Impugned order was set aside in circumstances.

2011  YLR  2259   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AKBAR VS State

1. 498-A—Control of Narcotic Substances Act (XXV of 1997), Ss. 6/9(c)-Possessing and trafficking of narcotics—Protective bail, grant of—Counsel for accused had contended that accused was innocent and had been falsely implicated in the crime by the prosecution; that name of father of accused was also different; that Police was causing harassment to accused; and that there was serious apprehension that accused would be arrested—Counsel had further stated that it was learnt that non-bailable warrants had been issued against accused, who himself wanted to surrender before the Trial Court and to face trial and that accused had thrown himself at the mercy of the court—Court, without touching the merits of the case, admitted accused to protective bail for seven days, in circumstances.

2011  YLR  2026   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AFZAL VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9—Prohibition of possession of narcotic drugs etc.—Bail, refusal of—Further inquiry—Charas in question was recovered from the Jeep which was driven by accused and the co-accused, who was alleged to be the driver of accused—Samples of charas had been taken from each packet—Was yet to be seen in the trial whether accused had been falsely implicated due to some political enmity which required evidence; and at bail stage only tentative assessment was to be made by the court—At bail stage it could not be said that accused had been falsely implicated in a false case—Accused having failed to make out a case for further inquiry, their bail application was dismissed.

2011  YLR  1723   KARACHI-HIGH-COURT-SINDH

GHULAM ABBAS VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(b)(c)—Possession of narcotics—Bail, grant of—Further inquiry—Complainant party despite receiving the alleged spy information, had failed to associate any private witness to attest the alleged recovery of charas; and no purchaser of the charas in question had been cited in the F.I.R., though accused was allegedly selling the charas—Case of accused, in circumstances, needed further inquiry—F.I.R. did not show as to how much pieces, out of recovered charas, were sent for chemical examination—Total quantity of alleged charas being 1100 grams, marginally exceeded to the borderline, falling between the offence under S.9(b) & 9(c) of Control of Narcotic Substances Act, 1997—Accused who was in jail since 19-11-2009 after his arrest, was granted bail, in circumstances.

2011  YLR  1699   KARACHI-HIGH-COURT-SINDH

ARBAB VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)(c)—Possession, import or export and trafficking of narcotics— Bail, grant of— F.I.R., did not show  as  to  what  was  the  weight  of  one piece of charas recovered from accused; and whether the samples were taken from one piece or from the both—Chemical Examiner’s report had shown that only one sample was received—Contention of counsel for accused needed consideration that  accused  was  liable  for  only  one  piece  of  charas  allegedly  recovered   from  his  possession;  and  same  would  fall  at  the  most  under  S.9(b)  of  Control  of  Narcotic  Sub-stances Act, 1997—Delay of about ten days  in  sending  the  sample  to  Chemical Examination without any explanation for such  delay—Accused  was  in  jail  since  27-6-2010—Accused was admitted   to   bail,   in   circumstances.

2011  YLR  1526   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ISMAIL VS State

7. 9(c)-Prohibition of possession, import or expert and trafficking of narcotic drugs—Appreciation of evidence–Recovered charas weighing 7.2 kgs., which was sealed at the time of arrest of accused and duly produced in the court was not de-sealed during trial and was not shown to the witnesses—No suggestion was made by ” the counsel for accused during cross-examination that it was not the same bag; or that the bag did not contain the recovered charas—No evidence was available to the effect that the bag was not sealed; and signatures of Excise official and masheers were not present on the bag at the time of trial—No material contradiction existed in the evidence of the witnesses; and there was no doubt created from minor contradictions as to recovery and possession of the contraband/narcotics from accused—No doubt as to enmity or hostility existed between the Excise Police and accused to falsely implicate. him by foisting such huge amount of charas upon’ him; in a bus full of passengers—Counsel for accused had also failed to point out any irregularity or impropriety as to weight of charas, taking samples from the eight patties, sending the same to the Chemical Examiner and findings of the Chemical Examiner—Prosecution case could not be dismissed on the ground that the investigation was conducted by the complainant as no separate wing of “Investigation” existed in the Excise Department—Investigating Officer was not alleged to be motivated against accused and there was no allegation that accused was prejudiced due to his action–Prosecution had proved its case against accused beyond any shadow of doubt—Counsel for accused had failed to point’ out any error of law or misreading of evidence in the impugned judgment of the Trial Court—No case had been made out by accused whereby appeal could be allowed or sentence awarded by the Trial Court could be reduced—Appeal was dismissed.

2011  YLR  1483   KARACHI-HIGH-COURT-SINDH

KHAN MUHAMMAD VS State

Ss. 6 & 9(c)—Prohibition of possessing and trafficking of narcotics—Appreciation of evidence—Prosecution had examined only two Police Officials—Car claimed to have been used for transportation of the narcotics was owned by one, who had not been examined—No explanation was offered for non producing and non-examination of said owner of car–Discrepancies were found with regard to the chassis number; of the car alleged to have been used in the crime—Impugned judgment, in circumstances, was not sustainable in law–Burden was upon the prosecution to prove charge against accused beyond reasonable doubt; and law presumed an accused innocent till proved guilty beyond reasonable doubt—Material contradictions existed in the deposition of the two prosecution witnesses—Evidence of both the prosecution witnesses on the seizure of narcotics/samples secured from the spot had material contradictions, which were sufficient to hold that the prosecution had failed to prove the case against accused beyond reasonable doubt—Impugned order passed by Special Court, was set aside, in circumstances.

2011  YLR  1435   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AKRAM VS State

1. 9(c)—Possession of narcotic drugs—Appreciation of evidence—Defence evidence—Charas weighing 10 kilograms and heroin weighing 8 kilograms were recovered from both the accused–Trial Court convicted both the accused under S.9(c) of Control of Narcotic Substances Act, 1997, and sentenced them to 14 years imprisonment and fine—Plea raised by accused was that their defence evidence was not considered by Trial Court—Validity—After arrest of accused persons neither any complaint nor any application was moved by them or their relatives against complainant–Documents produced by one of the accused with his statement under S. 342 Cr.P.C. pertained to years, 1999 and 2000, whereas offence was committed in year, 2004, much after the petition was filed by a relative of one accused and prosecution witnesses were not party in those proceedings—Prosecution witnesses could not be disbelieved who had given consistent evidence on each and every aspect of the case—High Court declined to interfere in conviction and sentence awarded to accused by Trial Court—Appeal was dismissed in circumstances.

2011  YLR  1411   KARACHI-HIGH-COURT-SINDH

NASRULLAH VS State

Ss. 6 & 9(c)—Prohibition of possession of narcotic drugs—Appreciation of evidence—Contention of accused was that as 150 grams charas was sent from 15 bundles weighing 15 kgs., case of accused fell under S.9(b) and not under S.9(c) of Control of Narcotic Substances Act, 1997–Further contentions were that firstly, 150 grams of charas and then remaining contraband (charas) was sent for chemical examination and same was positive; such despatch of charas in two lots was with mala fide intention and ulterior motive; that second report being managed one, had no value in the eyes of law having been sent without approval of the Trial Court, but on directions of District Public Prosecutor—Validity—Held, in the first instance 150 grams of charas was sent for chemical examination, report in respect thereof was positive; in the second phase remaining contraband (charas) was sent for chemical examination, report in respect thereof was also positive—Counsel for accused was unable to show that accused had ever challenged before any court of law that recovered article was not narcotics—Even in the appeal, appellant had not alleged that the recovered item was not narcotics—No reason existed to interfere with the impugned judgment passed by the Trial Court—Appeal was dismissed.

2011  YLR  997   KARACHI-HIGH-COURT-SINDH

RIAZ ALI alias RAJOO VS State

1. 561-A—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Quashing of proceedings—Application for—Case was pending in the court of competent jurisdiction and it was for that Court to decide the case after evaluating and appraising evidence; and the prosecution be given a chance to adduce its evidence—Frequent exercise of inherent jurisdiction contemplated under S.561-A, Cr.P.C. was deprecated—Application for quashment was dismissed in circumstances.

2011  YLR  961   KARACHI-HIGH-COURT-SINDH

NOOR MUHAMMAD LUHAR VS State

1. 9(b)(c)—Possession of narcotics—Appreciation of evidence—Accused contended that Mashirnama having not mentioned whether the sample of 500 grams of contraband was taken out of all eleven packets or not, such sample would be deemed to have been taken out of only one packet attracting S.9(b) and not S. 9(c) of the Control of Narcotic Substances Act, 1997—Validity–Accepting accused’s plea, High Court altered conviction of accused from under S.9(c) of the Control of Narcotic Substances Act, 1997 to the one under S.9(b) of the Act.

2011  YLR  858   KARACHI-HIGH-COURT-SINDH

NAEEM VS State

1. 497(2)—Control of Narcotic Sub-stances Act (XXV of 1997), S.9(e)—Possession of narcotics—Bail, grant of—Further inquiry—Deeper appreciation could not be gone into at the bail stage, but only tentative assessment was to be glade just to find out as to whether accused was connected with the commission of offence or not—Accused was in custody of the Police ever since 19-3-2010 and he had been implicated in the case on 22-3-2010—No private witness was associated at the time of arrest of accused, though his arrest had been shown from a thickly populated area—Weight of the substance was only 1100 grams and it was yet to be seen as to whether provisions of S.9(b) of Control of Narcotic Substances Act, 1997 would be attracted or 9(c) thereof would apply—Since delay was in sending the sample to Laboratory, benefit of such delay on the part of prosecution was to be extended to accused—Case being that of further inquiry in terms of S.497(2), Cr. P. C., accused was admitted to bail, in circumstances.

2011  YLR  669   KARACHI-HIGH-COURT-SINDH

MANZOOR AHMED VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Counsel for accused did not press the appeal on merits and prayed. that impugned sentence and fine be reduced to that of already undergone by accused—Out of total sentence of five years and two months awarded to accused, he had served out sentence of three years, seven months and twelve days, including remission—Accused was first offender and claimed to be the sole bread earner of his family—Sentence awarded to accused was modified to that of already undergone by accused—Accused was ordered to be released, in circumstances.

2011  YLR  563   KARACHI-HIGH-COURT-SINDH

RAJIB ALI VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Investigating Officer could neither explain the standard/ formula employed by him to separate samples from bars allegedly recovered from accused and nor could he disclose the quantity of charas taken from each bar—Chemical Examiner’s report contra­dicted Investigating Officer’s statement as to quantity of charas sent for analysis to the laboratory—Investigating Officer never produced in the court the charas that was not used in analysis and was returned to him by the Chemical Examiner–Investigation was conducted dishonestly to favour the accused who was a Police Official—Prosecution failed to prove its case beyond reasonable doubt—Appeal was accepted.

2011  YLR  519   KARACHI-HIGH-COURT-SINDH

MUHAMMAD YASEEN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—No material contradiction, improvement or exaggeration was observed in evidence of prosecution witnesses who remained consistent and unshattered—Accused failed to establish hostility or grudge on the part of the raiding party of the Anti-Narcotics Force to implicate him falsely—Report of Chemical Examiner was positive—Travel documents recovered from accused a first offender, proved his presence at the airport—Trial Court had already taken a lenient view while awarding sentence to the accused following guidelines set by Supreme Court in cases of first offenders—Judgment of Trial Court being well-reasoned and comprehensive, did not warrant interference—Appeal was dismissed in circumstances.

2011  YLR  329   KARACHI-HIGH-COURT-SINDH

YOUSIF KHAN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(b)(c)—Possession of narcotics—Bail, grant of—Further inquiry—Uncertainty had arisen as to whether clause (b) or clause (c) of S.9 of the Control of Narcotic Substances Act, 1997 was attracted in the case—Recovery of considerable sum of money from accused did not imply that the money was sale proceeds of charas—Discrepancy In the Chemical Examiner’s report necessitated further inquiry in terms of S.497(2), Cr.P.C.—Accused was admitted to bail in circumstances.

2011  YLR  268   KARACHI-HIGH-COURT-SINDH

DOST MUHAMMAD VS State

Ss. 9(c) & 25—Appreciation of evidence—Sentence, reduction in—Possession of narcotics—Officials as recovery witnesses—Failure to return wrappers of samples—Ailment of accused—Reduction in sentence—Accused was arrested during raid and 58 kilograms of Chars in a packing of one kilogram each was recovered from his possession–Investigating officer took 10 grams from each packet as sample and sent the same for chemical examination—Accused was convicted and sentenced for life imprisonment—Plea raised by accused was that no public witness was associated at the time of recovery and wrappers in which samples were packed were not returned by Chemical Examiner—Validity—Nobody was available at the spot at the time of arrest and recovery from accused—Investigating officer had rightly made Masheers from the members of raiding parties—Once it had been mentioned in Chemical Examiner’s report that samples were consumed during test, the wrappers containing samples, being empty, were not required to be sent back by Chemical Examiner—Presence of accused on motorcycle along with sack of 58 bags each containing one kilogram of Chars and apprehension by Anti Narcotic Force officials was not denied specifically by. accused—Accused, in his statement under S. 342, Cr.P.C., had stated that Chars was not his property and had been foisted upon him by police—Prosecution proved the guilt of accused beyond reasonable doubt and had successfully discharged its burden through consistent and confidence inspiring evidence—High Court did not find any illegality or infirmity in the judgment passed by Trial Court warranting interference in appeal—Accused was diabetic which resulted in amputation of his right leg, therefore, keeping in view the ailment of accused High Court reduced quantum of sentence from life imprisonment to that of 20 years—Appeal was disposed of accordingly.

2011  YLR  172   KARACHI-HIGH-COURT-SINDH

NOOR REHMAN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c), 14 & 15—Possession of narcotic drugs etc., aiding, abetting or association in narcotic offences—Bail, refusal of—Accused were arrested red handed with huge quantity of heroin and charas—Reasonable explanation for non-availability of private mashirs during recovery proceedings was given—No reason for mala fide on the part of Police for implicating the accused was given either—Report of the Chemical Examiner was positive—No case of further inquiry within the meaning of S.497(2), Cr. P. C. was made out—Accused were alleged to have been involved in heinous crime, were not entitled to bail—Petition was dismissed.

2011  PCrLJ  1953   KARACHI-HIGH-COURT-SINDH

GADA ALI VS State

379. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 2(c), 20, 21 & 51(2)—Possession of narcotics—Bail, refusal of—Accused according to the F.I.R. was found to be in possession of contraband “charas”, if not in his own capacity, at least in the capacity of an “associate” within the meaning of S.2(c) of the Control of Narcotic Substances Act, 1997—Contention that the premises from where the “charas” was recovered and seized did not belong to accused could not be looked into at the bail stage, particularly when the burden lay on the accused to prove that the said premises did not belong to him—Matter being that of urgency, dispensing of obtaining the warrants was justified, otherwise the attempt to raid would have been failed and the chance of recovery of huge amount of “charas” could have been totally lost—Sections 20 and 21 of the Act being not mandatory and only  directory  in  nature,  strict  non-adherence thereof was not fatal and the raid was not illegal—Police employees were competent like any other independent witnesses and their testimony could not be disregarded merely on the ground of their being such employees—Huge quantity of contraband “charas” weighing 379.5  kilograms  being  involved  in  the  case,  the  same  was  not  a  fit  case  for  grant  of  bail  to  accused,  as  mentioned  in  S.51(2)  of the  Act—Accused  had been apprehended on the spot with a big quantity of “charas”—Bail was declined to accused in circumstances.

2011  PCrLJ  1838   KARACHI-HIGH-COURT-SINDH

YAR MUHAMMAD VS State

Ss. 6 & 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Two co-accused were established to be the custodians and the drivers of the trucks carrying charas—When the Police party apprehended said accused, they had specifically pointed out not only about the secret cavities in the container, but also about the charas in one of the trucks—Accused admitted that they were in collaboration and consultation with international drug peddlers; and had concealed said charas on their instructions—Chemical Examiner’s report was in positive and necessary legal requirements in that regard had been fulfilled by the prosecution—No significant material contradiction, improvement and discrepancy were in the deposition of prosecution witnesses, except few minor contradictions, which were ignorable—No enmity  of  the  Police  with  accused  persons  to  falsely  implicate them  was  established—Deposition  of  prosecution  witnesses  had mostly  remained  the  same,  unshettered and consistent—Prosecution could  not  be  said  to  have  not  proved  its  case  against  accused  persons beyond reasonable doubt—Accused persons having been found guilty of the charge punishable under Ss.6 & 9(c) of Control of Narcotic Substances Act, 1997, they were rightly convicted and sentenced—Order passed by the Trial Court was maintained, in circumstances.

2011  PCrLJ  1838   KARACHI-HIGH-COURT-SINDH

YAR MUHAMMAD VS State

Ss. 6 & 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Benefit of doubt—Documents produced on record had proved that accused who was only the Chowkidar of Godown from where contraband items were recovered, had nothing to do with said items—Nothing incriminating was recovered from the Chowkidar, except a visiting card, a mobile phone and some cash—Special Prosecutor agreed that the role of accused was different from the role of other accused person—Prosecution had failed to connect accused (Chowkidar) with absconding accused—Even the spy had not named accused among the suspected drug peddlers—Prosecution had failed to connect accused with recovery of said contraband items and mere presence of accused on the place would not implicate him in the involvement of said crime—Reasonable doubt, in circumstances had been created with regard to the role of accused—Prosecution having not been able to establish its case, accused was liable to be given the benefit of doubt; it was better to acquit 100 guilty persons than to charge one innocent person—Accused in circumstances was acquitted of the charge and was released.

2011  PCrLJ  1682   KARACHI-HIGH-COURT-SINDH

SHAHID ALI VS State

1. 9(e)—Possessing narcotics—Appreciation of evidence—Accused was apprehended red-handed, carrying 1700 grants of charas comprising of 170 rods—Accused had neither denied the possession of the same nor had shown that the case made out against hint by the prosecution was false; and said charge had illegally been foisted upon him—Ample opportunity of hearing was provided to accused by the Trial Court to explain his view point and nothing incriminating in that regard had been proved by accused—Accused vide application, addressed to the Special Court had categorically stated that the admitted his crime, but only had requested the court to give him the lesser punishment as he was having small kids “—After receiving the said application, the Trial Court granted hire some time to think over the matter, but his deposition remained unchanged—Trial Court after taking a very lenient view granted a sentence of 4 years only and a fine Rs.20,000—Trial Court having already taken a lenient view by awarding lighter sentence to accused no case of interference had been made out, in circumstances.

2011  PCrLJ  1551   KARACHI-HIGH-COURT-SINDH

ALI ZAMAN VS State

3. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6/9(c)/14/15—Possession of narcotics—Bail, refusal of—“Charas” weighing 3.850 kgs had allegedly been recovered from the possession of accused on the spot—Persons passing by despite approach had refused to become witnesses in the case—Section 103, Cr.P.C. was not applicable to the cases registered under Control of Narcotic Substances Act; 1997—Report of Chemical Examiner was positive—F.I.R. had been promptly lodged implicating the accused with a specific role—Co-­accused had been released on bail being a woman and her case being a border line case—No undue delay had been shown on the part of prosecution—Sufficient material was, prima facie, available on record to connect the accused with the commission of the offence—Such crimes were on the rampant, which should be dealt with strictly in accordance with law and looking into all the prevailing circumstances of the case—No case of further inquiry was made out—Bail application was dismissed in circumstances.

2011  PCrLJ  1342   KARACHI-HIGH-COURT-SINDH

IQBAL SHAH VS State

1. 9(c)—Possessing narcotics—Appreciation of evidence—Delay in sending the sample of the recovered material to Chemical Examiner—Effect—Recovery of “Charas” in the present case, was not disputed and therefore delay without any suggestion of tampering with the samples, per se, will not be sufficient to make the report of Chemical Examiner unreliable.

2011  PCrLJ  1342   KARACHI-HIGH-COURT-SINDH

IQBAL SHAH VS State

1. 9(c)—Possessing narcotics—Appreciation of evidence—Police witnesses—Police officials are good witnesses and they can be relied upon if their testimony remains unshattered during cross-examination.

2011  PCrLJ  1342   KARACHI-HIGH-COURT-SINDH

IQBAL SHAH VS State

Ss. 9(c) & 25—Possessing narcotics—Appreciation of evidence—Examination of private persons was not the requirement of law in terms of S. 25 of the Control of Narcotic Substances Act, 1997—Reluctance of general public to become witness in such cases was now a judicially recognized fact and no option was left but to consider the statements of official witnesses, for which there was no legal bar—Police officials were as good witnesses to be relied upon, if their testimony had remained unshattered during cross-examination— Recovery of “Charas” having not been disputed, delay in sending the samples to Chemical Examiner without any suggestion of tampering with the same per se, would not make the report of Chemical Examiner unreliable—Prosecution evidence with regard to the recovery of “Charas” from the accused inspired confidence and did not suffer from any legal infirmity, material contradictions or dishonest improvements—Prosecution  witnesses  had  no  enmity  with  the  accused  to  involve  them  in  a  false  case—No  mitigating  circumstance  was  available to reduce the sentence of accused—Appeal was dismissed in circumstances.

2011  PCrLJ  1334   KARACHI-HIGH-COURT-SINDH

SAFAR-UR-REHMAN VS State

1. 9(c)—Possessing narcotics—Appreciation of evidence—Benefit of doubt, extension of—Concept of benefit of doubt is deep rooted in the judicial system—Single circumstance, and not many creating reasonable doubt in a prudent mind about the guilt of accused, would entitle him to benefit of doubt, not as a matter of grace and concession, but as a matter of right.

2011  PCrLJ  1334   KARACHI-HIGH-COURT-SINDH

SAFAR-UR-REHMAN VS State

1. 9(c)—Possessing narcotics—Appreciation of evidence—Serious contradictions on material aspects of the case appeared in prosecution evidence—Veracity of the F.I.R. and memo. of recovery and arrest, meant to connect the accused with the crime having not been unanimously proved by  the  prosecution  witnesses,  the  same  had  made  the  prosecution  case  doubtful—Absence  of  prosecution evidence  regarding  sending  of  the  sample  of  contraband  “Charas” to Chemical Examiner, or it being highly contradictory, had made his report unreliable—Material allegedly recovered from the accused was not produced in the court at the trial, rather some other material had been introduced in evidence, for which there was no explanation—Packet of “Charas” from which sample was statedly taken had been produced in the court in unsealed condition and thus tampering thereof could not be ruled out—Only one circumstance creating reasonable doubt in a prudent mind about the guilt of accused would be sufficient to make him entitled to benefit of doubt, whereas many such circumstances were available in the present case, which did not justify the conviction of accused—Accused were acquitted in circumstances.

2011  PCrLJ  1200   KARACHI-HIGH-COURT-SINDH

BAHAWAL alias NAANG VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, grant of—Deeper appreciation of the evidence at bail stage could not be gone into, but only it was to be seen as to whether accused was prima facie connected with the alleged offence or not—In the present case Police acted on the spy information, whereas Police must have associated some private persons during alleged arrest—Delay of seven days in sending the substance to the Laboratory, had not been explained—Accused was admitted to bail, in circumstances.

2011  PCrLJ  1086   KARACHI-HIGH-COURT-SINDH

Haji MUHAMMAD IQBAL VS MUHAMMAD SAEED

Ss. 6, 9(c) & 29—Anti-Narcotics Force Act (III of 1997), Ss.3 & 5—Criminal Procedure Code (V of 1898), Ss.103, 537 & 561-A—Constitution of Pakistan, Art.199—Quashment of proceedings—Constitutional jurisdiction and powers of High Court under S. 561-A, Cr.P.C.—Scope—Possession of narcotic drugs etc.—Accused challenged proceedings against them through constitutional petition contending that in the presence of Anti-Narcotic Force, local Police had no authority to register the F.I.R. and investigate the case—Validity—Accused having been allegedly involved in a case registered under Ss.6 & 9(c) of the Control of Narcotic Substances Act, 1997 which provided maximum penalty of death or imprisonment of life, innocence or guilt of the accused could not be determined without conclusion of the trial—Under S.29 of the Control of Narcotic Substances Act, 1997, accused was presumed to have committed the alleged offence until the contrary was proved—Section 103, Cr.P.C. made the presence of two or more respectable inhabitants of the locality mandatory at the time of search made by an officer—Application of S.103, Cr. P. C. was purposely excluded. by the legislature from searches under Control of Narcotic Substances Act, 1997 in order to avoid formalities/complications of S.103, Cr. P. C.—Exclusion of role of local Police from investigating narcotic case would negate the provisions of S.21 of the Control of Narcotic Substances Act, 1997—High Court had ample powers under Art.199 of the Constitution and S.561-A, Cr.P. C. to quash the proceedings which were ex facie illegal or where the court had arrived at a positive conclusion that the proceedings were ex facie coram non judice—High Court could exercise jurisdiction in exceptional cases without waiting for the Trial Court to pass orders under S.249-A or 265-K, Cr.P.C.—Where no offence was made out by facts on record, allowing prosecution to proceed with the trial would amount to abuse of the process of law—Assumption of jurisdiction without lawful authority could be quashed in constitutional jurisdiction—Section 537, Cr.P.C. provided that no finding, sentence, order passed by a court of competent jurisdiction would be reversed or altered on account of any error, omission or irregularity in the complaint, report by Police Officer under S.173, Cr.P.C. summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or any inquiry or other proceeding under the Criminal Procedure Code—Police had not violated any law by arresting the accused—Petition was dismissed accordingly.

2011  PCrLJ  636   KARACHI-HIGH-COURT-SINDH

RABNAWAZ KHATTAK VS State

1. 9(c)—Penal Code (XLV of 1860), S. 57—Criminal Procedure Code (V of 1898), S. 397—Possession of narcotics—Sentence, reduction in—Appreciation of evidence—Imprisonment for life in two cases—Accused was convicted in both cases and were sentenced to imprisonment for life in each case-Validity-Imprisonment for life necessarily envisaged imprisonment of 25 years in accordance with spirit of S. 57, P.P.C. read with S. 397, Cr.P.C. and sentence of life imprisonment was only the next sentence after sentence of death—,Concept of life was only one span, therefore, imprisonment of life could only be for one life—Trial Court did not mention anything in judgments about running of two sentences either consecutively or concurrently, therefore, High Court could take curative measures in such eventuality—Accused were first offenders as no report/record was produced to show that they were previously convicted or involved in cases of like nature and that quantity of Charas which was reported by Chemical Examiner to be in positive, was less than 10 kilograms—High Court keeping in view the young age of accused and considering mitigating circumstances, while maintaining conviction of accused in both the cases, their life imprisonment was reduced to 10 years imprisonment in both cases and both sentences were to run concurrently—Appeal was dismissed accordingly.

2011  PCrLJ  398   KARACHI-HIGH-COURT-SINDH

INAYATULLAH VS State

Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c), 12, 13, 14, 15, 20, 21, 22 & 25—Possession of narcotics—Bail, refusal of—Accused were arrested red-handed on the spot by the raiding party when they were taking out the narcotic drug from the secret cavity of the bus—No allegation of mala fide on the part of prosecution was levelled—No reason for foisting huge quantity of narcotics was conceivable—Objections raised by the accused as to non-compliance of Ss.20, 21 and 25 of Control of Narcotic Substances Act, 1997 and S.103, Cr.P.C. were misconceived in fact and law—Section 25 of Narcotic Substances Act, 1997 had excluded the application of S. 103, Cr.P.C. in narcotic cases—Failure to associate private witness would not vitiate proceeding under Control of Narcotic Substances Act, 1997—Provisions of Ss.20, 21 and 22 of Control of Narcotic Substances Act, 1997 being directory, non-compliance of the same would not make the conviction bad in the eyes of law—Sufficient material was available against the accused for connecting them with the alleged offence; recovery had been effected from their joint possession—Accused, were not entitled to grant of bail—Application was dismissed.

2011  PCrLJ  177   KARACHI-HIGH-COURT-SINDH

AYAZ VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(b)(c)—Possession of narcotics—Bail, grant of—Case of further inquiry—Quantity of narcotics—Chars weighing 1300 grams was recovered from accused, out of which 300 grams were referred for chemical examination—Report of Chemical Examiner showed that instead of 300 grams, laboratory received 270 grams of Chars—According to F.I.R., encounter had been shown between police and accused party but no inquiry was sustained by either party—Effect—Where recovery of substance did not exceed the limit between 900 grams to 1500 grams, the case being borderline between clauses (b) and of S. 9 of Control of Narcotic Substances Act, 1997, accused should be admitted to bail—No discrepancy existed in weight shown in F.I.R. and weight of substance referred to Chemical Examiner, the case against accused was border-line case which had attracted provision of clauses (b) and (c) of S. 9 of Control of Narcotic Substances Act, 1997, and benefit of such discrepancy was to be extended to the accused–Bail was granted in circumstances.

2011  PCrLJ  72   KARACHI-HIGH-COURT-SINDH

GHULAM HUSSAIN VS State

Ss. 6, 9(c), 14 & 15—Possession of narcotics—Appreciation of evidence—Case property was not sealed and mashirnama bore no signatures of any personnel of ship—Mashirnama did not show that after drawing the samples, signatures of the witnesses had been obtained—Neither the sample was dated nor it was sealed—No shape or the description of the charas had been mentioned in the mashirnama—F.I.R. was totally silent as regard to the drawing of the sample or sending the same for the chemical examination—All the mashirs in the case were that of Customs Department, who did not have any idea with regard to the weight of the bags which were alleged to have been recovered from the possession of accused persons—No time had been mentioned on the report showing recovery of the contraband items—Whenever a doubt was created, the advantage of that had to be given to accused, not as a matter of grace, but as a matter of right—Case was full of contradictions and prosecution had not been able to prove the charges against accused persons beyond reasonable doubt—Prosecution having failed to prove its case against accused persons, beyond any reasonable doubt, accused were acquitted of the charges against them.

2011  MLD  1890   KARACHI-HIGH-COURT-SINDH

ASGHAR VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 9(c) & 25—Bail—Ouster of S.103, Cr.P.C.—Effect—Though private persons are not required to witness the recovery of narcotic substances as provided under the Control of Narcotic Substances Act, 1997, yet the place of recovery and the time of recovery have to be kept in view to prevent false implication of innocent people, looking to the general conduct of police.

2011  MLD  1890   KARACHI-HIGH-COURT-SINDH

ASGHAR VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 9(c)—Possession of narcotics—Bail, grant of—Further inquiry—Prosecution must have associated some private persons as witnesses at the time of arrest of the accused—Accused was not arrested on the spot and he was arrested subsequently on the statement of co-accused—No private person having been associated to witness the arrest of accused, prosecution case had become doubtful—Offence against accused did not fall within the prohibitory clause of S.497(1), Cr.P.C.—Guilt of accused needed further probe within the meaning of S.497(2), Cr.P.C.—Bail was allowed to accused in circumstances.

2011  MLD  1555   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ALI VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9 & 51—Possessing and trafficking of narcotics—Bail, grant of—Further inquiry—Under provisions of S.51(2) of Control of Narcotic Substances Act, 1997, if the court was of the opinion that it was a “fit case” for grant of bail, court, against security of substantial amount, could grant bail—Sample of only one kilogram was sent for chemical examination out of four kilograms contraband, stated to have been recovered from accused—Accused, in circumstances, had been able to pass test of “fit case” as contemplated under S.51(2) of Control of Narcotic Substances Act, 1997; as well as test of subsection (2) of S.497, Cr.P.C. i.e. further inquiry—Accused was enlarged on bail, in circumstances.

2011  MLD  1142   KARACHI-HIGH-COURT-SINDH

IQBAL HUSSAIN VS State

Ss. 6 & 9(c)—Possession and trafficking of narcotics—Appreciation of evidence—Contents of F.I.R. as well as memo of arrest and recovery were corroborated by the evidence of complainant, recovery witness and their evidence could not be shaken on any of the material particulars during their cross-examination—Evidence of said witnesses was further corroborated by positive report of Chemical Examiner in respect of the entire charas secured from the secret cavities/boxes of the Bus on the disclosure of accused—Both witnesses, no doubt belonged to the Anti-Narcotic Force but, same itself could not be considered on a valid reason to discard their statements—Since prosecution had been able to successfully adduce the convincing evidence in support of the alleged recovery of a huge quantity of charas, non-recovery of driving licence of accused or registration Book of the Bus was not of so importance to violate the said recovery of contraband charas—Accused could not furnish cogent reason for their alleged false implication—Involvement of accused in the case had been proved by confidence inspiring evidence of prosecution witnesses, who had no animosity or any interest to depose falsely against them—Evidence adduced by the prosecution during the trial of the case was properly appreciated by the Trial Court—Accused, in circumstances, were rightly found guilty of the charge on the basis of the material brought on record—Conviction and sentence awarded by the Trial Court to accused persons, were maintained, in circumstances.

2011  MLD  923   KARACHI-HIGH-COURT-SINDH

HAMID ALLAUDDIN VS State

3. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c), 14 & 15—Prohibition of possession of narcotic drugs and aiding, abetment or association in narcotic offences—Bail, refusal of—Medical grounds—Counsel for accused did not press bail application on merits, but had confined his arguments on medical grounds stating that accused suffered from kidney problem—Counsel had placed on record medical report of accused issued by Medical Officer—3.300 Kgs. of heroin powder was recovered from the possession of accused while he was leaving abroad—Accused did not suffer from the ailment for which medical treatment was not available in the jail—Accused did not suffer from such disease which could prove detrimental to his life—Accused was declined concession of bail on medical grounds.

2011  MLD  450   KARACHI-HIGH-COURT-SINDH

SHAKIR BROHI VS State

5. 9(b)(c)—Possessing and trafficking narcotics—Appreciation of evidence—Sentence, reduction in-Counsel for accused without touching the merits of the case, had stated that as one K.G. charas was sent for chemical examination, same could be treated as recovery and his sentence from life imprisonment be reduced into sentence provided for one K.G. charas which was sent for chemical examination—No sample was taken from any other packet, except from one packet—Counsel for accused had contended that case of accused would fall under S.9(b) of Control of Narcotic Substances Act, 1997 appeared to be plausible—Sentence of accused was converted from S.9(c) to S.9(b) of Control of Narcotic Substances Act, 1997 and sentence of life imprisonment awarded to accused was reduced to seven years and amount of fine of Rs.200,000 was also reduced to Rs.100,000—Benefit of 5.382-B, Cr.P.C. was also given to accused.

2011  MLD  159   KARACHI-HIGH-COURT-SINDH

MATEEN KAMAL VS State

Ss. 6, 9(c) & 29—Possession of narcotics—Appreciation of evidence—Huge quantity of Charas weighing 1948 Kgs was recovered from the specifically built secret store room in the upper portion of the bungalow wherein accused were allegedly living as tenants—Said store room could not have been constructed without express permission of accused owner of the bungalow who was in full knowledge of the construction of the store built for storing Charas and. was connected with the recovered Charas—Accused owner could not show that he had been away from his bungalow for considerably long period of time during which accused tenant might have constructed the store without his knowledge—Though accused denied that they were living in the bungalow as tenant but recovery of the car of one of the accused established their presence in the said bungalow—Judgment of the Trial Court was upheld—Appeals were dismissed.

2011  MLD  110   KARACHI-HIGH-COURT-SINDH

HAFEEZ-UR-REHMAN TAHIR VS State

Ss. 497, 103 & 94—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c), 20, 21, 22 & 25—Possession of narcotics—Bail, refusal of—Second bail application was filed on the same grounds on which Trial Court had declined bail—Validity—No fresh ground was available to accused—Same points could not be raised in the garb of new developments—Mere filing of application for production of record relating to flight timings did not bring the case of accused within purview of further inquiry especially when Trial Court was examining evidence—Sufficient material was available on record to proceed against the accused whereas no previous enmity or mala fide against prosecution was alleged—Accused’s plea that non-association of private witnesses during raid amounted to non-compliance of Ss.20, 21 and 25 of the Control of Narcotic Substances Act, 1997 and S.103, Cr.P.C. was misconceived in fact and law—Section 25 of Control of Narcotic Substances Act, 1997 excluded application of Ss.20, 21 and 22 of Control of Narcotic Substances Act, 1997 being directory in nature and non-compliance of the same would not hold trial/conviction bad in the eyes of law—Accused could not make out a case of second application on fresh grounds for grant of bail; his application was dismissed.

2011  MLD  13   KARACHI-HIGH-COURT-SINDH

SALLAHUDDIN VS State

1. 9(c)-Possession of narcotics—Appreciation of evidence—Prosecution evidence was consistent and trustworthy—No previous enmity of the Excise Officials with the accused was established—Huge quantity of charas weighing 215 Kgs. was recovered from the accused who was a drug-trafficker—Testimony of defence witness contradicted accused’s stance as to means of transport used by them—No discrepancy was pointed out in the case of prosecution—Delay of five days in sending samples to Chemical Examiner was not fatal to prosecution case—Appeal was dismissed for being without merits.

2011  PLD  62   KARACHI-HIGH-COURT-SINDH

ABDUL ZAHIR alias ZAHIR SHAH VS State

Ss. 9(c), 20, 21 & 22—Recovery of narcotics—Appreciation of evidence—Sentence—Quantum—Minor discrepancies—Effect—False implication—Non-obtaining of search warrant—On arrest of one accused small quantity of heroin was recovered from him and on his pointation 7 kilograms of heroin was recovered from co-accused—Trial Court convicted both the accused for possessing 7 kilograms of heroin and were sentenced to seven years of imprisonment—Plea raised by accused was that raid was conducted without obtaining search warrant—Validity—Evidence of complainant was corroborated by evidence of two recovery witnesses, whose evidence also got support from F.I.R., arrest of accused, recovery of narcotics and report of Chemical Analyzer, which was positive—Some discrepancies and contradictions appeared in evidence of prosecution witnesses but the same did not appear to be of such nature to vitiate trial or create doubt in prosecution case, as the evidence adduced by prosecution was consistent on material particulars and inspired confidence—Defence of accused that they were falsely implicated in the case was not substantiated by relevant evidence as huge quantity of heroin could not be planted upon accused in absence of any enmity or dispute—Provisions of Ss. 20, 21 and 22 of Control of Narcotic Substances Act, 1997, were directory in nature, therefore, non-compliance thereof would not be a ground for holding trial to be bad in law—Evidence adduced during trial was properly appreciated by Trial Court and the same did not warrant any interference by High Court—On the basis of material brought on record of Trial Court, both the accused were rightly found guilty and were accordingly convicted—Sentence awarded to the accused from whose possession 7 kilograms of heroin was recovered was maintained by High Court but the accused from whose possession only small quantity was recovered, his sentence was reduced under S.9 (b) of Control of Narcotic Substances Act, 1997 to three years’ imprisonment—Appeal was disposed of accordingly.

2011  PLD  40   ISLAMABAD

MUHAMMAD YOUSAF VS State

1. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Sentence, reduction in—Both prosecution witnesses stated that in consequence of search of the bus in question, 6-Kgs charas in the shape of sleepers rusty green stitched with packing Cellophane and garda (raw) charas 18-Kgs in the shape of sleepers rusty green stitched with packing Cellophane was recovered and taken into possession along with the bus; that recovered charas was made into two sealed parcels in two bags and another bag of garda charas was also made into a sealed parcel and that 10 grams of charas and 10-grams of garda was separated for chemical analysis and made into sealed parcels separately—In presence of such assertion, the contention of counsel for accused, was plausible and convincing that samples were not taken from each sleeper which discrepancy, could not be taken lightly as stringent sentences had been provided under the Control of Narcotic Substances Act, 1997, if offences charged against accused within any component of S.9 of the Act were proved—Control of Narcotic Substances Act, 1997 had to be construed strictly and relevant provisions of law dealing with the procedure as well as furnishing the proof like the report of expert, were to be followed strictly in the interest of justice, otherwise it would be impossible to hold that total commodity recovered from the possession of accused, was charas–Presumption in the given circumstances of the case was, that sample was not taken out from each sleeper and presumption would be that recovered substance was not the whole charas—Accused, in circumstances, deserved remission in sentence—While maintaining conviction under S.9(c) of the Control of Narcotic Substances Act, 1997, their sentences were reduced to one already undergone by them—Benefit of S.382-B, Cr.P.C., would remain intact.

2011  PLD  1   FEDERAL-SHARIAT-COURT

Mian ABDUR RAZZAQ AAMIR VS FEDERAL GOVERNMENT OF ISLAMIC REPUBLIC OF PAKISTAN

Ss. 9, 48, 49 & 51—Anti-Terrorism Act (XXVII of 1997), Ss.25 & 21-D—Constitution of Pakistan, Art.203-DD—Jurisdiction of Federal Shariat Court charged with “Hudood” offences and grant or refusal of bail—Scope—Offences relating to narcotic drugs are within the purview of “Hudood” and consequently an order, final or interim including grant or refusal of bail, passed by any court, special or ordinary, under any law, regarding an offence relating to “Hudood” is within the jurisdiction of the Federal Shariat Court and no other court, including a High Court, has the power to entertain bail matter or an appeal or revision in any such matter—Federal Shariat Court directed . that text of Ss.48 & 49 of Control of Narcotic Substances Act, 1997 has now to be suitably amended to restore jurisdiction of Federal Shariat Court in matters relating to enforcement of “Hudood”-No legal instrument, other than constitutional amendment, can limit or ignore the exclusive jurisdiction of Federal Shariat Court mandated under Art.203-DD of the Constitution—Similarly if an offence of the nature of “Hudood” is tried under Anti-Terrorism Act, 1997 the appeal in all such cases under S.25 of the said Act, or for that matter bail under S.21-D of the said Act shall lie before the Federal Shariat Court and not a High Court—Federal Shariat Court directed that consequently two steps will have to be taken to set the matter right that words “Federal Shariat” shall be substituted for the words “High Court” occurring in Ss.48(i) and 49(i) of Control of Narcotic Substances Act, 1997 and that a rider will have to be put in S.25 of the Anti-Terrorism Act, 1997 to state that appeal in cases relating to Hudood shall lie to the Federal Shariat Court—Any order, interim or final, passed by a Court constituted under Anti-Terrorism Act, 1997, in relation to a Hadd offence, shall be appealable or revisable only before the Federal Shariat Court—Wordings of S.25 Anti-Terrorism Act, 1997 should be suitably amended to make it clear that a High Court shall have jurisdiction in all cases under the Act except “Hudood” matters—Present findings shall become operative after the specified period—Ss.48 & 49 of Control of Narcotic Substances Act, 1997 and S.25 of Anti-Terrorism Act, 1997 are violative of Art.203-DD of the Constitution to the extent that the jurisdiction of the Federal Shariat Court is ousted in matters relating to grant of bail or hearing appeals or ordering transfer of cases from one court to another court in cases registered or charged with “Hudood” offences—Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with the present declaration whereafter the impugned provision shall cease to be effective and present judgment of the Federal Shariat Court will be operative as on 22-6-2011.

2010  SCMR  1962   SUPREME-COURT

SALAH-UD-DIN VS State

Ss. 9(c) & 29—Criminal Procedure Code (V of 1898), S.103—Constitution of Pakistan (1973), Art. 185(3)—Re-appraisal of evidence—Recovery of narcotics—Official witnesses, evidence of—Charas weighing 20 kilograms was recovered from accused and he was convicted and sentenced to imprisonment for life by Trial Court—Conviction and sentence awarded by Trial Court was maintained by High Court—Plea raised by accused was that no private witness was associated in recovery proceedings—Validity—Accused was apprehended at the spot from a vehicle on whose search 20 kilogram Charas was found for which F.I.R. was got lodged with promptitude and samples from recovered material were sent to Chemical Expert without any loss of time which were found “Charts” as a result of chemical examination—No enmity was alleged against prosecution witnesses and there was no possibility for false implication without having any ulterior motive which was never alleged—Defence version was rightly discarded which was denial simplciter and did not appeal to logic and reason—Reluctance of general public to become witness in such like cases had become judicially recognized fact and there was no way out but to consider statement of official witness, as no legal bar or restriction had been imposed in such regard—Police officials were as good witnesses and could be relied upon, if their testimony remained un-shattered during cross examination—Provisions of S. 29 of Control of Narcotic Substances Act, 1997 had provided exclusion of S.103, Cr.P.C. during recovery proceedings—Trial Court had appreciated the entire evidence and conclusion arrived at was affirmed by High Court which judgment was well based and did not warrant interference—Leave to appeal was refused.

2010  SCMR  1800   SUPREME-COURT

JERRY PRINCE VS State

1. 9(c)-Constitution of Pakistan (1973), Art. 185(3)–Possession of narcotics-Reappraisal of evidence—Recovery of 3 kilogram of heroin-Concurrent findings of guilt by two courts below-Both the courts below had given concurrent findings of fact that huge quantity of heroin was recovered from suit-case of accused in his presence-Trial Court convicted the accused under S.9(c) of Control of Narcotic Substances Act, 1997, and sentenced to 8 years of imprisonment, which sentence was maintained by High Court-Validity—Finding of guilt recorded by courts below did not suffer from any infirmity or illegality Accused failed to point out any piece of evidence which was misread or non-read by courts below while rendering finding of guilt against accused–Supreme Court declined to go behind concurrent findings of guilt recorded by courts below unless it could be shown that finding was on the face of it against evidence or so patently improbable or perverse that to accept the same could amount to perpetuating a grave miscarriage of justice or there had been any misapplication of principle relating to appreciation of evidence or finally, of finding of guilt could be demonstrated to be physically impossible—Burden was heavy on accused to show that concurrent findings of guilt recorded by High Court were not sustainable on record and should be interfered with by Supreme Court—Accused failed to bring his case within the parameters prescribed by Supreme Court on the subject—Supreme Court in exercise of power under Art. 185(3) of the Constitution, declined to interfere in concurrent conclusions arrived at the courts below–Accused failed to raise any substantial question of law and keeping in view the concurrent findings of courts below, Supreme Court declined to exercise its discretion in favour of accused—Leave to appeal was refused.

2010  SCMR  1744   SUPREME-COURT

JAVID-UR-REHMAN  VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Constitution of Pakistan (1973), Art. 185(3)—Possessing narcotic drug—Bail, refusal of—Accused were allegedly found possessing huge quantity of heroin—Although on one date prosecution witnesses were present in court, but counsel of accused did not appear for recording of their evidence—Since trial had commenced and progress was being made in the case, therefore without dilating upon the merits of the case petition was dismissed, with direction to Trial Court to expedite the proceedings and conclude the same within six weeks—Defence counsel was also directed to cooperate with the court for expeditious disposal of the case.

2010  SCMR  1181   SUPREME-COURT

ALLAH DITTA VS State

Ss.74 & 9(c)—Criminal Procedure Code (V of 1898), S.516-A—Constitution of Pakistan (1973), Act.185(3)—Possession of narcotics—Release of the vehicle on “Superdari” —Proviso of S.74 of the Control of Narcotic Substances Act, 1997, did not prohibit the release of the vehicle involved in the trafficking of narcotics to its owner, who was not connected in any way with the commission of the crime or the accused and was unaware that his vehicle was being used for the crime—Record did not show that the petitioner was aware that his vehicle was used for the transportation of “Charas “—Documents produced by the petitioner before the Courts below showed that his car was leased to a firm of “Rent a Car”, which had rented it out to the accused—In the absence of any rebuttal by the prosecution of these documents, findings of High Court that the same might have been fabricated, could not be agreed —No rival claimant of the vehicle came forward—Petitioner was entitled to the temporary custody of the vehicle, which was ordered to be released to him on “Superdari” in circumstances.

2010  SCMR  1162   SUPREME-COURT

GULSHAN ARA VS State

1. 9(c)—Possession of narcotics—Appraisal of evidence—Two Judges of Supreme Court had found the accused guilty of possessing 17 Kilograms of “Charas” recovered by the prosecution witnesses from the kitchen of her house, but had made her liable only for being in possession of one kilogram of “Charas” contained in one packet, out of which six grams were taken as sample for chemical analysis and exonerated her from the remaining 16 kilograms of “Charas”—Reliance in this behalf was placed on two judgments of Supreme Court reported as PLD 2004 SC 856 and 2008 SCMR 991—Contrary view in this regard had already been taken by two other Benches of equal number of Judges in the cases reported as 1988 SCMR 1899 and 2003 SCMR 54, holding that taking of samples from every one of the packets was not necessary—In such a situation, apparently, the rule laid down by Supreme Court in the case reported as PLD 1995 SC 423 was required to have been followed, which is that “if a Bench of equal Judges does not agree with the earlier Bench of equal Judges, then the matter should be referred to a Larger Bench”—Because of the conflict of decisions of Supreme Court on the above point, High Courts and subordinate Courts were making pick and choose to apply any of the decisions in the case, which apparently was causing miscarriage of justice—Now it was left at the discretion of the High Courts and subordinate Courts to give benefit or otherwise to any particular accused, which was frustrating the intention of law-makers and diminishing the rigour of law for which it was made—Proviso to S.9(c) of the Control of Narcotic Substances Act, 1997, was being made redundant in cases of recovery of huge quantity of narcotics—Suppose in a case in which thousands of packets are recovered from a container, would it be possible to take sample from each packet, if not, then the accused would not be held responsible for the huge quantity recovered from the container, except for the quantity from which the sample was taken and sent to Chemical Analyzer for report—Intention of law is to cover all the situations of the offence—Control of Narcotic Substances Act, 1997, has been enacted to crush the menace of narcotics, which is not only eroding the society of Pakistan but the world at large—Sample represents the whole property—Accused had never challenged that the recovered substance was not “Charas “—Offence fell under S.9(c) and not under S.9(b) of the Control of Narcotic Substances Act, 1997—Appeal of accused was dismissed accordingly—Matter was directed to be referred to the Chief Justice for constituting a larger Bench to resolve the above controversy.[Minority view].

2010  SCMR  1162   SUPREME-COURT

GULSHAN ARA VS State

1. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Possession of narcotics—Leave to appeal was granted to accused to consider the contention that only six grams of “Charas” out of one packet had been sent for chemical examination, whereas according to F.I.R. 17 Kilograms of “Charas” was recovered out of 17 packets.

2010  SCMR  1162   SUPREME-COURT

GULSHAN ARA VS State

Ss. 9(c) & 9(b)—Possession of narcotics—Appraisal of evidence—Sentence, reduction in—Seventeen packets of one kilogram narcotic each had been recovered by the police from secret boxes of the kitchen of accused—Only six grams of the narcotic was sent for chemical analysis without indicating that a sample was taken from each packet—Admittedly, no sample was taken from any other packet except one which weighed only one kilogram—Case of accused, thus, falls under S.9(b) of the Control of Narcotic Substances, 1997—Conviction of accused was consequently, converted from S.9(c) of Control of Narcotic Substances Act, 1997 to S.9(b) thereof and her sentence was reduced including that of fine to the one already undergone by her.

2010  SCMR  1160   SUPREME-COURT

KHUDA BUX VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Constitution of Pakistan (1973), Art.l85(3)—Possession of narcotics—Bail, grant of—Six separate pieces were recovered—Two pieces weighing about 50 grams were forwarded for Chemical Examination, which prima facie did not appear either to be random or representative sample—Question of imposition of maximum sentence, under circumstances, was to be determined during trial—Accused had already remained under custody for over 9 months—Prima facie case for grant of bail was made out, petition for leave to appeal was converted into appeal and accused was admitted to bail, in circumstances.

2010  SCMR  1016   SUPREME-COURT

MUHAMMAD JANAS VS State

1. 9(c)—Possession of narcotic—Appraisal of evidence—Huge quantity of “Charas” and opium had been recovered by police from a vehicle parked with two tyres burst—Accused, no doubt, named in the F.I.R., but it was not known as to who had provided their names to the complainant police officer—Police after having received the wireless message about the encounter between the Customs Staff and the assailants, instead of keeping interaction with Customs Staff, had opted to first go to the vehicle, recovered the narcotics, prepared recovery memos and samples etc. and after everything was done only thereafter started search for the accused—Manner in which police had proceeded was neither explainable, nor correct or acceptable—Accused were neither seen while sitting in the said vehicle nor running away from there—Mere apprehension of the accused with Klashnikovs in the absence of any evidence connecting them with the vehicle in question, did not prove the offence alleged against them—Accused were acquitted in circumstances.

2010  SCMR  1007   SUPREME-COURT

SAJID alias BABA VS State

1. 9(c)—Possession of narcotic—Appraisal of evidence—Contentions raised on behalf of accused had been adequately addressed by the Courts below assessing the evidence on record on the settled principles of law—Property secured from the possession of accused being more than 10 kilograms, sentence of life imprisonment could only be awarded to him, which was the minimum sentence provided for the offence under section 9(c) of the Control of Narcotic Substances Act, 1997-Impugned judgment, thus, did not call for any interference—Plea taken by accused for condonation of delay of 600 days in filing of appeal could not be proved by him—Appeal was consequently dismissed being devoid of merits and barred by time.

2010  SCMR  1007   SUPREME-COURT

SAJID alias BABA VS State

1. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Possession of narcotic—Leave to appeal was granted to accused to consider the quantum of sentence subject to limitation of 600 days in the case in which huge quantity of “Charas” and opium was secured from a car being driven by him and intercepted by the police.

2010  SCMR  927   SUPREME-COURT

MUHAMMAD NOOR  VS State

Ss. 9(c) & 29—Qanun-e-Shahadat (10 of 1984), Art.122—Reappraisal of evidence—Recovery of narcotics—Fact specially within knowledge—Onus to prove—Charas weighing 268 kilograms was recovered from secret cavities of vehicle and accused were arrested from the vehicle—Plea raised by accused was that they were not in knowledge of presence of narcotics in the vehicle—Validity—No evidence was led by prosecution to indicate that accused knew that Charas or narcotic substance was concealed in secret cavities or had knowledge of that place so as to attract the provisions of Art.122 of Qanun-e-Shahadat, 1984—If property was lying open within the view of accused or they knew placement of property then situation would be different in such situation, accused were required to explain their position in terms of Art.122 of Qanun-e-Shahadat, 1984, without such explanation their involvement in the case would be proved—Such knowledge of accused had not been proved through any evidence either oral or documentary, therefore, they were not required to explain anything—Prosecution had simply proved presence of accused in the vehicle and mere presence of accused in vehicle would not involve them in the case conspiracy or abatement of the offence was shown and proved, therefore, prosecution failed to prove the case against the accused–Supreme Court set aside conviction and sentence awarded to accused and they were acquitted of the charge—Appeal was allowed.

2010  SCMR  927   SUPREME-COURT

MUHAMMAD NOOR  VS State

Ss. 9(c) & 29—Reappraisal of evidence—Recovery of narcotics—Possession of driver—Scope—Charas weighing 268 kilograms was recovered from secret cavities of vehicle—Driver of the vehicle and his co-accused were convicted under S.9(c) of Control of Narcotic Substances Act, 1997, and were sentenced to imprisonment for life—Conviction and sentence awarded by Trial Court was maintained by High Court—Validity—Accused who was driving the vehicle was in possession of the vehicle and also in possession of the articles whatever lying in it—Allegation against co-accused was that on his information secret cavities of vehicle were opened and Charas was secured—Co-accused had knowledge of availability of Charas in secret cavities of the vehicle, therefore, he was also involved in the case along with driver—Supreme Court declined to interfere in the conviction and sentence awarded to both the accused—Appeal was dismissed.

2010  SCMR  841   SUPREME-COURT

SHAHZADA VS State

1. 9(c)—Qanun-e-Shahadat (10 of 1984), Art.122—Recovery of narcotic—Appraisal of evidence—Driver of the car had escaped from the Diggi of which 180 kilograms of “Charas” and one kilogram of opium were secured by police—Accused were simply sitting in the car—No evidence was led by the prosecution to show that the accused had knowledge of the narcotics lying in the car or they had abetted or conspired with the driver in the commission of the crime—Property in question was neither lying open in the car within the view of the accused, nor they knew about the placement of the same therein–Accused, therefore, was not even required to explain their position as required under Art.122 of Qanun-e-Shahadat, 1984, and they could not be held responsible and in joint possession of the narcotics with the Driver—Prosecution case against the accused was highly doubtful and they were acquitted accordingly.

2010  SCMR  580   SUPREME-COURT

THE STATE/ANTI-NARCOTIC through Director-General Petitioner VS RAFIQ AHMAD CHANNA

1. 497(5)—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Constitution of Pakistan (1973), Art.185(3)—Possession of narcotic—Cancellation of bail, refusal of—Cocaine weighing only 120 grams having been secured from the possession of accused, the offence would fall under S.9(b) of the Control of Narcotic Substances Act, 1997, entailing -maximum imprisonment for seven years—No Chemical Analyzer’s report about the recovered material was available—Neither any allegation of abscondence was made against accused, nor any such plea had been taken in the petition—All the witnesses being officials, prima facie no question of tampering with the evidence would arise—Accused was not stated to be previously involved in a similar offence—High Court had justly and fairly exercised its discretion in granting bail to accused—Impugned order had neither violated any principle for grant of bail, nor the same was patently illegal or erroneous resulting in miscarriage of justice—Petition for cancellation of bail was dismissed and leave to appeal was refused accordingly.

2010  SCMR  61   SUPREME-COURT

THE STATE through Director-General, Anti-Narcotics Force, Rawalpindi VS ABDUL GHANI

2. 497(5)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 12, 13 & 15—Constitution of Pakistan (1973), Art.185(3)—Possession etc. of narcotic drugs—Bail, cancellation of—High Court had erred in entering into the facts of the case and making an incorrect observation that accused was not found in exclusive possession of the narcotics—According to the prosecution case and the. Investigating Officer 2.610 kilograms heroin and 1.780 kilograms “Charas” was recovered from the possession of accused, which he was carrying on his motorcycle—Accused, thus, was prima facie involved in an offence falling within the prohibition contained in S.497(1), Cr.P.C. and he was not entitled to bail—Submission of challan in the Court and a case of further inquiry having been made out, had no legal force in the given circumstances of the case—Possibility of further inquiry did exist in every case, but it was not possible to release the accused on bail notwithstanding his involvement in a heinous criminal case, particularly in which a considerable number of members of the society” including children, girls, men and women fell prey to drug trafficking—Bail allowed to accused by High Court was cancelled in circumstances.

2010  SCMR  27   SUPREME-COURT

ISMAEEL VS State

Ss. 9(c), 25 & 29(d)—Constitution of Pakistan (1973), Art.185(3)—Official witnesses—Recovery from vehicle—Proof of—Shifting of onus to prove—Chars weighing 39 kilograms and opium weighing 3 kilograms was recovered from inside four doors of the car which was being driven by accused—Trial Court convicted the accused under S.9(c) of Control of Narcotic Substances Act, 1997, and was sentenced to imprisonment for life, which conviction and sentence was maintained by High Court—Validity—Mere fact that prosecution witnesses belonged to Anti-Narcotics Force, by itself could not be considered valid reason to discard their statements—Chars and opium recovered from four doors of the car which was being driven by accused coupled with the fact that only accused was present in the car, therefore, courts below were justified to give finding against accused regarding his guilt—In case of transportation or possession of narcotics, technicalities of procedural nature or otherwise should be overlooked in the larger interest of country, if the case stood otherwise proved—Approach of Court should be dynamic and pragmatic in approaching true facts of the case and drawing correct and rational inferences and conclusions while deciding such type of cases—Court should consider entire material as a whole and if it was convinced that the case was proved then conviction should be recorded notwithstanding procedural defects—Chemical Examiner’s reports regarding Chars and opium were sufficient to prove that substance recovered from accused was Chars which could be used to cause intoxication—Prosecution discharged its initial onus while proving that substance was recovered from him whereas accused failed to discharge his burden in terms of S.29 (d) of Control of Narcotic Substances. Act, 1997—Supreme Court declined to interfere in conviction and sentence awarded to accused by Trial Court—Leave to appeal was refused.

2010  PLD  1052   SUPREME-COURT

KASHIF AMIR VS State

1. 9(c)—Transportation of narcotics—Driver of the vehicle to be responsible—Person on driving seat of the vehicle shall be held responsible for transportation of the narcotics, having knowledge of the same, as no condition or qualification has been made in S.9(6) of the Control of Narcotic Substances Act, 1997, that the possession should be an exclusive one and can be joint one with two or more persons—When a person is driving the vehicle, he is incharge of the same and it would be under his control and possession, hence whatever articles lying in it would be under his control and possession.

2010  PLD  1052   SUPREME-COURT

KASHIF AMIR VS State

1. 9(c)-Transportation of narcotics—Non-taking of samples from the whole lot of recovered narcotics—Question with regard to non-collection of the samples from the whole lot of recovered narcotics would arise in those matters where a challenge has been made that the recovered item is not narcotics.

2010  PLD  1052   SUPREME-COURT

KASHIF AMIR VS State

Ss. 9(c) & 29—Constitution of Pakistan (1973), Art.185(3)—Transportation of Narcotics—Accused being driver of the vehicle was incharge of the same and all the articles lying therein would be under his control and possession—In the present case from the secret cavities of the car 193 packets of “Charas” and 5 packets of opium weighing one kilogram each, were recovered on search—Samples had been drawn from all the packets—Accused had not challenged the recovery of the “Charas” and Opium before any court—Case of accused that he was innocent as he had no knowledge about the transportation of the narcotics in the car by concealing the same in the especially designed cavities did not inspire confidence—Prosecution had established the guilt of accused—Accused had failed to discharge his burden by proving to the contrary in term of S.29 of the Control of Narcotic Substances Act, 1997—Prosecution case against accused, thus, stood proved—Leave to appeal was declined to accused accordingly.

2010  PLD  623   SUPREME-COURT

ALI MUHAMMAD VS State

Ss. 6 & 9 (c)—-Criminal Procedure Code (V of 1898), Ss.516-A & 537—Reappraisal of evidence—Benefit of doubt—Destruction of narcotics—Incurable irregularity—Charas weighing 192 kilograms was recovered from the possession of accused—Trial Court convicted the accused under S.9 (c) of Control of Narcotic Substances Act, 1997, and sentenced him to imprisonment for life—Conviction and sentence awarded by Trial Court was maintained by Lower Appellate Court—Validity—Magistrate destroyed case property, without giving any notice to prosecution or accused or passing any appropriate order for allowing application, without permission of Trial Court and preparing samples—Supreme Court noted it with great concern that entire process of destruction was illegal, objectionable and for that Magistrate should be taken to task—Supreme Court directed that matter should be reported to High Court for taking appropriate action in accordance with law—As no opportunity was given to accused to protect his rights in the proceedings of destruction of property, therefore, he was prejudiced in his defence, which could not be cured under S.537 Cr. P. C. —Prosecution failed to prove the case against accused beyond reasonable doubt, therefore, he was entitled to benefit of doubt, which was accordingly given to him—Supreme Court set aside conviction and sentence awarded to accused by the courts below and he was acquitted of the charge-Appeal was allowed.

2010  SCMR  1989   SUPREME-COURT

State VS JAVED KHAN

1. 497(5)—Control of Narcotic Substances Act (XXV of 1997)—Ss.9(c) & 51(1)—Recovery of narcotic substances—Bail, cancellation of—Death sentence—Narcotic substance weighing 5-1/2 kilograms was recovered from accused who was granted bail by High Court—Validity—Case of accused did not fall within prohibitory clause of S. 497 Cr.P.C., as the offence was covered by section 9 (c) of Control of Narcotic Substances Act, 1997, providing for various sentences, which not only fell within prohibitory clause of S. 497 Cr.P.C. but also attracted the bar contained in section SI(1) of Control of Narcotic Substances Act, 1997, which was specifically made applicable to those offences which provided for punishment of death sentence—Approach of High Court releasing accused on bail was arbitrary, without application of mind and contrary to settled principles of law thus unsustainable—Supreme Court converted petition for leave to appeal into appeal and order admitting accused on bail was set aside and bail application before High Court was dismissed—Appeal was allowed.

2010  YLR  3271   QUETTA-HIGH-COURT-BALOCHISTAN

Syed ABDUL JABBAR VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—High quantity of narcotic weighing 42 Kgs consisting of 1978 rods and 67 cubes having allegedly been recovered, samples should have been taken from each of the rods and the cubes as per legal requirement in order to sufficiently prove that the whole material was a narcotic drug—Investigating Officer and witnesses of recovery failed to point out the number of rods and cubes from which samples were taken; such rods and cubes were not separated from the rest either—Instead, only small quantity of 100 grams was sent to the Forensic Science Laboratory—Witnesses contradicted each other on several points—Incompetence, negligence and failure of the investigating agency to fulfil the requirement of law damaged the prosecution case and raised reasonable doubt as to recovery of the narcotics from the accused—Benefit of doubt thus would go to the accused—Trial Court failed to appreciate evidence and committed material irregularity which destroyed prosecution’s case—Impugned judgment was set aside and accused was acquitted of the charge.

2010  YLR  97   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD NASEEM VS State

1. 9(c)—Appreciation of evidence—Benefit of doubt—Sentence, reduction in–Charge framed against accused was denied by accused—Onus was upon the prosecution to have proved that 35 kilograms Charas was recovered from the possession of accused—After the recovery of articles, it was the duty of the prosecution to have kept the same either in mal khana or’ in the safe custody—Prosecution had failed to establish as to whether incriminating articles were kept in safe custody—Unless the incriminating articles were produced before the court and the court was satisfied that the recovery was properly made, it was properly sealed and had kept in the proper possession, accused could not be held liable—Allegedly recovered article having not been produced, recovery, could not be termed to have been judiciously made—Factum of possession could only be established by production of the articles, so recovered and in the absence of the articles, no definite opinion could be formed–Onus was upon the prosecution to prove the case beyond shadow of doubt, which had not been discharged—Benefit of non production of article could not be extended to the prosecution and same definitely would go to accused—Prosecution, however, had been able to prove the case to the extent of 70 grams Charas, which was taken into possession and was sent for chemical analysis and Forensic Science Laboratory report was positive in respect thereof—Recovery of Charas was proved to the extent of 70 grams and accused could not be held liable for the entire alleged article in circumstances—Sentence of life imprisonment was modified to that one year R.I. and fine of Rs.5,000 only.

2010  PCrLJ  1145   QUETTA-HIGH-COURT-BALOCHISTAN

KHAYAL MUHAMMAD VS State

Ss. 9(c), 32(2), proviso & S.33—Possessing narcotics—Confiscation of vehicle—Appellant/owner of the vehicle in question was not put on notice as to why the vehicle be not confiscated—Proviso to S.32(2) of Contra; of Narcotic Substances Act, 1997 had laid down prerequisite conditions that no vehicle, vessel or other conveyance would be liable to confiscation, unless it was proved that the owner thereof knew that the offence was being or was to be committed; in fact knowledge was a point of fact and was to be adjudicated in accordance with law in a normal procedure of dispensation of justice by putting the owner on notice and not necessarily the accused—No effort was made to ascertain and determine the question that appellant knew that the offence was being or was to be committed—All those procedural pre-requisite had not been observed by the Trial Court and order had been passed for confiscation of vehicle in question—Requirements of S.32 or 33 of the Control of Narcotic Substances Act, 1997 had not been followed and observed in circumstances—In view of illegality committed by the Trial Court, impugned order was set aside to the extent of confiscation of vehicle, in question and matter was remanded to the Trial Court for proceeding in accordance with law and decision of the case.

2010  PCrLJ  1042   QUETTA-HIGH-COURT-BALOCHISTAN

ADALAT KHAN VS State

Ss. 9(c) & 29—Possession of narcotics—Appreciation of evidence—Both prosecution witnesses were cross-examined at length by the defence counsel, but nothing had been gained in favour of accused—Account furnished by the prosecution witnesses was credible and consistent with each other on all material aspects of the case, with the exception of minor discrepancies which were natural—No material discrepancy or improvement was made by said witnesses—Contention of counsel for accused was that accused were bona fide transporters/driver and cleaner of vehicle and that they had no knowledge about the hiding of illicit Hashish—Neither accused persons disputed the recovery of Hashish from the vehicle being driver and cleaner of the vehicle, nor the same was disputed before the court—Primary duty of the prosecution was to prove its case beyond reasonable doubt and its burden was not shifted under the presumption contained in S.29 of Control of Narcotic Substances Act, 1997—If, however, a plea was taken by accused, it was a statutory burden under S.29 of said Act to be discharged through cogent evidence in order to prove him innocent—Accused, in the present case, had only denied the charge, pleaded innocence and stated that their vehicle was hired by the transport company—Accused had not produced any evidence in their defence which could establish that the alleged bags were loaded in their vehicle by their co-accused—No substance was found in the plea taken by accused persons and plea taken by them in their defence was neither sufficient nor enough to exonerate them from the charge—Accused having failed to discharge the statutory burden, conviction and sentence of accused persons, were upheld and maintained.

2010  MLD  730   QUETTA-HIGH-COURT-BALOCHISTAN

JAMAL SHAH KHILJI VS State

S.561-A—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic—Quashing of orders—Application of accused for direction to Investigating Officer to record the statements of two witnesses was rejected by Judicial Magistrate—Criminal Revision filed by the accused against the said order was also dismissed by the Special Court—Validity—Trial Court had the power to summon material witnesses who had not been examined during investigation by the Investigating Officer, if they were necessary for just decision of the Case—High Court was competent to quash the administrative order, under S. 561-A, Cr. P. C, if found arbitrary, but since trial in the case had commenced, High Court in exercise of its inherent power could not divert the normal course of trial initiated before a Court of law, nor hamper the process of investigation—Sessions Court in exercise of its revisional powers might call for and examine the record of the proceedings of the inferior Court—Revision petition before the Sessions Court against the administrative orders of the Judicial Magistrate was not competent—Petition was dismissed in circumstances.

2010  YLR  2447   PESHAWAR-HIGH-COURT

AKHTAR HUSSAIN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing narcotic—Bail, grant of—Accused stood implicated in the case on the basis of his statements recorded by the Police—As 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.

2010  YLR  2283   PESHAWAR-HIGH-COURT

ABDUL JANAN VS State

Ss.9(c) & 25—Possession of narcotic–Appreciation of evidence—Benefit of doubt—Parcel of recovered contraband Charas contained no seal-Non-fixing of any seal on the parcel had made the narcotic doubtful—Weight of the narcotic was also found to be doubtful—Some pieces of Charas were found in the parcel which were totally different from the remaining lot, and it could not be ascertained as to whether same were Charas or “Khal “—Condition of the parcel and its contents, had made the case of the prosecution very doubtful, in circumstances—Conductor and the driver of bus in question, who were very important witnesses should have been cited and examined as prosecution witnesses because their depositions might have been helpful to the prosecution, but they were not associated with the investigation process—Such omission had also created doubt about the veracity of the prosecution version—Narcotics were recovered from the conscious possession of accused, but said physical and conscious possession was not proved in the evidence of the prosecution—No ticket was recovered to show that accused was travelling in the same bus, such omission would ‘create doubt because accused had altogether denied travelling in the bus—Though S.103, Cr.P.C. was excluded through S.25 of Control of Narcotic Substances Act, 1997, but it was to be complied with when there was a prior information—In the present case prior information being available, association of public independent witnesses with the recovery was necessary—Non-association of public witnesses with the recovery in spite of prior information was fatal to the prosecution case—Sample of contraband Charas was sent for chemical analysis with a delay of 27 days, which had gone against the case of the prosecution—Case against accused was full of doubts and contradictions—Prosecution had not been able to prove its case against accused and impugned judgment of the Trial Court was result of non-appraisal of material evidence brought on record—Impugned conviction and sentences awarded to accused by the Trial Court, were set aside and accused was acquitted of the charge and was set at liberty.

2010  YLR  2193   PESHAWAR-HIGH-COURT

SHAHZAIB VS State

1. 9(c)—Possession, import, export and trafficking of narcotic—Appreciation of evidence—Case of prosecution was that when the coach stopped, a young boy having a plastic bag on his shoulder deboarded therefrom; and on seeing the Police party tried to make good his escape, but was overpowered—One of the prosecution witnesses in his cross-examination had stated that the recovered substance was lying on the floor of the coach on which accused had put his legs and when accused deboarded on the direction of the S.H.O. from the coach, he himself picked up the same; and that accused was occupying the rear seat of the coach along with three other passengers—Another prosecution witness had stated that on stopping the coach, accused deboarded from the coach having a plastic bag on his shoulder, who on seeing the Police party tried to escape—Said witness on cross-examination had stated that accused was sitting on the second seat of the coach—Report of Chemical Examiner had shown that the samples were received on 13th day of the alleged recovery of narcotic—Number and colour of the coach from which accused had allegedly deboarded, was also conspicuous by its absence—Analysis of the entire record of the case showed that the prosecution, because of the concessional statements of the prosecution witnesses, had failed to prove the charge against accused—Conviction and sentence recorded by the Trial Court against accused, were set aside and he was acquitted and set free, in circumstances.

2010  YLR  2130   PESHAWAR-HIGH-COURT

MUHAMMAD WALI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic—Bail, refusal of—Positive report of Forensic Science Laboratory had confirmed that the recovered substances were charas and heroin—While dealing with the bail application in such matters, the quantum of recovery should be kept in mind that it must commensurate with the quantum of punishment to be awarded after conclusion of the trial which made the case of accused beyond the scope of prohibition contained in S.497, Cr.P.C.—Recovery of 80 grams of heroin in the shape of sachets along with currency notes of small denominations apparently suggested the prima facie involvement of accused in the practice of sale of narcotic substances and that too of heroin, which had crippled a fair chunk of youth and persons involved in such a menace, did not deserve any concessional treatment like bail—Accused, however, would have a fair chance of his defence to prove his innocence before the Trial Court—Bail was refused.

2010  YLR  1974   PESHAWAR-HIGH-COURT

YASIN GUL VS State

Ss.9(c) & 48—Possession of narcotic–Appreciation of evidence—Benefit of doubt—Contradictions existed in the statement of the Investigating Officer with regard to the timings of preparation of murasila and recovery memos, which contradictions had adversely affected the root of the case—No clear cut evidence was available about the number of parcels prepared—Prosecution witness in his cross-examination had stated that he prepared six parcels, but in the court six parcels and one bundle were produced which were not properly sealed–Contradictions in the statements of the prosecution witnesses were material which had adversely affected the case of prosecution—Contraband were recovered from the secret cavities prepared for the purpose in the truck and not from the personal possession of accused–Prosecution was duty bound to probe, as to whether the presence of the narcotics in the secret cavities of the truck was in the knowledge of accused or not, but that was not done in the case—Conscious possession in narcotics cases, was essential and unless such possession was proved accused could not be held guilty—Prosecution had failed to prove possession of the contraband with accused—Despite the allegation that accused was driving the truck in question, no driving licence was recovered from him—Such fact had suggested that accused was not driving the truck—Presence of accused on the spot, in circumstances, was doubtful, which was also a dent in the prosecution case—Marginal witness had admitted that parcels were not sealed in his presence—Such fact had also damaged the prosecution case—Exclusive possession of narcotics of accused had not been proved—Prosecution having failed to prove case against accused beyond any shadow of reasonable doubt, benefit thereof would go to accused–Impugned conviction and sentences awarded to accused were set aside and he was acquitted and set free—Impugned order of the Trial Court with regard to the confiscation of the truck and narcotics, would remain intact which would be disposed of according to law by the concerned Authorities.

2010  YLR  1939   PESHAWAR-HIGH-COURT

YAR MUHAMMAD VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Benefit of doubt—Prosecution had failed to prove the physical presence of accused a4 the time of the recovery of the contraband from the passenger bus—Prosecution, in circumstances, should have at least produced evidence to the effect that accused had conscious knowledge about the contraband in the passenger bus, but that was not done—Conduct of accused was very much natural and innocent; he approached the Police party after the recovery of the contraband was effected from the bus and to introduce himself as the owner of the said vehicle—Conduct of said person (accused) was surely not that of a criminal offender—Prosecution, no doubt had proved the recovery of the contraband from the passenger bus, however, missing link was noticed between the recovered contraband and the positive chemical report which had cast serious doubts on the prosecution version of the recovery of contraband—Prosecution evidence showed that 20 slabs of Charas were recovered, while the inspection of the same by the Trial Court had shown these to be otherwise—Such crucial contradiction was not even explained by the prosecution—Investigating Officer, despite being provided the names of the driver and the conductor, took no step to arrest them or to include them in the investigation; he did not even verify the ownership of the vehicle from the Registration Authority—Serious doubts being present in the prosecution’s case, benefit of said doubt would surely go to accused—Prosecution having not been able to prove the case against accused beyond reasonable doubt, conviction and sentence awarded to accused by the Trial Court, were set aside and they were acquitted of the charge under S.9(c) of Control of Narcotic Substances Act, 1997 and were released.

2010  YLR  614   PESHAWAR-HIGH-COURT

Mst. RUKHSANA VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic—Bail, grant of—Contentions that the raiding Police party had the prior information, but there was no arrangement of the lady Police constable with the team for the search of accused lady and that accused lady was having a suckling baby, were devoid of force, because the baby was allegedly not present with accused at the time of her arrest and the baby was also about 2-1/2 years old, so the term “suckling baby” was not attracted to that case and no benefit could be extended to accused on that count—Accused lady having been charged for carrying huge quantity of Charas, the minor procedural irregularity, would not negate the effect of such a huge recovery–Quantity as recovered from possession of the accused could have devastating effect on the society—Case of accused for her release on bail did not justify on merits, in circumstances—However, in accordance with the latest amendment, the extraordinary relief had been extended to the women prisoners—Accused lady had to be released on bail except in the cases where the punishment was prescribed as death or imprisonment upto ten years and that too in a restricted categories of terrorism, financial corruption and murder—Offences under the Control of Narcotic Substances Act, 1997 were not excluded from the said provision—Nonetheless, in the wisdom of the legislature, since no exception had been specified in the said proviso for not extending the benefit for the offences under the Control of Narcotic Substances Act, 1997, despite the severe punishment of death and imprisonment for life under S.9(c) of said Act for the quantity of 10 Kgs. and above, accused, had to be released on bail pursuant to the amendment in Cr.P.C.—Newly added proviso to S.497, Cr.P.C. extended the facility to the offences under all the laws for the time being in force and that Control of Narcotic Substances Act, 1997, could not be deemed to be an exception—Bail was granted.

2010  YLR  578   PESHAWAR-HIGH-COURT

ASFANDIYAR VS State

125. 9(c)—Possession of narcotic—Appreciation of evidence—Benefit of doubt—Investigating Officer of the Custom’s Staff, did not take samples from each packet of the narcotics; and what they did was that they mixed all the alleged recovered narcotics and prepared three samples; and only very meagre quantity was sent to the Chemical Examiner for report—In the case out of 125.300 Kgs. a sample of just 10 grams was sent—Wherever there were two versions and the version set up by the defence was probable, courts were invariably inclined to fallow the defence version—Case of the prosecution was doubtful to the extent of presence of accused only and also to the extent as secret cavities were in his knowledge or not—Accused was extended benefit of doubt—Conviction and sentence awarded to accused, were set aside and he was acquitted of the charge and was set at liberty.

2010  YLR  561   PESHAWAR-HIGH-COURT

NASEEB KHAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Sentence, reduction in—Counsel for accused did not press the appeal, however, he requested for reduction of sentence stating that accused was first offender; and that recovered substance was 10 Kg of Charas Garda, which in the process of baking would have reduced by 50%—Keeping in view nature and quantity of Charas recovered in the case, appeal to the extent of sentence was accepted and imprisonment for life was convicted into rigorous imprisonment for 7 years—Sentence of fine, however, remained intact.

2010  YLR  306   PESHAWAR-HIGH-COURT

DOCTOR KHAN alias QADIR VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of—Possession of narcotic—Accused was not arrested red handed—During interrogation neither accused confessed the guilt nor led to the recovery of any incriminating articles—Accused had been arrayed on the basis of statement of co-accused made to the Police, which legally speaking, was hardly admissible against the maker what to talk of co-accused—No legal direct or circumstantial evidence was connecting accused with the crime—Accused, in circumstances, was entitled to concession of bail.

2010  YLR  284   PESHAWAR-HIGH-COURT

QADAR KHAN alias DOCTOR KHAN alias GUL MUHAMMAD VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic—Bail, grant of—Only evidence available on record regarding involvement of said co-accused was that principal accused had mentioned him as owner of heroin in his judicial confession, but it had been retracted in his bail application—Case of accused, in circumstances had become arguable for the purpose of bail—Co-accused was admitted to bail in circumstances.

2010  YLR  284   PESHAWAR-HIGH-COURT

QADAR KHAN alias DOCTOR KHAN alias GUL MUHAMMAD VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic—Bail, refusal of—Due to red-handed arrest and recovery of 2kg heroin from one of accused persons, his case for bail was not arguable—Ground of suffering of accused from hepatitis-C was not supported by any medical certificate—Application of accused for bail was dismissed, in circumstances.

2010  YLR  245   PESHAWAR-HIGH-COURT

ALAMGIR VS State

S.497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9—Possession of norcotic—Bail, grant of—Further inquiry—Conscious knowledge of accused about the narcotics concealed in the secret cavities, needed further inquiry, because the prosecution had not brought on record any evidence to show his nexus with the contra band with the vehicle, his previous involvement in similar cases or any other overt Act—Bail in circumstances was granted to accused.

2010  YLR  216   PESHAWAR-HIGH-COURT

KAMRAN SHAH VS State

S.497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9—West Pakistan Arms Ordinance (XX of 1965), Ss.13/14—Possession of narcotic—Bail, grant of—Further inquiry—Arrest card read even independent to the school certificate, would suggest that the case of accused was of border line in context of his minor age-Site-plan prepared by the Seizing Agency, did not disclose the points of presence of accused persons at the relevant time—On the other hand, locale of Police Officials was duly indicated in the plan—Said fact had provided doubt regarding the arrest of accused persons from the spot of occurrence, also in view of the fact that co-accused was dubbed as `Adda Munshi’ who was not supposed to go with the commercial vehicle on its routine trips—Case of accused persons demanded further inquiry qua their con­nection with the alleged offence when the contents of arrest card were looked into—Card had been prepared in respect of all accused jointly, but did not disclose the place of arrest of accused persons—Case of accused persons could be distinguished from the other accused who was driver of the vehicle—Accused were admitted to bail, in circumstances.

2010  YLR  127   PESHAWAR-HIGH-COURT

ALI AKBAR VS State

S.497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9—Possession of narcotic drugs etc.—Bail, grant of—Further inquiry—According to the Police 1030 grams Charas was recovered from accused—As quantity of the alleged recovered Charas marginally exceeded from 1000 grams, it was a border line case between clauses (b) & (c) of S.9 of Control of Narcotic Substances Act, 1997 where maximum punishment could not be awarded—Prosecution had not collected independent evidence to connect accused with the guilt—Forensic Science Laboratory’s report was still awaited which had made the case against accused one of further inquiry under the contemplation of subsection (2) of S.497, Cr.P.C.—Accused was enlarged on bail, in circumstances.

2010  PCrLJ  1980   PESHAWAR-HIGH-COURT

Syed ZAFFAR alias QAZI ZAFFAR AFRIDI VS PAKISTAN through Secretary Interior

Ss. 30, 31 & 32—Control of Narcotic Substances Act (XXV of 1997), S.9—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3, 4 & 9—Constitution of Pakistan (1973), Art.199–Constitutional petition—Forfeiture property allegedly acquired by money of snuggling—Scope—Petitioners had impugned order whereby their property was. forfeited/confiscated on allegation that same was acquired by the petitioners by money of smuggling—Petitioners previously were booked for crimes under Arts.3, 4 & 9 of Prohibition (Enforcement of Hadd) Order, 1979 and under S.9 of Control of Narcotic Substances Act, 1997, but were finally acquitted from said charges—Subsequently property in question belonging to the petitioners was forfeited/confiscated on the allegation that same was acquired by the petitioners by money of smuggling—Case of the petitioners was that since they were honourably acquitted in all criminal cases registered against them, on the same allegations complaint under S.31 of Prevention of Smuggling Act, 1977 neither could have been filed nor entertained and adjudicated upon by courts below—Forfeiture of the property could be ordered under Ss.19 & 39 of Control of Narcotic Substances Act, 1997 by special court only when accused was convicted whereas the petitioners were not convicted, but were honourably acquitted—Petitioners were not charged or convicted for any offence of smuggling during the period they acquired property in question—Complainant had failed to prove the allegations against the petitioners, whereas the petitioners had sufficiently discharged their onus and proved that the property in question was acquired not as result of income derived from smuggling—Except statement of the complainant, no evidence worth the name had been produced or brought on the record by the complainant—On the basis of mere allegations levelled in the complaint under S.31 of Prevention of Smuggling Act, 1977, a citizen could not be deprived of his property—Impugned judgments were set at naught, in circumstances.

2010  PCrLJ  1747   PESHAWAR-HIGH-COURT

SHAUKAT HUSSAIN SHAH VS State

1. 497-Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, refusal of—Accused was apprehended on the spot along with 400 grams heroin in presence of witnesses—Report of sample sent for chemical analysis to the Laboratory was in positive—Copies of F. I. Rs. available on file revealed that accused was a habitual offender and dealt in the business of narcotics—Accused though in said cases had not been convicted, but it would not make his case arguable for the purposes of bail, because the registration of so many cases, had supported the plea that accused was a habitual offender dealing in the business of narcotics—Section 103, Cr.P.C. having been excluded from the provisions of Control of Narcotic Substances Act, 1997, there was no need of association of any public person with the process of recovery in such-like cases—Tentative assessment of the material brought on record, reasonably connected accused with the commission of offence which fell within the prohibitory clause of S.497, Cr.P.C. disentitling him to concession of bail—Bail was declined to accused.

2010  PCrLJ  1476   PESHAWAR-HIGH-COURT

ABDULLAH NOOR VS State

Ss. 9(c) & 46—Possession of narcotics—Appreciation of evidence—Accused had contended that he was simply an employee/the driver of the truck from where charas in question was recovered, whereas same at the relevant time was driven by other person who was resident of the area concerned; and that other person was the original owner of the truck—Accused had alleged that he was unaware of the presence of the narcotics in the truck and that the Police let the said person/owner of the truck to escape and planted the recovery against him/accused—Baseless and afterthought version of accused was belied by a joint statement of elders of the area duly verified by the Political Naib Tehsildar that neither that said other person was resident of that area nor they knew any person of said name—Recovery was made from the fuel tank which was part and parcel of the truck—Omission to make reference to the fuel tank in the framing of charge, would be immaterial and at the most it could be termed as an omission having no bearing on the merits of the case, and the trial on that score could not be vitiated—All witnesses were unanimous in their statements as to the factum of recovery—Contradictions pointed out by the counsel for accused in the statements of prosecution witnesses were not of so importance which could vitiate the factum of recovery—Nothing was on record to suggest that any of the prosecution witnesses had any animus or ill-will with accused which could constitute a reason for his false implication—Question of jurisdiction of the Trial Court would have no bearing on the recovery and the trial of the case was conducted in accordance with the Provincial Government notification issued in consultation with Chief Justice of High Court which had notified all the Sessions Judges and the Additional Sessions Judges in the Province to act as Judges of the Special Courts within the meaning of S.46 of Control of Narcotic Substances Act, 1997—Misdescription of designation of the Court would have no effect on legality of trial when otherwise the court had jurisdiction to try the same—Appeal was dismissed.

2010  PCrLJ  567   PESHAWAR-HIGH-COURT

RAFIQ VS State

1. 9(e)—Possession of narcotic—Appreciation of evidence—According to statement of co-accused under S.342, Cr.P.C., he was travelling as passenger in the vehicle in question; and had got no concern with the vehicle or the contraband—Fatal question would be the conscious possession and knowledge of contraband—Unless those two facts were proved, accused could not be connected with the guilt—Contraband had been recovered from the secret. cavities of the vehicle being driven by main accused-Nothing was on record to show that co-accused had any knowledge about the contraband—No evidence was available to the effect that co-accused being companion of main accused/driver of the vehicle had any conscious knowledge of contraband in the vehicle; and that they had joint possession of the recovered contraband—Doubt had arisen to the extent of participation of co-accused—Fact that contraband belonged to accused and absconding co-accused had found corroboration from abscondence of said absconded accused who was at large—Nothing was on record to show the ownership of the contraband recovered from the secret cavities of the vehicle—Co-accused was not connected with the offence as conscious possession , knowledge and ownership were not proved—Co-accused could not be convicted on the available evidence, his appeal was accepted—Judgment of conviction recorded against him was set aside, in circumstances.

2010  PCrLJ  567   PESHAWAR-HIGH-COURT

RAFIQ VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence–Case of accused was different than the co-accused as he at the relevant time was driving the vehicle from which opium in question was recovered—Recovery memo. had proved that driving licence was in the name of accused which was taken into possession by the Police along with registration of the vehicle—Recovery of driving licence in the name of accused while registration in the name of some other person, were sufficient material to conclude that accused was driving the vehicle and he was doing so with implied permission of owner—Accused had taken a conflicting plea in the statement recorded under S.342, Cr.P.C.—Accused was driving the vehicle and being so, it could very safely be inferred that accused was responsible for the secret cavities, and it was in his knowledge that there was opium therein—Knowledge, in circumstances stood proved—Case of accused thus stood on different footings as he was in exclusive possession of vehicle—Accused was in the knowledge of the secret cavities and he would be deemed to be in exclusive possession of the opium recovered—Charge against accused having stood proved, his appeal was dismissed being without force.

2010  PCrLJ  458   PESHAWAR-HIGH-COURT

MUHAMMAD SHAFIQUE VS State

1. 9(c)—Possessing narcotic—Appreciation of evidence—Though huge quantity of narcotic had allegedly been recovered from the possession of accused, but besides so many other contradictions, the prosecution witnesses had contradicted each other on material points with regard to the time of their arrival at the spot, the time after lapse of which the vehicle carrying narcotic arrived, the number of passengers who were present in the vehicle, weight of contraband along with bag and without bag, etc.—Strong reasons were available to disbelieve statements of both the prosecution witnesses and to discard the same and same could not be relied, upon for the purpose of recording conviction—Both the prosecution witnesses appeared to be either not present at the scene of occurrence or were purposely giving false statements concealing material before or after the occurrence having direct bearing on the fate of the case—Sample of alleged contraband were received in laboratory with a delay of 41/42 days—Neither the prosecution could offer any plausible explanation nor State Counsel could justify such delay or its lawful custody on any hypothesis—Trial Court though had discussed the shaky prosecution evidence and was conscious of its quality, but probably was influenced by the huge quantity involved in the case and extended every possible benefit to the prosecution, rather than to the defence—In such like cases, for the safe administration of justice, it was not the quantity of contraband, but the quality of evidence produced in the court to be considered for reaching a correct conclusion and just decision of the case—Facts, circumstances and evidence available on record had suggested that the prosecution had not been able to prove its case against accused beyond reasonable doubt, he deserved acquittal—Conviction and sentence of accused were set aside and he was acquitted of the charge against him.

2010  PCrLJ  348   PESHAWAR-HIGH-COURT

BASHIR KHAN VS State

Ss. 6/7/8/9—Recovery of narcotics—Appreciation of evidence—Benefit of doubt—Murasila as well as F.I.R. indicated recovery of certain items, but said items were not included in the recovered case property—Items mentioned in memo. of personal search were never produced before the court during trial—In cases involving recovery of narcotic, the report of laboratory indicating chemical analysis of samples thereof was considered to be of immense significance as it could provide a strong ground for connection between an accused and the incriminating material—Three samples were separated from the incriminating narcotics—Said exhibit, though contained F.I.R. number and its date, but was silent regarding. the name of Police Station and the relevant district—All the doubts in respect of subjecting the solitary sample, allegedly separated from the recovered lot and its dispatch to Forensic Science Laboratory, would reasonably prevail, in circumstances—Case of prosecution was that after recovery of contraband narcotic, the entire bulk along with one separated sample of 5 grams was deposited in the State warehouse, but deposit of incriminating vehicle, was not gatherable from, investigation record produced before the Trial Court—Inspector Incharge, warehouse, did not speak of deposit of sample along with the case property in the said warehouse—Preparation of recovery memo. was very much dubious as the said document, though pertained to seizure of incriminating narcotics, was not signed by any of the witnesses thereto—Non­-production of mobile phone, driving licence and pistol etc. before the Trial Court, despite its recovery at the spot of occurrence, had extended sufficient reason to disbelieve the version of prosecution in reference to the entire alleged recoveries—Prosecution had nowhere in the entire trial, attempted to prove that the samples allegedly separated on the spot were withdrawn from the whole lot comprising 39 packets—Prosecution, in circumstances remained unsuccessful in bringing home the charge against accused without reasonable doubt—Impugned findings of the Trial Court were set aside and accused was acquitted, in circumstances.

2010  PLD  7   PESHAWAR-HIGH-COURT

HAZRAT BAZ VS POLITICAL AGENT/DISTRICT MAGISTRATE KHYBER AGENCY

Ss. 9, 46 & 48—Constitution of Pakistan (1973), Art.199—Constitutional petition—Possession of narcotic—Appreciation of evidence—Establishment of Special Court—Trial of accused in the Tribal Areas by the Political Agent—Contention of counsel for the petitioner/accused was that where the court was not established and notified in accordance with the provisions of S.46 of the Control of Narcotic Substances Act, 1997 in the Tribal Areas, the petitioner could not be tried by the Political Agent; and that entire proceedings and subsequent orders passed by the next higher fora in the hierarchy being against law and statute were liable to be struck down—Counsel appearing on behalf of the Political Agent, on the other hand had contended that once Control of Narcotic Substances Act, 1997 was extended to the Federally Administered Tribal Areas vide notification dated 16-11-1998, the Political Agent had the powers to try the petitioner/accused—No doubt Control of Narcotic Substances Act, 1997 had been extended to the Tribal Areas, similar powers of Sessions Judge had also been conferred on the Political Agent by virtue of notification, but a Virgil” not constituted under Frontier Crimes Regulation, 1911 could not be treated as a court established in accordance with the requirements of S.46 of the Control of Narcotic Substances Act, 1997 in the light of overall scheme of said Act—In the first instance, it required establishment of Special Courts and then appointment of a Sessions Judge or an Additional Sessions Judge as a Judge Special Court after consultation with the Chief Justice of the High Court—Courts thus established and the Special Judge appointed was to try accused in the cases registered under Control of Narcotic Substances Act, 1997—If the trial terminated in conviction or acquittal, an appeal thereagainst would be to the High Court and would be heard by a Bench of not less than two Judges, when seen in the light of S.48 of the Control of Narcotic Substances Act, 1997—Held, Political Agent was not competent to try accused; and that the next higher fora in the hierarchy were not competent to hear appeal or revision—Impugned conviction and sentence awarded to accused was set aside and accused was directed to be released on bail—Federal Government was directed by High Court to take necessary measures for the establishment of a Special Court in the area in accordance with the provisions of the Control of Narcotic Substances Act, 1997.

2010  MLD  1453   PESHAWAR-HIGH-COURT

FAHIM SHAH VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Motive and rivalry, proof of—Accused in his statement under S.342, Cr.P.C. had taken the plea that he had got timber dispute with somebody and on account of said rivalry he had been involved in the case with connivance of local Police—Accused, however, had failed to establish such plea by leading any independent/cogent/reliable evidence—No allegation or proof was available to the effect that Police had any motive or ill-will to falsely involve accused in such a heinous offence–Appeal was dismissed.

2010  MLD  1453   PESHAWAR-HIGH-COURT

FAHIM SHAH VS State

Ss. 9(c) & 29—Possession of narcotics—Appreciation of evidence—Accused could not prove any motive or ill-will to falsely involve him in such a heinous offence—Accused had made no endeavour to rebut the prosecution case by discharging his burden under S.29 of Control of Narcotic Substances Act, 1997—Mere denial of charge and pleading innocence by accused without substantiating, his plea through cogent evidence was not sufficient to secure acquittal—No major material contradictions were found in statements of prosecution witnesses, who had fully corroborated each other on material aspect, such as recovery and arrest of accused on the spot—Delay of about three days in sending the samples to Forensic Science Laboratory, was insignificant, in the facts and circumstances of the case—Prosecution witnesses were subjected to very lengthy cross-examination, but no questions were asked as to whether the case property produced in the court was tampered with or not, or that the samples thereof were not sent to Chemical Examiner for testing purposes—Counsel for accused had contended that prosecution had failed to specify as to whether recovered charas was in crude or purified form—Contention of counsel of accused was repelled as neither such question was put to any prosecution witness, nor the form of charas whether crude or purified would take out the same out of the ambit of definition of `Charas’—In view of quantity of recovered charas, which was more than 10 Kg. sentence awarded to accused could not be reduced—Court had no jurisdiction to award lesser sentence than the one mentioned in the statute—Judgment of the Trial Court which was based on correct appreciation of law and proper evaluation of evidence, was maintained.

2010  MLD  1073   PESHAWAR-HIGH-COURT

MUHAMMAD SHAKIL VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Possession of narcotics—Bail, refusal of—Eight capsules each containing 50 grants of heroin were allegedly recovered from private body parts of the accused—Four out of said eight capsules had to be retrieved from his body through application of medical process–Ingenuity shown by the accused in hiding the capsules reflected that he was a trained drug trafficker—No doubt, the punishment for alleged offence was seven years’ imprisonment and High Court had considered bail petitions in similar cases, but accused’s skill in concealing the narcotic substance had raised apprehension that the accused would repeat the offence—Petitioner was not admitted to bail, in circumstances.

2010  MLD  481   PESHAWAR-HIGH-COURT

MEHBOOB-UR-REHMAN VS State

Ss. 9 & 29—Possessing narcotics—Appreciation of evidence—Both the accused persons were travelling in the car from which 18,500 grams of charas concealed beneath the front and rear seats were recovered in their presence—Prosecution had established the charge against both the accused by producing reliable and trustworthy evidence at the trial, where all the witnesses had given almost consistent statements on salient features of the case with regard to interception of the car, the recovery of charas and its weight, with minor contradiction, which could be attributed to memory lapses due to the passage of time—Chemical Examiner had returned the report holding that the contraband was Charas—Confessional statement of co-accused, who was driver of the vehicle in question, was inculpatory as he had admitted that he was transporting the charas for acquitted accused for which he was paid—Co-accused had admitted quantity to the extent of one K.G. which was under his possession and control—Confession of said accused was though exculpatory in nature, however, careful scrutiny would show that he too had given sharp twist to the story in the clever manner shifting the burden to other accused—Principle that statement/confession of an accused was to be taken in toto and no pick and choose process was to be adopted, was applicable only in those cases where the other evidence of the prosecution was disbelieved/discarded by the court which was not the case; because not only huge quantity of charas weighing 18,500 grams was recovered from the motor car which was at the relevant time in active and exclusive control of both accused persons, but also that three important. witnesses to whom no mala fide, ill-will or personal grudge had been attributed, had given evidence against accused persons; and their testimony got support from the inculpatory part of the confessional statement of both accused persons—Under the provisions of S.29 of the Control of Narcotic Substances Act, 1997, once the recovery of contraband was made from a private car which was by then in control of the two accused, the burden to explain the possession whether actual or constructive was on accused to discharge, but neither they had led any evidence in defence nor had appeared in disproof of the prosecution evidence, under S.340(2), Cr.P.C.—Charge laid upon accused had remained unrebutted—Prosecution having been able in proving the guilt of accused persons beyond reasonable doubt, Trial Court was fully justified in convicting and sentencing them to life imprisonment.

2010  PLD  498   LAHORE-HIGH-COURT-LAHORE

State VS Mst. FAZEELAT BIBI

Ss. 9(c), 15, 47 & 48—Criminal Procedure Code (V of 1898), Ss.435 & 439—Constitution of Pakistan (1973), Art. 199—Possession of narcotics—Appeal for enhancement of sentence—Competence—Accused was convicted and sentenced to two years and eleven months’ R.I. on the basis of confessional statement made by accused and complainant had filed appeal under S.48 of Control of Narcotic Substances Act, 1997 read with Ss.435 & 439, Cr.P.C. for enhancement of sentence—Contention of accused was that appeal was not maintainable as under the law State was not competent to file an appeal for enhancement of sentence; as no provision, expressly and exactly existed with regard to the enhancement of the sentence; that S.48 of Control of Narcotic Substances Act, 1997 had provided only appeal against the order of a Special Court and it was not clear as to whether appeal was against the conviction, acquittal or enhancement of sentence—Validity—Right of appeal was a creation of statute and it was granted in one place and denied in the other; it could not be read into one where it was not provided and unless a right of appeal was clearly and expressly given by the State it would not exist nor was there any scope for inferring such right by implication—There could be cases and circumstances which were not covered by the express provisions of law—Neither any provision covering such cases existed in the Code of Criminal Procedure. nor in the special law enacted for a specific purpose and it could not be said that courts had no power to do justice or to redress wrong merely because no express provision of law could be found to meet the requirements of a case—Every Court, in absence of express provisions of law for that purpose, be deemed to possess as inherent in its very constitution all such powers as were necessary to do the right and to undo a wrong in the course of administration of justice—In spite of there being ouster of power under Ss.435 & 439, Cr.P.C. revisional powers of High Court could not be taken away—By invoking the powers under Art. 199 of the Constitution, High Court could judicially review and set the proceedings in right direction—Though appeal was not maintainable, but as the appellant could invoke the constitutional jurisdiction of High Court, appeal was converted into constitutional petition.

2010  YLR  2930   LAHORE-HIGH-COURT-LAHORE

IMDAD HUSSAIN VS State

S.514—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Forfeiture of bond—Sessions Court after forfeiting the surety bonds of the petitioners submitted for the bail of accused in the case, had imposed a penalty of Rs.100, 000 each on them—In matters of sureties no lenient view should be taken and the entire amount of the bail bond should be recovered as an amount of penalty, and that the failure thereof and the reduction of penalty to the tune of 1/5th or 1/10th was simply ridiculous and encouraged the people to go into abscondence—Sessions Court while taking a lenient view had already ‘reduced the penalty imposed upon the petitioners upto 50% in the present case—Impugned order did not warrant any interference—Appeal was dismissed accordingly.

2010  YLR  2811   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD TUFAIL VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, grant of—No one was apprehended from the car being used for the transportation of the narcotics—Many persons were in the car, when it was intercepted by the Police party at the picket point—None of the prosecution witness had stated that accused was found on the driving seat of the car—Nothing was recovered from direct personal possession of the accused—Case of accused was not distinguishable from his co-accused who had been granted bail by the court—Rule of consistency also had come into play in his case—Accused was behind the bars since 16-10-2009 and previous non­ convict—Case of accused was an appropriate one to release him on bail—Accused was admitted to bail, in circumstances.

2010  YLR  2258   LAHORE-HIGH-COURT-LAHORE

SAFDAR VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 15—Possession of narcotics—Bail, grant of—Further inquiry—Charas was not recovered from the direct custody of accused—As to whether accused had knowledge of presence of narcotic in the car in question or he shared knowledge with his co-accused that they were carrying narcotic with them, was a question which would be determined after recording of evidence—Except presence of accused in the car in question, no other circumstance had come on the record indicating his connection with the offence or even the car—All those facts had made the case as one of further inquiry—Accused was admitted to bail, in circumstances.

2010  YLR  2248   LAHORE-HIGH-COURT-LAHORE

Mst. SHAMIM AKHTAR VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of Narcotic—Bail, grant of—Narcotic was recovered from the house of accused by raiding party when accused was not present in the house nor the raiding party had obtained permission from the Magistrate—Report submitted by the Trial Court had revealed that the case would be completed within three months, but needful had not been done—Accused who was a woman, was behind the bars for the last more than three years—Accused was admitted to bail, in circumstances.

2010  YLR  2068   LAHORE-HIGH-COURT-LAHORE

State VS NISAR AHMAD

1. 497(5)— Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic—Cancellation of bail, petition for—Accused was not apprehended at the spot despite the fact that a number of Police Officials along with vehicle were present and the only evidence against accused was statement of his co-accused, who was inimical to the accused—Report under S.173, Cr.P.C. had been submitted and nothing was to be recovered from the accused—Criteria for cancellation of bail was entirely different from grant of bail—Accused continuously appeared before the Trial Court and had not misused the concession of bail—Bail cancellation was declined in circumstances.

2010  YLR  2047   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ILYAS VS State

1. 497(2)—Control of Narcotic Sub-stances Act (XXV of 1997), Ss.6/9—Possession of narcotic—Bail, grant of—Further inquiry—Recovery proceedings were witnessed by the Police Officials—Case of the prosecution was not that accused was previously known to the Police Officials who conducted the alleged raid—Accused, after his apprehension in the case, was never put to the identification parade—Nothing was on record to confirm that the house from which alleged recovery was effected, was exclusively owned by accused—Case against accused, in circumstances, was of further inquiry within the ambit of subsection (2) of S.497, Cr.P.C.—Accused was granted bail, in circumstances.

2010  YLR  2046   LAHORE-HIGH-COURT-LAHORE

THE STATE through Deputy Director VS MUHAMMAD SAFDAR

1. 497(5)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 15—West Pakistan Arms Ordinance (XX of 1965), S.13—Possession of narcotics and arms—Cancellation of bail, petition for—Accused had been allowed bail by considering the maximum period for his sentence and by holding that the offence committed by accused did not fall under prohibitory clause of S.497, Cr.P.C.—Accused appeared to be ill and keeping him in jail would be injurious to his life—Case being not fit for cancellation of bail, petition for cancellation of bail, was dismissed.

2010  YLR  1335   LAHORE-HIGH-COURT-LAHORE

JOSEPH SUNDAY VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Oven from which six aluminum bags of heroin were recovered was never taken into possession by the Investigating Officer—No evidence was on record for the safe custody of the narcotic in the godown—Alleged two samples containing five grams heroin each were taken to the office of the Chemical Examiner by a person from the Customs Department, but he was neither cited as a witness in the -calendar of witnesses nor was produced as a prose­cution witness before the Trial Court—Report of Chemical Examiner in which no weight of narcotic had been mentioned, had spoken of only one packet and not two; while according to case of the prosecution two packets containing five grams of heroin were sent to the Chemical Examiner—Though considerable quantity of heroin was allegedly recovered from accused, but the prosecution` had failed to prove its case against accused beyond any shadow of doubt; doubts were floating on the surface of record—Impugned judgment of the Trial Court convicting and sentencing accused was set aside and accused was acquitted of the charge and was released.

2010  YLR  959   LAHORE-HIGH-COURT-LAHORE

Rana FAZAL GHAFFAR VS State

1. 9(b)—Possessing narcotics—Closing of evidence—Petitioner was aggrieved of order of the Trial Court, whereby the right of cross-examining the witnesses, already bound by the court to appear in person, was closed on the ground that one witness, was absent on the day—Matter was pending before the Trial Court and in case the notice was issued to the State, the case would be lingered on as order made by the Trial Court appeared somewhat harsh; because either the said witness who was already bound down should have proceeded against for non-appearance or might have been given up by the prosecution in order to get recorded the remaining witnesses—Petition was accepted with the direction to the Trial Court that at least one opportunity be given to the petitioner to cross-examine the witness, if they along with other relevant witnesses were present—If the other witnesses were not made present, despite services of notices, appropriate steps betaken against them for presence before the court including issuance of bailable or non-bailable warrants.

2010  YLR  765   LAHORE-HIGH-COURT-LAHORE

State VS ZULFIQAR ALI

1. 497(5)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic—Petition for cancellation of bail—Investigating Officer, present in the court was not ready to take oath on the Holy Quran that case was registered against accused on true facts—Even otherwise, the criteria for the grant of bail and cancellation of bail was entirely different and the bail granted to accused, could not be cancelled only on the ground that accused remained in jail for one month and 26 days—Trial Court, in circumstances, had rightly granted bail to accused while exercising its discretion and no reason existed to interfere with the discretion exercised by the Trial Court—Case being not fit for cancellation of bail, petition for cancellation of bail, was dismissed.

2010  YLR  701   LAHORE-HIGH-COURT-LAHORE

GHULAM MUSTAFA VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic—Bail, grant of—Case of accused was identical to the case of co-accused who had already been allowed bail by the High Court—Accused was also admitted to bail, in view of the rule of consistency.

2010  PCrLJ  1728   LAHORE-HIGH-COURT-LAHORE

IMTIAZ VS State

1. 426—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Suspension of sentence—Application for—Applicant/accused had prayed for suspension of his sentence—Trial Court in impugned judgment had observed that extreme penalty of death was not awarded to accused, because, he was neither owner nor driver of the truck, but just a helper of the truck; that co-accused had not been arrested by the Police; and that accused was very poor person and not in a position to purchase such a huge quantity of Charas himself—Such observations of the Trial Court had rendered the case of accused to be the one requiring reappraisal of the evidence on record to see that, if he, in such circumstances, could be convicted under the said offence or that his conviction and sentence could be maintained—Accused was arrested on 14-5-2007 and since then he was continuously suffering detention—No likelihood was in the sight that an early hearing of his appeal would be possible—Sentence of accused was suspended, in circumstances.

2010  PCrLJ  1663   LAHORE-HIGH-COURT-LAHORE

WAHEED GUL VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Accused was driving the car from the, secret cavities of which sixty kilograms of “charas” was recovered and he would be presumed to be in possession of the said narcotic—Question of ownership of the car in this context was irrelevant—Prosecution had discharged its initial burden by proving the possession of “charas” of accused, who had failed to rebut the same as required under section 29 of the Control of Narcotic Substances Act, 1997—Conviction and sentence of accused were upheld in circumstances.

2010  PCrLJ  975   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AZAM VS State

1. 9(c)—Possessing narcotics—Appreciation of evidence—Sentence, reduction in—Prosecution witnesses had fully supported the prosecution case—Prosecution witness who was put to cross-examination had successfully answered the question put to him regarding recovery of contraband—Recovery witnesses remained constant on material points regarding the time, place and the manner in which the recovery was effected from accused persons—As far as presence of accused persons at the spot and recovery of 12 kilograms of Charas from the dickey of the car was concerned, counsel for accused persons had remained unable to point out any material contradiction which would lead the Court to understand that the recovery of narcotic substances and presence of accused persons was not established at the spot—Even otherwise none of the prosecution witnesses had any enmity to falsely implicate accused in the case by planting a huge quantity of Charas upon them—Said recovery had found full support from the report of the Chemical Examiner, which was positive and available on the record—Counsel for accused had failed to create any dent in the prosecution version—Investigation even if was conducted by an incompetent Police Officer, could not be challenged during the trial as per S.156(2), Cr.P.C.—Accused had failed to show that as to what prejudice was caused to them by conducting of investigation by the complainant/Police Official—Conviction recorded against accused persons by the Trial Court, was maintained, in circumstances, however, it was found that the samples were not taken from each slab—Contraband weighing 10 grams which was allegedly separate& from each packet, was not from the whole contraband—Accused persons, in circumstances, could not be sentenced while taking into consideration the total contraband and the proviso of S.9(c) of Control of Narcotic Substances Act, 1997, would not attract—Case was not fit for maintaining the sentence of imprisonment for life which was reduced to imprisonment for 14 years each—Fine however was maintained.

2010  PCrLJ  900   LAHORE-HIGH-COURT-LAHORE

Mst. RASHIDA BIBI VS State

S.9(c)—Possession of Narcotics—Appreciation of evidence—Police officer could legally act as a complainant as well as an Investigating Officer, unless the accused was prejudiced by such action—No such objection had been raised during the trial, nor the same had been put to the relevant police officer even as a suggestion in his cross­examination—Application of section 103, Cr.P.C. having been excluded by section 25 of the Control of Narcotic Substances Act, 1997, objection about non-association of any private witness in the recovery proceedings, had no substance—Complainant police officer was a witness to the recovery of “Charas” weighing six kilograms from the accused—Report of Chemical Examiner was in positive—Conviction and sentence of accused were maintained in circumstances.

2010  PCrLJ  900   LAHORE-HIGH-COURT-LAHORE

Mst. RASHIDA BIBI VS State

S.9(c)—Possession of narcotics—Appreciation of residence—Police officer performing dual duty of the complainant as well as of an Investigating Officer—Competency—Police Officer is not legally prohibited to be a complainant if he is a witness to the commission of an offence and also to be an Investigating Officer, so long as it does not in any manner prejudice the accused—Court will have to form its opinion after appraising and evaluating the entire prosecution evidence.

2010  PCrLJ  583   LAHORE-HIGH-COURT-LAHORE

FATIMA BIBI VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)-Bail, grant of—“Charas” weighing 1250 grams was recovered lying on a cot in the house of accused—Accused woman was in jail for the last more than five months—-Report of Chemical Examiner having not been so far received, recovered substance could not for the time being be said to be “Charas “—Accused was pursuing the case of the husband in which complainant was a constable of Elite Force and the possibility of his having manoeuvred her implication in the present case, could not be ruled out—Accused was a woman with no previous record and her case fell within the first proviso to S.497, Cr.P.C.—Accused was admitted to bail in circumstances.

2010  MLD  1891   LAHORE-HIGH-COURT-LAHORE

Mst. ZOHRA BIBI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 15-Possession of narcotics—Bail, grant of—Quantity of narcotics recovered from accused was on the upper limit prescribed in S.9(b) of Control of Narcotic Substances Act, 1997—Accused was stated to be previous non-convict and behind the bars since 14-7-2010, (date of arrest)—Accused was admitted to bail, in circumstances.

2010  MLD  1854   LAHORE-HIGH-COURT-LAHORE

Syed MOHSIN RAZA VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 15—Possession of narcotics—Bail, grant of—Two co-accused had already been admitted to bail and case of accused was not distinguishable from them—Rule of consistency would come into play in case of accused, in circumstances—Accused was released on bail, in circumstances.

2010  MLD  1045   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD RASHID VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 15—Possessing narcotic—Bail, refusal of—Narcotic allegedly recovered from accused was of heavy quantity—Control of Narcotic Substances Act, 1997 was a special enactment having its own scheme and object—Intention of the legislature was evident from its different provisions that it was designed to curb the menace of narcotic drugs in the society, which was speedily increasing day by day—Offence with regard to narcotics, was not only against the society, but the mankind as well and thus entailed heavy punishment—Side of accused had not been able to show anything to say that accused had been involved in the case for any ulterior motive of the complainant or others—Each criminal case was to be adjudged in the background of its own facts and circumstances—Accused, in view of circumstances, was not entitled to bail; his bail petition was dismissed.

2010  MLD  773   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD NADEEM VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 25—Possession of narcotics—Bail, grant of—“Charas” weighing four kilograms was allegedly recovered from the possession of accused—Accused was behind the bars for the last three years anti only two prosecution witnesses had so far been examined in the case by Trial Court—Conclusion of trial in the near future was not likely—Early decision of the case was right of accused—Accused was not responsible for delay in conclusion of the trial and he could not be kept in jail for an indefinite period—Bail was allowed to accused in circumstances.

2010  YLR  3240   KARACHI-HIGH-COURT-SINDH

RAEES KHAN JADON VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Accused did not press his appeal against judgment of the Trial Court on merits, but had prayed that impugned sentence and fine awarded to him by the Trial Court be reduced to that of already undergone by him—Accused who was first offender, claimed to be the sole bread earner of his family—Out of total sentence of 7 years and 3 months awarded to him by the Trial Court, accused had served out sentence of 4 years, 11 months and 3 days, including remissions—Sentence of 7 years’ R.I. awarded to accused by the Trial Court was modified to that already undergone by accused, in circumstances, and he was ordered to be released.

2010  YLR  2910   KARACHI-HIGH-COURT-SINDH

MUHAMMAD MUDASIR VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(b)—Possession of narcotics—Bail, grant of—Accused could be imprisoned for seven years and the .offence did not fall within the prohibitory clause of S.497, Cr.P.C.—Recovery memo had shown discrepancy in the actual weight of heroin recovered—Bail was granted.

2010  YLR  2815   KARACHI-HIGH-COURT-SINDH

ATIF SHAHAB VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Case of co-accused was on different footings—Contention of counsel of co-accused was that co-accused was a passenger in the bus and had no connection with the Charas, however, during evidence, co-accused had failed to produce any ticket for his journey—Even if it was presumed that co-accused was only a passenger, then he should have disembarked at the bus stop—Spy informer had specifically named the co-accused as one of the smugglers and was connected with the contraband goods–Prosecution had proved its case against said co-accused beyond any reasonable doubt and counsel for said co-accused had not been able to shake the evidence produced by the prosecution with regard to date, time and recovery of contraband items and presence of co-accused in the bus at the time of recovery of the Charas-Counsel for co-accused had not been able to point out any material contradiction/ discrepancy in the evidence recorded against co-accused— No substantial material had come on record to show that prosecution witnesses had any enmity or ill-will against co-accused to falsely implicate him in the case—Report of the Chemical Examiner also fully supported the case of prosecution—Prosecution having proved its case against co-accused beyond any reasonable doubt, his conviction and sentence, was maintained.

2010  YLR  2815   KARACHI-HIGH-COURT-SINDH

ATIF SHAHAB VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence—Benefit of doubt—Charas was not recovered from the possession of accused, but was recovered from some hidden place in the bus after search by the Anti-Narcotics Force—Accused did not object to the search of the bus and was quite cooperative with the Police party while other inmates of the bus objected to the same which had clearly shown the possibility that it was not within the knowledge of accused that Charas was in the bus—Spy informer did not give the name of accused as one of smugglers, nor the prosecution had placed on record any confidence-inspiring evidence to connect the accused with the contraband items seized from the said bus—Owner of the bus in question was not involved in the case—If accused was driver of the said bus, then he was in the employment of the owner of the bus; and that fact should have been proved by involving the owner of the bus either as an accused or as a witness, but owner was not at all connected with the case and was completely ignored—No incriminating material was available against the accused which could be made basis for his conviction and sentence as neither the factum that the said accused was driver of the bus was proved beyond any reasonable doubt nor it was proved that he was connected with the recovered Charas in any manner—Conviction and sentence awarded to accused by the Trial Court, was set aside by giving him benefit of doubt—Accused was acquitted of the charges levelled against him and was released.

2010  YLR  2807   KARACHI-HIGH-COURT-SINDH

KHASTA KHAN VS State

1. 9(c)—Possession of narcotics—Appreciation of evidence— Sentence, reduction in—No material contradictions and discrepancies were found in the prosecution evidence, which could persuade the court to extend benefit of doubt towards accused—Prosecution had succeeded in establishing the guilt against accused beyond any shadow of doubt—No illegality existed in the judgment passed by the Trial Court which was well-reasoned judgment— Impugned judgment was, in circumstances unexceptional and conviction and sentence awarded to accused did not call for any interference—Appeal filed by accused against judgment of the Trial Court was dismissed, in circumstances—Accused was first offender and prosecution had not brought any document or any evidence to show that accused was previously involved in drug­ trafficking—During personal search, nothing was recovered from possession of the accused—Accused, in circumstances needed to be given chance to his life to rehabilitate himself—Accused seemed to be young-man—High Court dismissing appeal of accused, reduced his sentence from life imprisonment to ten years’ imprisonment—Benefit of S.382-B, Cr.P.C. already extended to accused, would remain intact.

2010  YLR  2617   KARACHI-HIGH-COURT-SINDH

THE STATE/ANTI NARCOTICS FORCE VS MUHAMMAD SIDDIQ

Ss.6 & 9 (c)—Qanun-e-Shahadat (10 of 1984), Art.129(g)—Criminal Procedure Code (V of 1898), S.417—Possession of narcotics (Charas 15400 grams and opium one Kg.)—Appreciation of evidence—Appeal against acquittal—Prosecution had not produced entry-number of leaving Police Station by complainant Inspector, according to his deposition, entry of depar­ture was maintained—Memos. of recovery and arrest, F.I.R. and statements under S.161, Cr.P.C., did not find mention entries of departure from and return to Police Station and registration of mobile vehicle–Complainant Inspector during cross-examination had admitted to be head of raiding party, complainant, Seizing Officer, Investigating Officer, Incharge Malkhana and Additional S.H.O.—Practice of Investigation Officer and complainant to be same for hindering independent investigation was against spirit of independent investigation—Complainant Inspector was wearing six caps simultaneously, which casted serious doubt about independent investigation having been conducted in the present case—Nothing on record to show that complainant Inspector was working in Investigation Wing, when he conducted investigation of the present case—Such fact alone going to root of case and being a material flaw in prosecution case would make whole investigation coram non judice—Memos. of arrest and recovery did not find mention of date of recovery of opium, colour of handbag from which Charas was secured and number of Charas patties and rods—Denomination of currency notes recovered from accused had not been mentioned in any document—Signatures of Mashirs of packets of Charas and opium had not been mentioned—Police Constable having deposited narcotic substances with Chemical Analyzer had not been cited as witness in charge-sheet-Non-production of such best evidence by prosecution had not only broken important link of prosecution case, but would lead to adverse inference drawn against prosecution—Appeal against acquittal was dismissed.

2010  YLR  2387   KARACHI-HIGH-COURT-SINDH

AIJAZ ALI SHAH VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing narcotic—Bail, grant of—Quantity of charas involved in the case, did not exceed one Kg., which had made it a borderline case and in such like case the courts had granted bail—Recommended sentence for a conviction in respect of the quantity of charas involved in the case was only four years and six months—Even if accused was ultimately convicted of the offence, his sentence could hardly be the maximum punishable for a conviction under S.9(c) of Control of Narcotic Substances Act, 1997 or anywhere near that sentence—There did not appear to be any exceptional or aggravating circumstances in the case as would disentitle accused from the grant of bail—Accused was admitted to bail, in circumstances.

2010  YLR  2297   KARACHI-HIGH-COURT-SINDH

KHADIM HUSSAIN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9—Possessing narcotic—Bail, refusal of—Challan of the case had been submitted—In absence of any document on record, neither it could be agreed nor disagreed with prosecution that it was the accused who was delaying proceedings of the trial—Threshold quantity under S.9(c) of Control of Narcotic Substances Act, 1997 was 1000 grams, whereas quantity recovered in the case was 1500 grams which was 50% more than the threshold quantity—It would not be reasonable to classify 50% as marginally more—Trial Court had rightly observed that provisions of S.103, Cr. P. C. were not attracted to narcotic cases as provided under S.25 of Control of Narcotic Substances Act, 1997—Moreover, when an independent person was not willing to be a witness, it would be difficult to come to the conclusion that he would be eager to disclose his name—As offence against accused fell within the prohibitory degree under S.497, Cr.P.C., bail application of accused was rejected.

2010  YLR  2276   KARACHI-HIGH-COURT-SINDH

KHUDA BUX VS State

1. 9(c)—Possessing narcotics—Appreciation of evidence—Complainant in the case had acted in his dual capacity as complainant and Investigating Officer, while prosecution witness was his sub­ordinate—Two co-accused who were also tried by the same court, were acquitted in the same judgment by disbelieving evidence of the complainant and the witnesses against them and that position was intact as no appeal against acquittal had been filed by the department—Accused was cross-examined by the Special Public Prosecutor, but no material point was collected by the prosecution from cross-examination of accused—Evidence of defence witnesses also supported the version of accused about his false implication by the complainant—Accused took efforts to establish his innocence, but defence plea of accused was not considered by the Trial Court and he was convicted—Accused having been fully established to have been falsely implicated by the complainant at the instance of one with whom accused had dispute, his conviction could not be sustained and same was set aside.

2010  YLR  2255   KARACHI-HIGH-COURT-SINDH

ABDUL GHANI @ GHANO VS State

1. 9(c)—Penal Code (XLV of 1860), S.353—West Pakistan Arms Ordinance (XX of 1965), S.13(e)—Possessing narcotics and arms and assault or criminal force to deter public servant from discharge of his duty—Appreciation of evidence—Sentence, reduction in—Witnesses of the prosecution gave the evidence in support of the case and defence had failed to shatter the same in cross-examination—Trial Court had rightly concluded that the alleged narcotic substances were secured firstly from the personal possession of accused; and secondly from his house on his pointation, in the respective quantity mentioned in the common memo, before the official witnesses—Expert report had also been obtained in the matter in regard to secured narcotic substances, which was in the affirmative—No reason was available in the matter disregarding the witnesses to any extent, as to the apprehension, search, recovery and arrest—Defence not only seemed to have failed to shatter the prosecution evidence in cross-examination, but also failed to take any specific defence as to the alleged innocence of accused throughout the case—Huge amount of Rs.696,579 was recovered from the house of accused; and it was hard to assume that such a huge amount could be foisted just to falsely implicate the accused—No infirmity was found in the impugned judgment of the Trial Court whereby accused was convicted and sentenced—Appeal against acquittal being devoid of force was dismissed, however, accused was first offender and sole bread-earner of his family, while dismissing his appeal, quantum of sentence awarded to accused was reduced from seven years’ R.I. to that of five years’ R.I., without disturbing the findings as to imposition of fine of Rs.100, 000.

2010  YLR  2238   KARACHI-HIGH-COURT-SINDH

1. SHAFQAT IMRAN VS HE STATE through M.C.C. (Preventive) Office of D.E.C., JIAP, Karachi

S.497— Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic—Bail, refusal of—Quantity of heroin powder allegedly recovered from accused being 3 kgs. offence fell under S.9(c) of the Control of Narcotic Substances Act, 1997—Prima facie, allegations of transportation of narcotic being against accused; S.7 of Control of Narcotic Substances Act, 1997 was attracted—Since it was alleged that bag containing heroin fell from the van and van was being operated by accused, accused would be in constructive possession of the bag in question, S.6 of Control of Narcotic Substances Act, 1997 would also be attracted—Accused had been named in the F.I.R. and they were directly and clearly implicated—Accused, in circumstances were not entitled to facility of bail.

2010  YLR  2170   KARACHI-HIGH-COURT-SINDH

SHAHID HUSSAIN VS State

1. 9(c)— Possession of narcotic—Appreciation of evidence—Sentence, reduction in— Counsel for accused submitted that they would not dispute the conviction of accused and also would not press the appeal and had requested that sentence awarded to accused could be reduced to that already undergone and the fine could also be reduced—Record had reflected that accused was in custody since his arrest from 24-10-2003 till date—Accused was stated to be first offender and had shown his remorse and penitence as convict and since he had served substantive sentence of more than seven and half years including the remission, accused deserved leniency—High Court while dismissing the appeal of accused as not pressed and maintaining the conviction awarded to hint, reduced the sentence from ten years to one already undergone and also reduced the fine from Rs.25,000 to Rs. 5,000.

2010  YLR  2166   KARACHI-HIGH-COURT-SINDH

ZAHID HUSSAIN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 9(c)—Bail, refusal of—Accused was the conductor of Bus from where 24 Kgs of `Garda Charas’ was recovered from its upper portion—Said Bus was coming all the way from Peshawar to Karachi and it would be improbable that accused/conductor would not know the nature of his cargo considering the long journey undertaken by the bus—Punishment for an offence falling under S.9(c) of the Control of Narcotic Substances Act, 1997, was death or imprisonment for life—Bail application of accused was dismissed.

2010  YLR  2005   KARACHI-HIGH-COURT-SINDH

PERVAIZ KHAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c) & 21—Possession of narcotic —Bail, refusal of—Section 21 of the Control of Narcotic Substances Act, 1997, was applicable to cases of recovery effected from a building, place, premises or conveyance and not to the recovery of narcotics from the personal search of a person, as in the present case–Assistant Sub-Inspector of Police, therefore, was competent to search and arrest the accused—“Charas” weighing 1200 grams having been recovered from the accused, his case was not a borderline case so as to fall within the ambit of section 9(b) of the said Act, because amount exceeding the prescribed limit of 1000 grants by 20% could not be treated as marginal, although the quantity of narcotics exceeding upto 10% of the prescribed limit might be treated as a marginal case—Small but reasonable quantity of 10 grams “Charas” had been taken as sample from the packet recovered from the accused for sending to Chemical Examiner for analysis, which did not suffer from any wrong, because the entire quantity was not required to be sent for such purpose—Recovery of narcotics having been effected from the accused by the police at midnight, association of any private person with the recovery proceed­ings was not possible, as explained in the F.I.R. itself—Bail was declined to accused in circumstances.

2010  YLR  1770   KARACHI-HIGH-COURT-SINDH

NADEEM DETHO VS State

Ss.9(c) & 49—Possession of narcotics–Appreciation of evidence—Sentence, modi­fication of—Both prosecution witnesses who deposed ocular account, were cross-examined, but their evidence was unshaken—Statements of said witnesses were in clear terms that accused was apprehended by them on spy information and that he was possessing Charas in a huge quantity—Fifteen slabs of Charas weighing 15 K.Gs., allegedly were recovered from the possession of accused, but only 500 grams Charas was taken out as sample and was referred to the Chemical Analyzer for his expert opinion–Prosecution evidence was concrete so far as the recovery of Charas related, but the fact remained that the prosecution case was ambiguous as sample from each slab was not taken—Accused, in such a situation and peculiar circumstances, could only be held responsible for commission of offence on account of recovery of 500 grams only—Accused could not be held responsible for the rest of recovered Charas from which no sample was taken out and same remained unexamined and uncertified—Contradictions in the depositions of both prosecution witnesses were minor in nature and not fatal to the prosecution case—When the punishment was provided on the basis of quantum of recovery of narcotic, then it should be the main criterion for the prosecution to establish that entire recovered substance was a narcotic etc. and for that purpose it had to take all precautions and make the case fool proof—Case property remained in possession of complainant which was State through the Police, which was a matter of concern—Accused could not be left at the mercy of police who were appearing in such type of cases as a complainant, witness and custodian of property–Impugned judgment required interference by High Court to the extent that the prosecution case on the basis of evidence produced on the record had proved its case beyond any shadow of doubt and brought guilt of accused for the commission of offence on account of recovery of 1 K.G. contraband Charas—Impugned judgment was modified and case against accused stood proved for an offence which fell under S.9(b) of the Control of Narcotic Substances Act, 1997—Accused, in circumstances was liable to be convicted and sentenced for recovery and imprisonment for 7 years and fine—Conviction and sentence awarded by the Trial Court, modified by the High Court would be enough to serve out the purpose of justice.

2010  YLR  1660   KARACHI-HIGH-COURT-SINDH

SAQIB ASGHAR SHAIKH VS State

Ss. 9(c), 14 & 15—Criminal Procedure Code (V of 1898), S.561-A—Possession of narcotics—Quashing of F.I.R. and proceedings, application for—Record had shown that no incriminating evidence was available against accused connecting him with the alleged crime in any manner whatsoever—Presence of accused with co-accused, if any, alone by itself, did not connect him with the alleged offence—Mens rea of accused was also not open to be established as the investigation was over and no evidence was collected to show that he had knowledge of the presence of the narcotic substance with co-accused; and that he had been a party to what role was said to have been played by co-accused in the case—Co-accused already stood acquitted under S.249-A, Cr.P.C. for want of incriminating evidence and such order had not been challenged in appeal by authorities—Case of accused was also likely to meet the same fate and ultimately, if the proceedings would go on, Court would not be able to convict accused in the crime in question for want of positive incriminating evidence; and proceedings, would bear and carry a status of futile exercise and abuse of process of law—Trial Court did not appear to have properly appreciated the material on record—Application filed by accused for quashing of F.I.R. and proceedings was allowed and proceedings culminating from F.I.R., stood quashed.

2010  YLR  1610   KARACHI-HIGH-COURT-SINDH

Miss FAREEDA VS State

1. 497, Proviso fifth—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing narcotics—Bail, grant of—F.I.R. had alleged that accused a woman was apprehended and 5 Kgs of charas was alleged to have been recovered from her possession and that she was apprehended by complainant party on the pointation of co-accused who during the course of interrogation alleged that she had purchased the narcotics from the accused—Accused, in circumstances was in custody for the last more than 8 months; and trial had not been con­cluded— Accused in circumstances was entitled to bail under fifth Proviso of S.497, Cr. P. C. —Accused having made out a case for grant of bail, she was granted bail, in circumstances.

2010  YLR  1322   KARACHI-HIGH-COURT-SINDH

THE STATE/ANTI NARCOTICS FORCE through Deputy Director (Law), Karachi VS MUHAMMAD ADEEL HUSSAIN

Art. 157 & S.5—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c), 46 & 48—Criminal Procedure Code (V of 1898), S. 417—Possessing narcotics–Appeal against acquittal-Limitation–Condonation of delay, application for—Appeal against order of acquittal was filed with delay of 17 days along with application for condonation of delay—Applicant had neither given any plausible or justifiable reasons for delay in filing appeal, nor had explained delay of each day—Appellant having not been able to make out a case for condoning the delay in filing of the appeal, appeal and application for condonation of delay were dismissed.

2010  YLR  1157   KARACHI-HIGH-COURT-SINDH

NAIMATULLAH KHAN VS THE STATE through Anti-Narcotics Force, Sindh, Karachi

1. 540— Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9—Object of S.540, Cr.P.C.—Possessing narcotic—Application for recalling and re-examination of witness already examined and cross-examined—Application for recalling and re-examination of the Investigating Officer, who was already examined, had been dismissed by the Trial Court—Validity—Court was seized of ample jurisdiction to summon, recall and re-examine any person who had already been examined, provided such recall and re-examination was essential to the just decision of the case—Said powers were not to be exercised in a routine or mechanical manner or as a matter of course—Before exercising such power, the court had to apply its mind objectively to the fact that re-examination of such witness appeared to be essential to the just decision of the case—Once applicant chose not to raise any objection for the examination of the Investigating Officer who was also the complainant and seizing officers in the sequence in which the prosecution led its evidences, not much was left to object to such course after the examination of the Investigating Officer, unless in subsequent evidence any incriminating piece of evidence or material had come on record that needed to be confronted to the Investigating Officer for the purpose of unearthing the truth—In the present case, sole witness in addition to the Investigating Officer was in the witness box and had not been cross-examined by the petitioner and it was not the case of the petitioner that the witness under cross-examination had produced any incriminating material that needed to be confronted to the Investigating Officer–Object of S.540, Cr.P.C. was not to clothe accused with a tool to protract the trial or fill up the lacuna where the accused did not object or take any exception to the sequential order of examination of prosecution witness in the order and manner considered appropriate by the prosecution, later on such course could not be objected to nor furnish a good ground—Application for recalling and re-examination of witness, was rightly dismissed, in circumstances.

2010  YLR  844   KARACHI-HIGH-COURT-SINDH

RAHIB ALI VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss. 9 & 25—Possession of narcotic—Bail, grant of—Further inquiry—Only one K.G. of Charas in shape of pieces was allegedly recovered from accused, but neither number of pieces nor weight of each piece was given nor it was mentioned that from which piece of Charas ten grams was separated for chemical analysis—Accused could not be held responsible for joint recovery; as pleaded by prosecutor that on his information further 12 K. Gs. of Charas was recovered from the house of co-accused—Prosecution case was not that accused was relative of co-accused and it was not mentioned in the F.I.R that on whose information accused came to know about presence of Charas in the house of co-accused—Accused at the most, could be held responsible for quantity of one K.G. which was allegedly recovered from him and it fell under S.9 (b) of Control of Narcotic Substances Act, 1997, which did not fall within prohibitory clause of S.497, Cr. P. C. —Sample was not taken from each piece of Charas and ten grams of Charas fell under S.9(a) of Control of Narcotic Substances Act, 1997, which carried punishment of two years—Accused had made out a case of further inquiry–Accused was enlarged on bail, in circumstances.

2010  YLR  794   KARACHI-HIGH-COURT-SINDH

AACHAR VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)–Possession of narcotic—Bail, grant of—Documentation made at the time of recovery showed that samples were taken from each piece, but it was not mentioned that what was the quantity taken from each piece recovered out of 1250 grams from which only 10 grams were sent for Chemical Examina­tion—In the present case the Control of Narcotic Substances (Government Analysts) Rules, 2001 had been violated, which also created doubt about the genuineness of recovery—Substance recovered had not properly been mentioned separately so far as the quantity separated was concerned, the exact quantity had become doubtful—Where quantity of narcotic substance was found marginally higher than 1000 grams, bail was invariably granted to accused—Accused having made out a case for grant of concession of bail, bail was granted.

2010  YLR  731   KARACHI-HIGH-COURT-SINDH

TARIQ MEHMOOD VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Possession of narcotic—Bail, refusal of—Offence against accused was non-bailable—Bail, in each and every case could not be granted, unless the fact and circumstances so permitted—Recovery had been shown and Chemical examination was positive—Facts; and circumstances of each offence were peculiar for different in each incident and findings in one case could not be taken to apply in all its aspects to the other case—Bail was refused in circumstances.

2010  YLR  646   KARACHI-HIGH-COURT-SINDH

NIZAMUDDIN VS State

S.497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51—Possession of norcotic—Bail, grant of—Further inquiry—When recovery of 1100 grams charas was made from accused, he was not entitled for bail due to the bar of S.51 of the Control of Narcotic Substances Act, 1997, especially when direct evidence was available against accused—Counsel for accused, however, had not argued the case on merits and instead he had demonstrated the mala fides and ulterior motives against Police Officer—Matter required further enquiry when the honest officer had conducted enquiry and reached the conclusion that cases registered against accused were false—Prosecution though had not filed application under S.494, Cr.P.C. for withdrawal of the case before the trial court, but prima facie, the case required further inquiry—Accused, in circum­stances, was entitled for bail.

2010  YLR  622   KARACHI-HIGH-COURT-SINDH

RIZWAN AHMED VS State

Ss.6 & 9—Possession of narcotic—Appreciation of evidence—Fine, reduction in—Recovery of narcotic was made from the possession of accused which was sent to the Chemical Examiner—No discrepancy was noticed in the oral evidence regarding case property and Chemical Examiner’s report—Accused had sought reduction in the sentence awarded to him on the ground of mercy—Such prayer could not be entertained as in such like cases courts were required to award adequate punishment instead of showing sympathy—No case was made out requiring interference in the impugned judgment—Conviction and sentence awarded to accused were maintained, however fine was reduced from Rs.50,000 to Rs.10,000.

2010  YLR  602   KARACHI-HIGH-COURT-SINDH

MANZOOR VS State

Ss. 9(c) & 25—Possession of narcotic–Appreciation of evidence—Official wit­nesses were as good as any independent witness—Simply for the reason that they being official witnesses, their evidence against accused should not be believed and same should be discarded, was not a sufficient ground—If defence side wanted that the evidence of the official witnesses should be discarded, it had to establish that the prosecution witnesses were hostile towards accused and had reason to falsely implicate him—Nothing of the sort in that regard was available on the record to show that there was any reason for the official witnesses to falsely depose against accused—Under S.25 of Control of Narcotic Substances Act, 1997, applicability of S.103, Cr.P.C. having been excluded, contention of counsel for accused regarding non-calling of the person from locality to witness the alleged recovery, did not carry any weight—Press clippings were neither relevant nor admissible in evidence, when accused had not examined the reporter of the newspaper who had given the report about the recovery of narcotics from the person other than accused—So far as examination of private person by accused in his defence was concerned, it was observed that the evidence of those defence witnesses was neither confidence inspiring nor convincing—Prosecution witnesses examined in the case had been consistent in their evidence regarding place, from where accused was arrested, about the time of arrest of accused and recovery of 20 kgs Charas effected from his possession—Both the witnesses of the  prosecution in their evidence had supported each other on material points; nothing was on record to justify that their evidence should not be relied upon—Prosecution, in circumstances, had succeeded to prove its case against accused beyond any reasonable doubt—Judgment of the Trial Court which was quite correct and proper according to the facts and circumstances of the case and the law applicable, did not require any interference by the High Court.

2010  YLR  451   KARACHI-HIGH-COURT-SINDH

MIRAN BALOUCH VS State

Ss.426 & 561-A—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic—Suspension of sentence—Application for—Accused was suffering from paralysis since 2004 and since that time no improvement was seen in his condition as neither he could walk nor sit as per report of the Doctors—Accused was being constantly advised since beginning to have physiotherapy, but no such facility was available in jail—If such situation was allowed to continue, same would be quite hazardous to life of accused and would also serve no useful purpose—Case for suspension of sentence and grant of bail having been made out, sentence awarded to accused was sus­pended and he was ordered to be released on his furnishing surety.

2010  YLR  447   KARACHI-HIGH-COURT-SINDH

ABDUL MANAN VS State

Ss.9(c)—Possession of narcotic—Appreciation of evidence—Evidence of Police Officials—Police Officials could be good witnesses like ‘any other witnesses from the public, unless sufficient evidence was available to exclude their evidence from consideration.

2010  YLR  447   KARACHI-HIGH-COURT-SINDH

ABDUL MANAN VS State

Ss.9(c) & 25—Possession of narcotic—Appreciation of evidence—Witnesses were consistent on the material point and minor discrepancies pointed out were not sufficient to discredit the statements of said witnesses—No enmity or grudge was alleged against the complainant or the Prosecution witnesses to falsely implicate accused persons—Violation of S.103, Cr. P, C., carried no weight in view of S.25 of Control of Narcotic Substances Act, 1997, which had specifically ousted application of S.103, Cr. P. C. —Chemical Examination Report, was positive with regard to narcotics recovered from accused—Both the prosecution witnesses were consistent that accused persons claimed ownership of bag containing narcotics—Defence plea to the effect that the narcotics were produced from local market was vague—Prosecution had produced sufficient material to connect accused persons in the commission of crime—Sentence awarded to accused persons was proper—Impugned judgment not calling for interference, appeal stood dismissed.

2010  YLR  441   KARACHI-HIGH-COURT-SINDH

MUHAMMAD SULLEMAN JATOI VS State

S.9(c)—Possession of narcotic—Appreciation of evidence—Sentence, reduction in—Statements of the prosecution witnesses were in clear terms that accused was apprehended by them and the charas was recovered from the jeep which was being driven by him—Record revealed that 30 bundles of charas were recovered from the jeep; each of the bundle was weighing one kilogram–Prosecution in the case had led impeachable evidence, so far recovery of contraband charas was concerned; so also the arrest of accused on the spot—Only four bundles weighing four kilograms were referred to the Chemical Analyzer for his expert opinion—F.I.R. showed that the sample was not taken out from each bundle–Prosecution evidence was concrete so far as recovery of charas related, but the fact remained that the prosecution case was ambiguous; as sample from each bundle was not taken—Accused in such situation and under peculiar circum­stances, could be held responsible for commission of offence on account of recovery of four kilograms only—Legally speaking accused could not be held responsible for the rest of the recovered charas for which no sample whatsoever was taken out and same remained unexamined and uncertified—When the punishment was provided on the basis of quantum of recovery of narcotic, then it should be main criteria for the prosecution to establish that entire recovered substance was narcotic and for that purpose it had to take all precautions and make the case fool proof—Case against accused was to be proved till finished by establishing that accused was involved in the matter of specific quantity of narcotic substance of which allegation had been levelled—Case property remained in possession of complainant, which was a matter of concern as it could happen that Police Officials, could sometime change the narcotic substance with other similar substance to gain some money—Impugned judgment required interference by the court to the extent that the prosecution on the basis of evidence adduced on the record had proved its case and brought home the guilt of accused for the commission of offence on account of recovery of four kilograms contraband charas; and case against accused stood proved for an offence which fell under S.9(c) of Control of Narcotic Substances Act, 1997; but since accused was a young man aged about 29/30 years; and was a first offender, while taking lenient view, conviction and sentence awarded to accused was modified to lesser punishment—Conviction and sentence awarded to accused by the Trial Court for imprisonment to life and fine of Rs.100,000, was reduced to that of fourteen years and fine Rs. 20,000.

2010  YLR  254   KARACHI-HIGH-COURT-SINDH

ABDUL QADIR VS State

Ss.9(c) & 74—Criminal Procedure Code (V of 1898), Ss. 435, 439 & 516-A— Custody of vehicle—Application filed by the applicant under S.516-A, Cr.P.C. for releasing vehicle in question having been dismissed by the Special Court, applicant had filed revision application against said order—Legal bar existed against release of vehicle involved in the trafficking of the narcotics—Counsel for the applicant had requested that he was ready to deposit rupees seven lacs with the Nazir of the court as security for the release of vehicle in question-S.P.P. had conceded to the offer made by the applicant, but had contended that vehicle could not be disposed of by the applicant or on his behalf; and if the same was not produced in the court at the time of evidence, it would be taken against the appellant for tampering with the evidence–In the interest of justice as well as of the applicant and also to save further devaluation of the vehicle, it was imperative, to grant request of the applicant—Applicant or his attorney was directed to deposit cash of rupees seven lacs with the Nazir of the court within 30 days—Nazir of the court was further directed to deposit said amount in some Government Profitable Scheme and no profit would be encashed by either party till the decision of the case–It was further directed that the vehicle would not be disposed of and would be produced before the Trial Court at the time of evidence.

2010  PLD  361   KARACHI-HIGH-COURT-SINDH

ALI HASSAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(a)—Possession of narcotic—Bail, grant of—F.I.R. did not indicate as to whether 100 grams of charas was taken from one piece or from each of the three pieces allegedly recovered from the accused—Accused, in circumstance should be regarded as being in possession of only 100 grants, which would take the matter within the ambit of S.9(a) of Control of Narcotic Substances Act, 1997—F.I.R. itself revealed that the Police party had stopped and searched the passing vehicles, no serious attempt had been made to join private persons as Mashirs in the matter—Police Officials though in appropriate circumstances, could serve as Mashirs, however, it was to be expected that in the first instance a proper and serious attempt would be made in each case to associate private and independent persons with any search and detention matter, as that would ensure transparency and serve to establish confidence in the public about the conduct of the Police—No Proper explanation was forthcoming from the record as to how the local Police party had weighed the substance when the admitted position was °hat their investigation kit did not normally had such equipment—Accused was, admitted to bail, in circumstances.

2010  PCrLJ  1715   KARACHI-HIGH-COURT-SINDH

MUHAMMAD HANIF alias TANGO VS State

1. 497(2)—Penal Code (XLV of 1860), Ss. 324/353/186/34—Control of Narocotic Substances Act (XXV of 1997), Ss. 6/9(c)—Attempt of commit murder and possession of narcotics—Bail, grant of—Further inquiry—Accused was granted bail for the offence punishable under Ss. 6/9(c) of Control of Narcotic Substances Act, 1997—Case was of an infective firing—Where ineffective firing was alleged, matter would require further inquiry to determine the role actually played by accused in the case—Accused was admitted to bail, in circumstances.

2010  PCrLJ  1696   KARACHI-HIGH-COURT-SINDH

NIAZ VS State

5.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)–Possession of narcotics—-Bail, refusal of—Sample of 50 grams taken out from the charas weighing 1050 grams recovered from accused was sent to the Chemical Examiner whose report was positive—Prima facie case was covered by prohibitory clause of S.497, Cr.P.C.—Accused having failed to make out his case for grant of bail, his bail application was dismissed.

2010  PCrLJ  1692   KARACHI-HIGH-COURT-SINDH

SUHRAB SANDANO VS State

S.497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9—Bail, grant of—Further inquiry—1140 grams of charas was allegedly recovered from accused in the shape of pieces while only 100 grams were taken out of the entire recovered material for the purpose of Chemical Analysis—As to whether the sample was taken from each piece or. only from one of the pieces was not mentioned—No conclusive finding could be recorded that all the pieces were of contra-band narcotics—Proper and final finding, in circumstances, was yet to be recorded at the trial—No weapon was recovered from accused nor he caused any injury to anybody—Accused had already been granted bail in main case—Out of the entire contra-band allegedly recovered from accused, only 100 grams having been sealed separately for sending to Chemical Analyser, at the most, case against accused fell under S.9(b) of Control of Narcotic Substances Act, 1997, which carried punishment for 2 years—Even said sample taken out was not sent to the Chemical Analyser by the Investigating Officer—Case against accused being that of further inquiry, accused was admitted to bail.

2010  PCrLJ  1591   KARACHI-HIGH-COURT-SINDH

GUL AMIR VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(b)—Possessing of narcotics—Bail, grant of—Co-accused, against whom similar allegation was attributed, had been granted bail—Report of Chemical Analyzer would make little difference so as to place case on different footing from that of co-accused who was granted bail by the Trial Court—Recovery had been shown in the case under Ss.6/9(b) of Control of Narcotic Substances Act, 1997 in which 7 years punishment was provided—Case of accused, in circumstances not falling within the prohibitory clause of S.497, Cr.P.C., he was released on bail.

2010  PCrLJ  1560   KARACHI-HIGH-COURT-SINDH

ASMATULLAH VS State

1. 9(c)—Possessing narcotic—Appreciation of evidence—Sentence, reduction in—Mitigating circumstances—Police allegedly recovered nine plastic bags containing charas weighing nine maund and seven Kgs. from the truck in the shape of 358 slabs—Accused were apprehended from the truck in question, and Mashirnamas of arrest and recovery were prepared and one slab from each plastic bag was taken as sample and sealed separately—Weight of each slab was not mentioned in the F.I.R. in such a. situation accused could not be held responsible for the whole consignment of charas, even if the Chemical Examiner’s report was positive—Mitigating circumstance, in the present case, was available with defence for lesser punishment as prosecution had failed to bring on record any document to show that accused were involved in such-like cases previously—Chance should be given to accused persons to rehabilitate themselves and to pass a good life in future—Mitigating circumstances in the case had suggested that accused were entitled to be awarded lesser punishment—Sentence and conviction awarded to accused by the Trial Court, was altered from life imprisonment to R.I. for 14 years and sentence of fine was also altered from Rs.500,000 to Rs.100,000 each.

2010  PCrLJ  1438   KARACHI-HIGH-COURT-SINDH

GULZAR AHMED VS State

Ss.9(b)(c), 15 & 48—Appreciation of evidence—Neither the Investigating Officer had said anything about accused nor public prosecutor requested for trying him—Trial Court not only decided to try accused on its own initiative, when no evidence was available against him, but convicted and sentenced him to imprisonment for life, without an iota of evidence against him—Two witnesses examined by the prosecution, did not implicate accused at all—Conduct of the Trial Judge in convicting accused and sentencing him to life imprisonment without any evidence against him, could not be overlooked—Such conduct on the part of a senior judicial officer, would have the effect of undermining confidence and creating sense of insecurity among the general public—State Counsel had also conceded to allow appeal of accused—Appeal of accused, accordingly was allowed and he was honourably acquitted.

2010  PCrLJ  1306   KARACHI-HIGH-COURT-SINDH

MAQBOOL MASIH VS State

1. 9(c)—Possessing narcotics—Appreciation of evidence—Sentence, reduction in—Accused had placed at the mercy of the court and stated that he would not press his appeal and requested that maintaining his conviction, his sentence be reduced to one already undergone—Accused had contended that he was first offender and being the only bread earner of the family, deserved a lenient view—Jail roll showed that accused had served out more than 12 years including remission—State Counsel had no objection in case the conviction of accused was maintained and sentence was reduced to already undergone—Accused had served out substantive sentence of three years, eight months and eight days and had earned remission of eight years, two months and two days, which made the total served out period of more than twelve years—Seven bundles of charas weighing 1 Kg each was recovered from accused and each bundle contained number of rods, but only 10 grams were taken from each packet for chemical analysis—Accused being first offender had repented—Taking lenient view, while maintaining the conviction, sentence of accused was reduced to one already undergone and remitted the fine.

2010  PCrLJ  1087   KARACHI-HIGH-COURT-SINDH

ALI KHAN KALHORO VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possessing narcotics—Bail, grant of—“Charas” weighing 1100 grams in the shape of different pieces was allegedly recovered from the possession of accused, out of which 200 grams were separated for chemical analysis—F.I.R. did not disclose whether the sample was taken from each piece of narcotic substance or not—Even the shape, size and number of pieces of the alleged contraband were not disclosed in the F.I.R.—Under the law even at bail stage amount of narcotic taken as sample and not the entire recovered lot, would be taken into consideration—Punishment under section 9 of the Control of Narcotic Substances Act, 1997, having been provided on the basis of quantum of recovered narcotics, prosecution was obliged to prove the entire recovered lot as narcotics—Slight change in the quantity of substance could affect very seriously the life of human being—Allegation of prosecution in respect of recovery of a specific substance, therefore, was to be checked very strictly and to be proved beyond doubt—Case against accused at this stage apparently fell under section 9(b) of the Control of Narcotic Substances Act, 1997 and his guilt needed further inquiry, as the entire recovered substance was yet to be proved as narcotic at the trial—Accused was admitted to bail in circumstances.

2010  PCrLJ  940   KARACHI-HIGH-COURT-SINDH

Syed ZAHID HUSSAIN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9 & 21—Possessing narcotics—Ball, refusal of—Prima facie, conditions laid down in subsection (1) of S.21 of Control of Narcotic Substances Act, 1997 were clearly made out—In the present case the secret information indicated that there was an imminent movement of narcotic substances and prima facie, in such circumstances the complainant could and did form an opinion that imminent action was necessary; and that any delay could enable the accused to either escape or otherwise deal with the narcotic substances in such a manner as would take them beyond the purview of the law enforcement agencies—Since there was no allegation of any enmity between the Anti Narcotic Force party which conducted the raid and searched the premises where accused was found with a large quantity of narcotics, there did not appear prima facie to be any basis for the claim put forward by accused that the drugs were foisted on accused and his brother—Prosecution had succeeded in making out a reasonable case which prima facie connected accused with the possession of the huge quantity of narcotic substances, which had constituted an offence under S.6 of Control of Narcotic Substances Act, 1997—Accused having failed to make out a case for grant of bail, his bail application was dismissed.

2010  PCrLJ  825   KARACHI-HIGH-COURT-SINDH

Haji INAYAT VS State

Ss. 6, 8 & 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—In the present case what could be said at the most against accused persons was that they were transporting charas in the truck—Nothing had been proved that would show that accused were trafficking the charas i.e. engaged in the trade or the buying or selling of charas, which would bring the matter within the meaning of S.8 of Control of Narcotic Substances Act, 1997—When something was in or on board a moving conveyance (such as a truck), it was of course being transported from one place to another which was not enough by itself, question under S.6 of Control of Narcotic Substances Act, 1997 was whether the prohibited drug/substance was being transported by the accused—For purpose of S.6 of Control of Narcotic Substances Act, 1997 and in the specific context of conveyance, accused could be said to have possession of prohibited drugs which were in or on board the conveyance—Accused must have knowledge of thing or substance which he was supposed to be in possession of—If such possession with knowledge was established then it could not be necessary also to establish that accused specifically had knowledge that the thing or substance that he possessed was a prohibited drug—Accused persons were not the owners of truck in question, but they were simply its driver and his helper—Charas itself was not lying in the truck in an open or easily accessible place, but was hidden in a secret compartment inside the body of the truck and that secret compartment was not pointed out or revealed by either of accused persons; it could not be said to have been established beyond reasonable doubt that accused knew or could be regarded as knowing that the charas was in or on board of the truck—Such facts could reasonably raise a suspicion and suspicion was not proof—Even the conclusion that the truck was in “exclusive possession” of accused persons was not accurate—No doubt accused were the only persons in the truck, when it was intercepted by the Excise Officer, but that did not automatically establish that the truck was in their exclusive possession, when the charas was placed in the secret compartment—Reasonable doubt existed as to whether accused could be regarded as having possession of the charas within the meaning of S.6 of the Control of Narcotic Substances Act, 1997 and whether accused could be regarded as transporting the charas within the meaning of said section—Accused, in circumstances, stood acquitted, impugned judgment was set aside and conviction and sentence of accused were quashed.

2010  PCrLJ  800   KARACHI-HIGH-COURT-SINDH

GULZAR AHMED VS State

Ss. 9(c) & 14—Criminal Procedure Code (V of 1898), Ss.561-A & 265-K—Possessing narcotics—Application invoking inherent jurisdiction of High Court—Conversion of application into revision petition—Accused persons who were nominated in the F.I.R., filed application under S.265-K, Cr. P. C. before court of Special Judge-Said application having been dismissed and accused being aggrieved by the order of dismissal they moved application under S.561-A, Cr.P.C.—Said application was treated as revision petition and was decided as such—Statement of co-accused given during investigation had not been brought to the notice of the High Court Bench which passed the impugned order and as far as that particular aspect of statement of co-accused was concerned the order of the Bench was an order sub silentio—Held, at such stage neither the Trial Court nor the High Court could say that statement of co-accused should be totally ruled out of consideration—Revision application was dismissed.

2010  PCrLJ  764   KARACHI-HIGH-COURT-SINDH

MUBARAK VS State

1. 9(c)—Possession of narcotic—Appreciation of evidence—Sentence, reduction in—Report of the Chemical Examiner, showed that two sealed packets were received by him—Name of accused was mentioned on one packet while name of co-accused on the other—Report of Chemical Examiner, showed that one packet was found to contain black brown rods, while the other contained one black brown slab—Prosecution’s own case was that no slabs were found in the bag recovered from co-accused—Not only it was not established that substance recovered from co-accused was at all sent for Chemical Examiner, even the material that was sent, had contradicted the testimony of the excise officers—Material contradiction was found in the contents of the F.I.R. and the report of Chemical Examiner—Reasonable doubt existed as to whether material allegedly recovered from co-accused was at all chemically analyzed in order to determine its composition and whether it came within the scope of Control of Narcotic Substances Act, 1997—Chemical Examiner sent his report to Excise Inspector on 9-5-2006, while said report was signed by the Chemical Examiner on 25-5-2006, after 16 days from the date of dispatch of the same—Such would indicate that when the report was dispatched, it was unsigned and was either signed in the office of Excise Department or in the court—Prosecution, in circumstances had not been able to establish its case against co-accused beyond reasonable doubt—Appeal’ of co-accused was accepted and conviction and sentence awarded to him by the Trial Court under impugned judgment, were set aside and he was acquitted—Accused was only responsible for the quantity which was separated for sample for Chemical Examiner and report of which was positive—Quantity of Charas separated for sample was only 1 KG for which the maximum punishment under S.9(b) of the Control of Narcotic Substances Act, 1997 was 7 years—Appeal of accused was dismissed, however his sentence was reduced from life imprisonment to seven years and his fine was also reduced from Rs.50,000 to Rs.15, 000.

2010  PCrLJ  611   KARACHI-HIGH-COURT-SINDH

MIR MUHAMMAD VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(a)—Possessing narcotic—Bail, grant of—Case was punishable with imprisonment for two years or with fine or both—Sample had not been taken from each Purrie of recovered heroin, but only 10 Purries had been taken out for chemical examination—There would be no proof regarding remaining heroin as to whether it was heroin or not—Accused could tentatively be saddled with liability of possessing 12 grams heroin in case of positive chemical examination report—No useful purpose would be served by keeping accused behind the bars—Accused was admitted to bail, in circumstances.

2010  PCrLJ  572   KARACHI-HIGH-COURT-SINDH

MUHAMMAD HASSAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic—Bail, grant of—Benefit of doubt—“Charas” Weighing 1100 grams was allegedly recovered from possession of accused—Prosecution witnesses of arrest of accused and recovery of “Charas” from him had not supported the prosecution case, categorically stating that the accused was innocent and had been falsely implicated in the case by the complainant S.H.O—Complainant due to registration of this false ease had been reverted from S.I. P. to A. S-I. P. and suspended by RPO of the region—S.P. (Investigation) had also recommended for cancellation of the case, but Magistrate did not agree and on his direction challan had been submitted in the Court—Benefit of every doubt had to go to the accused even at bail stage—Further inquiry was warranted into the guilt of accused and he was admitted to bail in circumstances.

2010  PCrLJ  381   KARACHI-HIGH-COURT-SINDH

SARWAR KHAN VS State

Ss. 9(c) & 25—Appreciation of evidence—Complainant, who was Excise Inspector, had deposed same fact as contained in the F.I.R.—Complainant deposed about the arrest of accused persons and recovery of Charas weighing 280 Kgs. from the secret cavity of the truck in question—In cross-examination nowhere arrest of the accused persons and recovery of huge quantity of Charas had been questioned or disproved, the testimony of said witness remained unshaken—Other prosecution witness, had also fully deposed on the same pattern as had been deposed by the complainant—No slight difference was available in cross-examination of both said prosecution witnesses; their evidence was in consonance with each other on material aspects of the case regarding arrest of accused persons and recovery of Charas—No material had been fished by the defence side to extend its benefit to accused persons—Section 25 of Control of Narcotic Substances Act, 1997, spoke about the evidence of the Police Officials which could be treated as good as the evidence of any independent witness could be–Evidence of Police Officials could not be discarded merely for the reasons that they were Police Officials—Applicability of S.103, Cr.P.C. had also been ousted from the proceedings of Control of Narcotic Substances Act, 1997—Contention of accused that all the Mashirs being Police Officials their testimony could not be believed, was repelled, in circumstances—If the narcotic substance had been secured in bulk quantity from the possession of accused, it ,was not obligatory on the part of the prosecution to send the whole quantity of narcotics to the Chemical Examiner; and the sample from each huge bulk of narcotic substance could be sent to the Chemical Examiner and positive report of the Chemical Examiner could be treated affirmatively against the whole quantity of Charas—Recovery ,of 280 Kgs. Charas had been established by the prosecution from the possession of both accused persons and said recovery had not been disproved by accused persons by adducing any independent evidence—Trial Court, in circumstances, had rightly convicted and sentenced’ accused persons—In absence of any illegality or infirmity in the judgment passed by the Trial Court, appeals against said judgment, were dismissed, in circumstances.

2010  PCrLJ  360   KARACHI-HIGH-COURT-SINDH

FAZAL VS State

1. 9(c)—Possession, import or export and trafficking of narcotic drugs—Appreciation of evidence—Glaring contradiction existed in the deposition of the prosecution witnesses in respect of place of arrest of accused persons, preparation of Mashirnama of arrest and recovery as well as quantity of contraband material which was sent to the Chemical Examiner—Only evidence against one of accused persons was mere statement of co-accused, which was inadmissible piece of evidence–Inconsistent versions of complainant and prosecution witnesses with regard to preparation of Mashirnama of arrest and recovery were on record—No reliance, in circumstances could be placed on very important document i.e. Mashirnama of arrest and recovery as the entire foundation of the prosecution case was based upon such Mashirnama—Mashirnama of arrest and recovery contained the names of Sub-Inspector and Assistant sub-Inspector as Mashirs, no sanctity could be attached to such Mashirnama of arrest and recovery and same could not be relied upon—All the three prosecution witnesses had given different weight and their versions did not match with each other in respect of quantity of contraband material, which was allegedly sealed separately for Chemical Examination—Very preparation of parcels for sending to the Chemical Examiner, therefore, seemed to be an afterthought and did not inspire confidence, same could not be relied upon—Samples remained lying with Police Officer for about 11 days possibility of manipulation in the sample during that period, could not be ruled out—Report of Chemical Examiner could not be relied upon as good piece of evidence against accused persons—Prosecution did not produce/examine the Mashirs of recovery—Mere production of Mashirnama, was not proof of recovery of narcotics—Genuineness or authenticity of the contents of a document needed to be proved by examining the witnesses named in such document, besides its author—Mere exhibition of a document through Investigating Officer, without proving the contents by examining the witnesses and author, had no evidentiary value—Prosecution could not prove recovery of opium and Charas from the custody of accused and the Trial Court failed to notice the major contradictions—Opium and Charas appeared to have not been recovered from the possession of accused, but same was foisted upon them by the complainant—Appeal was allowed in circumstances.

2010  PCrLJ  292   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AJMAL KHAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 8, 9(c) & 25—Possession of narcotic—Bail, refusal of—All the prosecution witnesses had clearly stated during the investigation that accused was cleaner of the vehicle in which contraband narcotic was transported—Question as to associating the Police witnesses and non-associating the private witnesses, section 25 of Control of Narcotic Substances Act, 1997, had imposed bar that S.103, Cr.P.C. was not applicable in narcotic cases—Record had connected accused with the commission of the alleged offence—Counsel of accused having failed to make out a case for grant of bail, his bail application was dismissed.

2010  PCrLJ  272   KARACHI-HIGH-COURT-SINDH

ARZ MUHAMMAD VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotics—Bail, refusal of—Accused and his co-accused were arrested at the spot at day time and a huge quantity of Charas i.e. 200 Kgs. had been recovered from the Suzuki Pick-up which was in their possession at the time of recovery—Due to fear of enmity people do hesitate to be the witness in cases of such nature, that was why no private witness was associated at the time of recovery—Counsel for accused had failed to prove mala fide of the Excise Police—Witnesses had fully supported the version of complainant—200 Kgs. of Charas had been recovered which could not be foisted upon a person—Driver of the Pick-up had also implicated accused—Punishment provided for the offence fell under the prohibitory clause of S.497, Cr.P.C. and embargo contained in subsection (1) of S.51 of Control of Narcotic Substances Act, 1997, was fully attracted’ to the case, as such offence was against the society at large—Bail was refused in circumstances.

2010  PCrLJ  164   KARACHI-HIGH-COURT-SINDH

JANTAN BIBI VS State

1. 412—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(b)—Appeal against conviction recorded by Special Tribunal on admission of guilt by accused—Maintainability—Provisions of S.412, Cr. P. C. had not placed an absolute embargo on filing of such appeal–Impugned judgment had been passed by a Special Tribunal created under a special statute, but not by a High Court, Court of Session or Magistrate of First Class—Such appeal was maintainable.

2010  PCrLJ  164   KARACHI-HIGH-COURT-SINDH

JANTAN BIBI VS State

Ss. 6 & 9(b)—Criminal Procedure Code (V of 1898), S.412—Appreciation of evidence—89 capsules containing heroin powder weighing 145 grams gross and 134 grains net recovered from stomach of accused—Conviction of accused and awarding of sentence of one year’s rigorous imprisonment—Appeal by mother of accused seeking reduction of such sentence or his release on parole—Validity—Trial Court had already taken a very lenient view by awarding accused such lesser sentence—Accused was involved in most heinous crime of trafficking of heroin powder, which could be treated as crime against humanity—Accused did not deserve to be released on parole—Accused had immediately accepted his guilt and such was his first offence—Accused must suffer some retribution from his such act—High Court dismissed appeal in circumstances.

2010  PCrLJ  86   KARACHI-HIGH-COURT-SINDH

ATTAULLAH VS State

Ss. 6/9(c)—Appreciation of evidence—Alleged lacuna in the evidence of Investigating Officer, could not be a material to reflect doubt on the case of prosecution—Investigating Officer had supported the prosecution case, while other witnesses had deposed on factual position, which had not been shaken in the cross-examination—No enmity was brought on record—Recovery of the Charas and its positive test was available on record—Charas had been recovered from the truck in question—Plea that the link of accused with the truck in the capacity as owner or the driver, had not been established, was not a legal requirement; as the case was to be decided on the basis of facts which had come on record, which had been done through implicating evidence.

2010  MLD  1908   KARACHI-HIGH-COURT-SINDH

ZIARAT KHAN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c) & 51—Possession of narcotics—Bail, grant of—Further inquiry—Bail could not be granted in cases which fell within the exception to S.497, Cr. P. C. or S.51 of Control of Narcotic Substances Act, 1997, however, High Court while hearing the bail application, had to determine without going into deeper appreciation of evidence, whether a prima facie case had been made out for establishing that accused had been implicated in the case on the basis of mala fide or enmity and whether some prima facie evidence existed which could require further inquiry—High Court had the jurisdiction and authority to grant bail in the cases, where accused had made out a case of mala fide—Whenever accused was able to show by cogent reason, the possibility of his false involvement in the case it could be considered a good case for grant of bail—No firearm was recovered by the Police from accused who allegedly was taking heavy load of heroin and he had not tried to rush away when stopped by the Police and stopped at their signal—Prima facie, case subject to further inquiry, had been made out—Accused could have been implicated on the basis of his previous attitude and altercation with Police Authority—Accused was admitted to bail, in circumstances.

2010  MLD  1754   KARACHI-HIGH-COURT-SINDH

Mst. SAIMA VS State

S.9(c)—Trafficking of narcotics—Appreciation of evidence—Recovery witnesses were unanimous on material points of arrest of accused, recovery of “charas” and of the vehicle used in the commission of offence—Prosecution evidence had no important contradictions—Witnesses had no enmity with the accused to connect them with a false case by foisting a huge quantity of 90 kilograms of “charas” on them—Narcotic dealers those days used to accompany with them ladies and children to avoid suspicion of police and other State functionaries and search of their vehicles—Dispatch of “Chants” to Chemical Examiner was not delayed and his report was in positive—Impugned judgment was well-reasoned and did not suffer from any illegality or irregularity—Conviction and sentence of accused were maintained in circumstances.

2010  MLD  1075   KARACHI-HIGH-COURT-SINDH

MAHMOOD NAWAZ alias MITHOO VS State

S.497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Possession of narcotic—Bail, grant of—Further inquiry—1200 grams of charas was allegedly recovered from accused in the shape of pieces, while only 200 grams were taken out of the entire recovered material for the purpose of chemical analysis, but was not mentioned that as to whether the sample was taken from each piece or only from one of the pieces—No conclusive finding, in circumstances, could be recorded that all the pieces were of contraband narcotics—Proper and final finding, was yet to be recorded at the trial—Accused had already been granted bail in main case—Since out of the entire contraband allegedly recovered from accused only 200 grams were sealed separately for sending it to chemical analyzer, at the most case against accused fell under S.9(b) of Control of Narcotic Substances Act, 1997, which carried punishment for 2 years—Case of accused falling within purview of subsection (2) of S.497, Cr.P.C., he was granted bail, in circumstances.

2010  MLD  1068   KARACHI-HIGH-COURT-SINDH

MUHAMMAD SALEEM VS State

S.9(c)—Appreciation of evidence—Accused had contended that Police Inspector had falsely implicated him because he was serving as cook of said Inspector who suspected him to be involved in the murder of his son—No substance was found in the plea of accused as said Police Inspector had categorically denied the suggestion that accused was his cook and he had also stated that he did not know accused previously—Even otherwise son of said Police Inspector was murdered in 1999 and case against accused pertained to 2002—Plea of total denial and lack of knowledge about the presence of Charas in the secret cavity of the vehicle driven by accused being self-contradictory, could not be given any weight—Accused did not give any explanation for the Charas recovered from the secret cavity of the vehicle driven by him—Finding of the Trial Court holding accused guilty of transporting the Charas was unexceptionable in circumstances—Not necessary to send whole property to the Chemical Examiner when samples were taken from each bundle—Accused never stated that some other substance was recovered from him—Neither the manner of transporting Charas was necessary to be mentioned in the charge nor accused was misled in his defence nor failure of justice had in fact been occasioned—Contention of accused that he had no knowledge about the Charas having been concealed in the secret cavity in the floor of Pick-up was repelled—Accused was driving the vehicle knowing that the Charas had been kept in the secret cavity, but his case was of total denial—When the prosecution had successfully proved that accused was driving the Pick-up containing 342 kilograms of Charas in its secret cavity, his plea of total denial was found false—Accused could not absolve himself by pleading ignorance about the Charas having been kept in the secret cavity of the vehicle which was in his charge—Accused, in circumstances, was rightly convicted and sentenced—Appeal of accused was dismissed.

2010  MLD  1065   KARACHI-HIGH-COURT-SINDH

IRSHAD JATOI VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6/9—Possession of narcotic—Bail, refusal of—Number of pieces of Charas weighing 100 grams as samples for chemical analysis were sent to the Chemical Examiner whose report regarding such samples was positive–Accused had not placed on record any material to show enmity of the complainant with accused—Prima facie there was no question of false implication of accused in the crime and case was covered by prohibitory clause of S.497, Cr.P.C.—Accused having failed to make out a case for concession of bail, his bail application was dismissed—Trial Court, however, was directed to conclude the trial within three months by procuring the attendance of prosecution witnesses, who were Police Officials, even through coercive process.

2010  MLD  839   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ARSHAD VS State

1. 9(b)—Possessing narcotics—Appreciation of evidence—Accused during examination under S.342, Cr.P.C. had accepted the charge and pleaded guilty—No evidence was available in the case except the deposition of the Police Officer who was examined as mashir by the prosecution—Other witnesses could not be produced despite coercive method adopted by the court which resulted in closing the side of the prosecution—Co-accused was acquitted by the Trial Court, but on the same evidence and for the same reasons, Trial Court convicted accused merely on the basis of his plea of guilty, which was turned down and was not acted upon—Held, if a case on merits was not made out, mere confession, would not be made basis for conviction, as the confession alone of an accused would carry no evidentiary value in law; and the court was duty bound to ensure that a plea of ‘guilty’ or confession was proper, voluntary, without any temptation, promise or coercion—Confession must have nexus with the evidence prima facie establishing such guilt of accused—In the present case, the trial had been concluded and finding was of the court that no evidence had been led to establish the charge against both accused persons—Result should not have been different for accused—In case of plea of guilt and conviction recorded in the impugned judgment, the plea of guilt should have been dealt with by the Trial Court at the relevant time and not after conducting the whole case on merits—If the Trial Court had found that there was no evidence against co-accused, how can the court could hold otherwise for the accused on same evidence and convicting the accused on the sole ground of plea of guilty—Impugned judgment was set aside being unsustainable in law, in circumstances.

2010  MLD  824   KARACHI-HIGH-COURT-SINDH

NAWAB JAN alias NAWAZ VS State

1. 497(2)—Penal Code (XLV of 1860), Ss.324/353/34—West Pakistan Arms Ordinance (XX of 1965), S.13(d)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Attempt to commit qatl-e-amd, assault, recovery of arms and possession of narcotics—Bail, grant of—Further inquiry—First Investigating Officer visited the site under a memo. before official Mushirs, which had shown no recovery of crime empties and incriminating articles—Major part of investigation had already been acted upon before the F.LRs. were registered and nothing was left on the spot to be secured as incriminating, evidence by the Investigating Officer—Both the memo. of recovery and that of place of vardat had been witnessed by the Police witnesses and there was no mention of any genuine attempt made to procure services of public witness—There could be cases when public witnesses were reluctant to join or were not available, but the duty of making a genuine attempt to join public witness, could not be avoided—Prosecution could not absolve itself of its duty to prove such attempt in such like cases—In the present case, one of accused persons had been challaned for narcotic substances, while other though was occupant of car in question, had not been charge-sheeted—Both the occupants of the car, in circumstances, could prima facie jointly be made liable to the said narcotic substances along with the owner of the car, particularly where co-accused who was the driver of car who had an unlicensed .30 bore pistol, had fired at Police party—Such aspect had reasonably connected said co-accused with the crime of narcotic substances together with the other—Samples of the secured charas were received after 16 days’ delay, which too needed a plausible explanation to ensure that the said sample parcels remained untampered during the said intervening period of time—Secured arms and ammunition according to Ballistic Expert’s report was also obtained with such delay—Such an inordinate delay had made said report cloudy—Memo of recovery did not bear signatures of witnesses/mashirs—No doubt, a prima facie presumption of fairness was attached with the public officials, entrusted with the task of criminal justice system respectively, as to watch and ward and prevention of crime, investigation, etc., but such presumption would not absolve them of the duty to ensure prima facie fairness of the reported crime—Case having been fallen within the purview of a case of further inquiry, accused was admitted to bail, in circumstances.

2010  MLD  71   KARACHI-HIGH-COURT-SINDH

ABDUL KAREEM VS State

S.9(c)—Appreciation of evidence—Sentence, reduction in—-After alleged recovery of 60 kilograms charas, two kilograms of charas were separated and sealed as samples, while remaining substance was sealed separately–Chemical Examiner’s report revealed that only two slabs were sent while remaining 58 slabs remained unexamined—Prosecution witnesses had fully implicated accused and the case of the prosecution stood proved beyond any shadow of doubt to the extent of only 2 Kilograms duly certified by the Chemical Examiner—Accused could not be convicted for the rest of 58 slabs—Conviction of accused and sentence for 10 years with fine would be served; however counsel for accused had stated that accused would be satisfied if conviction and sentence awarded to accused by the Trial Court would be modified and sentence was reasonably reduced—State Counsel fairly conceded to that proposition—Looking to the mitigating circumstances, on humanitarian grounds that accused having small children belonging to the Province of Balochistan, conviction and sentence awarded to accused by the Special Court, required modification—Sentence and conviction of accused was reduced to five years, accordingly.

2010  MLD  8   KARACHI-HIGH-COURT-SINDH

YOUNIS alias JHOONO VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of—Accused was apprehended with 10 pieces of charas total 1000 grams, whereas only ode piece of 100 grams was sent for chemical examination—Was yet to be seen as to whether remaining 9 pieces of charas weighing 900 grams was charas or not—No doubt 1000 grams of charas would bring the case of accused within the definition of S.9(b) of Control of Narcotic Substances Act, 1997, but it was simply a fraction of weight above the limits keeping the offence within the ambit of S.9(a) of the Act which was punishable with 2 years imprisonment and fine—When the offence did not fall within prohibition contained under S.497, Cr.P.C., then grant of bail was a rule and refusal was an exception—No exceptional circumstances disentitling accused for grant of bail, having been pointed out, bail was granted to accused.

2010  PTD  1104   Customs, Federal Excise and Sales Tax Appellate Tribunal

VS

R.103(2)—Customs Agent (Licensing) Rule, 1971, Rr.19 & 21–Customs Act (IV of 1969), S.2(s), 156(1)(98)(89) & 178—Control of . Narcotic Substances Act (XXV of 1997), S.6, 7, 8 & 9—Custom Agent Licensing—Action in case of violation—Revocation of license on the ground of inefficiency—Licence of the appellant was suspended on 7-8-1998 by the authority, which had been. appealed against and it was on 9-8-2006, after the period of more than eight (8) years, the case was decided by the Licensing Authority—Department pleaded that there was no time of limitation for adjudication of such cases—Validity—Expeditious disposal of the cases was the requirement of the time, as well as was the mandate of every civilized law, because it determines the rights of the parties and save them from unnecessary inconvenience—Where no limitation for conclusion of any proceedings was fixed, such proceedings must be concluded, within a reasonable time—Where the law required issuance of notice, within the stipulated period, the Licensing Authority was required to complete the proceedings within a reasonable time—Where law required issuance of notice as a necessary corollary it excepted completion of proceedings on such notice, within the relevant time period—Merely, issuing a notice, the Licensing Authority was not absolved of his duty to complete the proceedings, within’ a reasonable time period—Issuance of notice did not give an unending period of time to complete the proceedings—Purpose of issuance of notice within certain time frame would be defeated, if the Licensing Authority, after having acted and issued a notice was allowed to sleep over the matter, or drag same along for almost eight years—Order passed after time period of almost eight years, could not be said to be in accordance with law—All the superstructure built subsequently, would suffer from the same infirmity—Such order would be liable to be set at naught on the ground of their having been passed against the express provisions of law—When the High Court exonerated the appellant from the charges levelled against him, the Licensing Authority should have clearly acted in good faith as no charge of misdeclaration/production of false documents, collusion and fraud had been proved against the appellant and revocation of his licence merely; on the grounds of his inefficiency could be a very harsh decision—Order of Licensing Authority was set aside by the Appellate Tribunal and case was remanded to the Licensing Authority for decision afresh by taking into consideration the issues raised by the appellant and then pass a speaking and judicious order by providing an ample opportunity of hearing to the appellant.

2009  SCMR  1403   SUPREME-COURT

FAIZ MUHAMMAD VS State

1. 9(c)—West Pakistan Arms Ordinance (XX of 1965), S.13-E—Constitution of Pakistan (1973), Art.185(e)—Allegation of smuggling/ transportation of huge quantity of narcotics, arms and ammunitions—High Court while dismissing the appeal filed by the petitioners dealt with the contentions of counsel comprehensively, dilating upon each and every aspect of the case—Evidence which had been brought on record had rightly been appreciated by the Trial Court, determination whereof had been upheld by the High Court, assigning valid and cogent reasons—No illegality, irregularity or mis-appreciation of evidence could be pointed out persuading to grant leave to appeal—High Court had reappraised the entire evidence available on record by making threadbare examination of each piece of evidence supported with reasons based on record—No piece of evidence incriminating in nature produced by the prosecution appeared to have been misread, omitted from consideration or not appreciated in its true perspective—Evidence of the prosecution witnesses about the recovery of Charas weighing 126 Kgs. and taking of sample from each of the” rod and slab could not be disputed by the defence and report of Chemical Examiner also supported the case of the prosecution—Petitioners were using uncommon route for transportation of Charas, arms and ammunitions by concealing same in secret cavities of the vehicle, which reflected their knowledge—Driver having the charge of vehicle for long journey was supposed to have knowledge with regard to contents and articles being transported in it—Findings and judgments of Trial Court as well as High Court neither reflected any mis-appreciation or non-reading of evidence nor suffered from any legal infirmity so as to make room for further consideration—Counsel though argued at length but could not point out any misreading or non-appraisal of evidence—Petition for leave to appeal was dismissed.

2009  SCMR  1220   SUPREME-COURT

MUHAMMAD TARIQ VS State

1. 9(c)—Appreciation of evidence—Sentence, reduction in—Sentence of death of accused only was sought to be converted into imprisonment for life—Different punishments of death, imprisonment for life and 14 years’ R.I. enumerated in S.9(c) of Control of Narcotic Substances Act, 1997, had given a discretion to the Court in the matter of imposition of sentence on the accused, considering the facts and circumstances of each case—Some accused might be involved in the commission of the offence of S.9(c) of the said Act, but their role, part, act or omission, character or conduct, might call for lesser punishment than of death—Case of first offender who was not a drug baron could fall in such domain—Accused having no antecedents of any criminal case and he being not an incorrigible, desperate or hardened criminal, might deserve punishment lesser than death, in the interest of justice—Extreme penalty of death in such cases could be withheld in order to grant a chance to accused to mend his ways in his future life—In the present case, accused was not previously involved in any case of such nature and he was a first offender—Extreme penalty of death was too harsh to be imposed upon the accused and his death sentence was converted into imprisonment for life in circumstances.

2009  SCMR  1084   SUPREME-COURT

Syed ALTAF SHAH VS State

Art. 188—Supreme Court Rules, 1980, O.XXVI—Control of Narcotic Substances Act (XXVII of 1997), S.9(c)—Review of Supreme Court judgment—Scope.

2009  SCMR  954   SUPREME-COURT

MUHAMMAD ULLAH VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Constitution of Pakistan (1973), Art.185(3)—Bail, grant of–Contrabands were not recovered directly from the possession of accused, rather the same were recovered from the cabin made on the root of the Bus—Question whether said cabin was in the exclusive use of the driver or for the passengers being a factual controversy, could not be resolved in a bail petition—Case of accused, thus, was of further inquiry–Accused was admitted to hail accordingly.

2009  SCMR  909   SUPREME-COURT

IFEANYI SAMSON VS State

1. 9(b)—Constitution of Pakistan (1973), Art.185(3)—Petition for leave to appeal had no substance on merits—Accused was a foreigner and with a view to advance cause of justice his sentence of four years’ R.I. was reduced to two years’ R.I. so that he could be deported to his native country as soon as possible—Fine was directed to be paid in terms of the judgment of High Court—Petition was disposed of accordingly.

2009  SCMR  819   SUPREME-COURT

Mst. GULSHAN BIBI VS State

1. 9(c)—-Constitution of Pakistan (1973), Art.185(3)—-Huge quantity of “Charas” weighing 15 kilograms had been recovered from the possession of accused, which had been satisfactorily proved-Mere fact that one of the witnesses to the recovery memo. was not produced, was not fatal to prosecution case—Plea of acting as “carrier” had not been taken at the trial, nor spelt out from the material on record—Plea of substitution was also not substantiated—Leave to appeal was refused to accused in circumstances.

2009  SCMR  579   SUPREME-COURT

QAISARULLAH VS State

1. 9(c)—Appraisal of evidence—Benefit of doubt—Car from which “Charas” was recovered was being driven by co-accused and not by the accused—Prosecution had failed to connect accused with the ownership of the car as well as to prove through convincing evidence that accused had exclusive knowledge of the concealment of narcotics in the car—From the very first day the defence plea of accused was that he was an employee of Pakistan Air Force and he was given lift by the driver of the car, which was admitted and found correct by the Investigating Officer—No link between the accused and driver of the car had been established on the record—First version of the accused recorded immediately after his apprehension was to be given weight, which was supported by the circumstances of the case—Accused was acquitted on benefit of doubt in circumstances.

2009  SCMR  579   SUPREME-COURT

QAISARULLAH VS State

Ss. 9(c) & 9(a)—Appreciation of evidence—Benefit of doubt—Principle—Benefit of each doubt is to be given to accused.

2009  SCMR  579   SUPREME-COURT

QAISARULLAH VS State

Ss. 9(c) & 9(a)—Appraisal of evidence—Recovery of—Benefit of doubt—Sentence, reduction in—“Charas” from the car being driven by the accused was proved by the consistent prosecution evidence—Accused along with his co-accused had been injured after the car had met with an accident and their presence had been established—None of the prosecution witnesses had any personal grudge or enmity against the accused so as to involve him in a false case—F.I.R. had shown that 170 packets of “Charas” were recovered from the car—Each packet weighed one Kg. and some quantity of “Charas” was separated from each packet for the purpose of chemical examination—Even if one gram of “Charas” had been taken from each packet, then the total would have been 170 grams and not 10 grams sent to Chemical Examiner—Separation of 1/17 grams even by micro tools from a packet containing one Kg. of “Charas”, was virtually impossible—Possibility of having separated 10 grams of “Charas” from a single packet, therefore, could not be ruled out—Benefit of each doubt had to be given to the accused—Conviction of accused under S.9(c) of the Control of Narcotic Substances Act, 1997, was consequently altered to S.9(a) thereof and his sentence was reduced to the period already served out by him in circumstances.

2009  SCMR  569   SUPREME-COURT

BADAR MUNIR VS State

Ss. 6, 7, 8 & 9—Criminal Procedure Code (V of 1898), Ss.423 & 439—Reappraisal of evidence—Converting acquittal into conviction—Revisional jurisdiction—Condonation of delay—Division Bench of High Court under suo motu action and in exercise of revisional jurisdiction, converted acquittal of accused into conviction—Validity—Though High Court had been conferred with power of appellate Court under S.423 Cr.P.C. while exercising powers of revision under S.439, Cr.P.C. but S.423(1), Cr.P.C. did not award power to revisional court to convict any acquitted person by taking suo motu action—Division Bench of High Court was not empowered to exercise suo motu power of revision in such manner so as to convert judgment of acquittal into a judgment of conviction—Although the appeal was barred by 31 days, yet in the interest of justice, Supreme Court condoned the delay, set aside conviction passed by High Court and acquitted the accused—Appeal was allowed.

2009  SCMR  544   SUPREME-COURT

ABDUL MANAN  VS State

1. 9—Constitution of Pakistan (1973), Art.185(3)—Leave to appeal was granted by Supreme Court to reappraise the entire evidence for safe administration of criminal justice where it was contended that petitioners in the present case, who were driver and cleaner, were held guilty for the offence whereas the alleged narcotics were recovered from the last seat of the vehicle from which 35 passengers, besides the petitioners, had alighted.

2009  SCMR  536   SUPREME-COURT

MUHAMMAD ARIF BALOCH VS State

1. 9(c)—Appraisal of evidence—Prosecution witnesses were interested witnesses and their statements suffered from material improvements, which could not be relied upon—Specific plea taken by accused in his statement recorded under S.342, Cr.P.C. regarding his false implication in the case, had not been taken into account by the court below—All the co-accused in the case had been acquitted by Trial Court under S.265-K, Cr.P.C. and thus, the accused was also entitled to the same benefit on the principle of consistency—Prosecution had failed to prove its case against the accused beyond any reasonable doubt—Accused was acquitted accordingly.

2009  SCMR  425   SUPREME-COURT

Sardar AMJAD ALI KHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Medical ground—Delay in conclusion of trial–Accused was clearing agent and was involved in the case where 6000 kilograms of Charas was recovered from his co-accused—Accused was in custody for more than four years and trial had not concluded–Accused was suffering from chronic liver disease (HCV +VE) which could not be treated while keeping him in custody—Supreme Court converted petition for leave to appeal into appeal and allowed the same—Bail was granted.

2009  SCMR  333   SUPREME-COURT

RASOOL BUX VS State

1. 9—Constitution of Pakistan (1973), Art. 185(3)—Counsel for the petitioner had assailed the judgments of the Trial Court as well as High Court stating that both said courts had completely overlooked grave and serious infirmities and contradictions in the evidence of the witnesses; non-examination of important witnesses; contradictory evidence relating to the apprehension of the petitioner as given by prosecution witness in his statement under S.161, Cr.P.C. and in his evidence in court; and discrepancies in the weight of two packets containing Charas—Further contentions of the petitioner’s counsel was that the Trial Court, during the proceedings found one of the prosecution witnesses not to have observed the sanctity and propriety of the court proceedings as he made gestures and signs suggesting answers to another prosecution witness which fact was noted by the Trial Court in the judgment; it was submitted that such conduct of prosecution witnesses had adversely reflected their reliability and was sufficient to discard their testimony—Validity—Contentions advanced by the counsel required consideration for which purpose, fresh examination and appraisal of evidence was to be made—Leave to appeal was granted by Supreme Court in circumstances.

2009  SCMR  306   SUPREME-COURT

ABDUL RASHEED VS State

1. 9(b)—Appraisal of evidence—Prosecution witnesses had demonstrated complete unanimity on all aspects of the case—No contradiction could be pointed out in the evidence, so as to create a dent in the prosecution case—No enmity, ill-will or grudge had been alleged against the prosecution witnesses to falsely implicate the accused—Large quantity of one Kg. heroin could not be thrust upon the accused in absence of any tangible and concrete enmity, which had not been proved by the defence—No misreading or non-reading of evidence resulting into miscarriage of justice was pointed out in the case—Provisions of S.103, Cr.P.C. were not applicable by virtue of S.25 of the Control of Narcotic Substances Act, 1997—Prosecution witnesses being members of the raiding party were natural witnesses and their testimony could not be discarded merely on the ground of their being employees of police force—Accused had admitted the raid and heroin had been recovered from underneath the bed of a room of his house—Accused had failed to substantiate that the recovered articles were not in his. exclusive possession—Merely raising the plea that some other persons also occupied the house was not sufficient to exonerate the accused from the charge—After the proof of recovery by the prosecution, accused had not discharged the burden shifted to him under S.29 of the said Act–Recovery witnesses and Chemical Examiner’s report had proved the guilt of accused—Impugned judgment did not suffer from any illegality or infirmity—Appeal was dismissed in circumstances.

2009  SCMR  306   SUPREME-COURT

ABDUL RASHEED VS State

Ss. 25 & 9(b)—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Recovery witnesses, status of—Section 25 of the Control of Narcotic Substances Act, 1997, has excluded the applicability of S.103, Cr.P.C. to the cases under the said Act—Prosecution witnesses being members of the raiding party are natural witnesses and their testimony cannot be discarded merely on the ground that they are the employees of police force.

2009  SCMR  291   SUPREME-COURT

State VS ABDALI SHAH

Ss. 21 & 9(c)—Criminal Procedure Code (V of 1898), S.537—Investigation by an unauthorized officer is an irregularity—Investigation carried out in the case by an officer not authorized to do so is merely an irregularity, which is curable under S.537, Cr.P.C.

2009  SCMR  291   SUPREME-COURT

State VS ABDALI SHAH

Ss. 497(5) & 537—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 21—Constitution of Pakistan (1973), Art.185(3)—Bail, cancellation—Huge quantity of 52 Kgs. of “Charas” was allegedly recovered from the dickey of the taxi of the accused—Police could not possibly foist such a huge quantity of “Charas” upon the accused—High Court had relied heavily upon the technical aspect of the seizure and arrest which was misconceived—Accused was apprehended by police during normal patrol duty and no raid was carried out by the police personnel, and as such S.21 of the Control of Narcotic Substances Act, 1997, was not applicable—Even otherwise, policy party could not be expected to go in search of the officer entitled to arrest the accused being an A.S.-I., on his apprehension—At the most this was an irregularity which was curable under S.537, Cr.P.C.—Second ground weighing with High Court that the investigation was not carried out by an official authorized to do so, was also devoid of substance, as no prejudice had been caused to accused by such investigation and it was merely an irregularity curable under S.537, Cr.P.C.—Bail allowed to accused was cancelled in circumstances.

2009  SCMR  141   SUPREME-COURT

MUHAMMAD ASLAM (AMIR ASLAM) VS DISTRICT POLICE OFFICER, RAWALPINDI

1. 9(c)—Criminal Procedure Code (V of 1898), Ss.561-A, 173 & 344—Constitution of Pakistan (1973), Art.185(3)—Quashing of proceedings—Accused was in jail for the last over eight months—Not a single witness had so far been examined in the case’ and the trial was being delayed on one pretext or the other—Examination of the accused conducted by the Medical Board pursuant to Court’s order had revealed a number of multiple injuries on his person and fracture of his one leg, which showed the atrocities committed by the police—No traces of “Charas” were found in the initial report of the Chemical Examiner who had asked for further sample, for examination of which extraordinary reasons were required—Formalities of Ss.173 and 344, Cr.P.C. had not been complied with and challan against the accused had not been submitted within the stipulated period, resulting in grave miscarriage of justice—Material on file did not make out any offence against the accused, charge on the face of it was groundless and no possibility of conviction of accused was present—Charge having been framed by Trial Court was no bar in the way of quashment of proceedings, continuation of which would be a futile exercise and wastage of time–Petitions for leave to appeal were consequently converted into appeals and allowed and impugned F.I.Rs. were quashed accordingly, with the direction to Jail Authorities to release the accused.

2009  PLD  39   SUPREME-COURT

TARIQ MEHMOOD VS THE STATE through Deputy Attorney-General, Peshawar

1. 9(c)—Constitution of Pakistan (1973), Art.185—Reappraisal of evidence—Charas in huge quantity had been recovered from the bag carried by the accused; recovery was proved by the members of raiding party, who had no personal reasons to involve the accused in a false case—Explanation offered by the accused for false implication was not plausible—Accused had not been able to point out any material discrepancy and contradiction in the evidence, suggesting even a slight doubt in the prosecution case arising in favour of accused—Record failed to show any legal or factual defect in the concurrent findings of two courts regarding the guilt of accused—Supreme Court declined to interfere with the judgment of High Court in circumstances.

2009  PLD  39   SUPREME-COURT

TARIQ MEHMOOD VS THE STATE through Deputy Attorney-General, Peshawar

1. 9(c)—Certain minor lapses in investigation do not affect the validity of the trial.

2009  PLD  383   SUPREME-COURT

SAIF-UR-REHMAN VS State

1. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Reduction in sentence, refusal of—Accused was sentenced to imprisonment for life with a fine of Rs.5,00,000 on account of recovery of huge quantity of narcotics from different cavities of the Jeep driven by him—Sufficient evidence existed on record to sustain to conviction of accused and defence counsel had consequently prayed only for reduction in his sentence on the ground that he was only a carrier, who had accepted to transport the said huge quantity of narcotics for some monetory compensation—Held, acceding to such a request would amount to laying down a law that a person who commits a crime not for any personal motive or reasons, but agrees to the same only on hire and for some monetary reward, would always be entitled to compassion, sympathy, mercy and could consequently demand leniency in the matter of quantum of punishment—Court cannot be a party to creating such a law which would amount to encouraging and in fact licensing the practice of hired assassins, hired dacoits, hired robbers and hired criminals of other sorts—Supreme Court, on the contrary, would declare that a hired offender was not entitled to any leniency or sympathy in the matter of quantum of punishment and such people deserved to be dealt with an iron hand and deserved the same kind of treatment which would be warranted in the case of any other criminal, if not stricter and harsher treatment—Leave to appeal was refused to accused accordingly.

2009  YLR  1632   QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD HUSSAIN VS State

Ss.2(s)(t) & 9(c)—Appreciation of evidence—475 kilograms Poppy straw containing Poppy seeds were recovered from the possession of accused who was responsible for the same—Poppy straw was part of opium—Section 9(c) of Control of Narcotic Substances Act, 1997 would come into play in circumstances, with regard to possession of narcotic drug psychotropic substance or controlled substances—Accused having rightly been convicted and sentenced, his appeal was dismissed.

2009  PCrLJ  1270   QUETTA-HIGH-COURT-BALOCHISTAN

THE STATE through Regional Director, Anti-Narcotic Force Balochistan VS ABDUL SAMAD

Ss. 9(c) & 48–Criminal Procedure Code (V of 1898), S.417—Appeal against acquittal—Record had shown that Trial Court had acquitted respondent/accused mainly on two grounds; (i) that the report of Chemical Expert was not made part of the record and nothing was on record showing that said report was made part and parcel of the Trial Court record; (ii) that the house from where the alleged recovery was made had not been proved to be owned by accused, while on the contrary, it had been concluded that the same was owned by someone else—None of the witnesses including the Investigating Officer had tendered any Chemical Expert report, nor the said report had been made as part of the record of file or any request was made within the purview of S.528, Cr.P.C. for leading additional evidence–Chemical report must be tendered in evidence to enable accused to rebut the same—Trial Court had passed the judgment on proper appraisal of evidence and law available and order of acquittal of accused was based on legal footing–In absence of any misreading and misappreciation or perversity in the impugned judgment of the Trial Court warranting interference by the High Court, appeal having no merit was dismissed.

2009  PLD  39   PESHAWAR-HIGH-COURT

YOUSAF GUL VS State

6. 9(c)—Criminal Procedure Code (V of 1898), S.516-A—-Appreciation of evidence—Sentence, reduction in—Charge against accused persons was regarding recovery of 406 Kgs. Charas and one Kg opium—Inspector though had admitted that there were 406 packets of Charas and each packet was weighing one Kg., but instead of preparing 406 samples, the Norcotic Inspector prepared 16, i.e. 15 parcels of 25 grams each and one parcel of 31 grams of Charas and third parcel of opium—If the Norcotic Inspector was taking one gram from each packet of one Kg, what stopped him not to take more than one gram from each packet and to prepare as many number of parcels as were the packets–In the present case, besides 17 samples, two parcels were prepared by the Magistrate, while he was proceeding under S.516-A, Cr.P.C. and he had admitted in his certificate that he took 10 grams each from 16 packets—Purpose of taking samples by the Magistrate before the case property was destroyed, was to preserve the samples for its production before the Trial Court as statutory presumption was that samples taken under S.516-A, Cr.P.C. were to be taken, not as a part, but as whole of the case property—Magistrate, who supervised the destruction of the case property, should have been examined as a witness to prove, not only that the case property was destroyed in his presence, but also to prove that it was the case property of the case under trial and also to prove that the samples taken by him were part of the case property destroyed—When the prosecution could have produced the Magistrate, but failed to produce him in given circumstances depending on case to case, the evidentiary value with regard to the destruction of case property would lose its sanctity—Prosecution could produce better evidence to prove that the whole quantity recovered was nothing, but narcotics, but the prosecution had failed to discharge its duties, except to the extent of taking samples by the Magistrate and the samples received by the Laboratory Jul chemical analysis—Magistrate had prepared two samples under S.516-A, Cr.P.C, but when accused persons were examined under S.342, Cr.P.C. they were confronted with the sample of opium and not regarding the samples of the Charas—Prosecution had proved guilt of accused, but to the extent of total recovery of 6.660 Kg of narcotics—Conviction of accused recorded by the Trial Court stood maintained under first part of S.9(c) of Control of Narcotic Substances Act, 1997 and not under its Proviso—Sentence of life imprisonment was reduced to six years each—Fine amount of Rs.2 lac each was also reduced to Rs. one lac each.

2009  PLD  33   PESHAWAR-HIGH-COURT

SALEH SHAH VS SUPERINTENDENT JAIL, CENTRAL JAIL HARIPUR

Ss. 401 & 382-B—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Constitution of Pakistan (1973), Art.199—Constitutional petition—Remission in sentence—Recalling of concession—Counting of detention period—Legislature had extended the benefit of counting the detention period towards the sentences of the prisoners, when awarded by the court and had granted relief on the principles of equity and justice so that the period of detention undergone by the under-trial prisoners would not go awaste, but they must be compensated for that—Such relief/concession, however was only confined to ‘add the period of detention towards the length of sentence awarded to a prisoner, but it would not include the remission in sentence granted to prisoners facing trial, because detention and sentences were altogether two different terms, which could not be intermingled nor the clear intent of the Legislature, in that regard, could be defeated by giving it extended scope of meaning—If Legislature, wanted to extend the benefit in remissions of sentences, then it could have done it through express words and necessary intendment which was not the case—Jail Authorities, not only had disregarded the orders/proclamation/remissions in sentences issued by the President/Government, but had also acted in clear violation of the provisions of S.382-B, Cr.P.C.; and also against the relevant rules contained in Jail Manual, where prisoners sentenced to imprisonment and those facing trial were placed poles apart from each other; and in that way the Jail Authorities, without the sanction of law and legal authority inadvertently and under entire misconception added the remission in sentence in the remission sheets of the prisoners—Petitioner in the case, was not the only one, but hundreds and hundreds of prisoners were therefrom whom the concession granted illegally was withdrawn—Element of discrimination, in circumstances was not available in the case—Once it was found that the Jail Authorities were not legally competent nor they were authorized by the provision of law or by the very orders granting remissions in the sentences, then granting the said concession to the petitioner by the Jailer, was absolutely without lawful authority and ab initio void and it was not competent to grant the concession/confer benefit on the petitioner—When ‘the order was coram non judice, then its withdrawal was within the jurisdiction and competency of the Jailer—In the present case petitioner being still undergoing the remaining part of the sentence, the principle of recalling the concession would be attracted—Jailer was not competent to grant the concession of remission to the petitioner, under the statutory law, the rule of the Jail Manual and also in view of clearly understandable order/notification/proclamation, issued by the President/ Government–Concession granted to the petitioner, held, was without lawful authority and being ab initio void the Jailer was competent to withdraw it to which no exception could be taken.

2009  YLR  1380   PESHAWAR-HIGH-COURT

FAZL-E-MAULA VS State

1. 9—Appreciation of evidence—No admissible evidence of any kind was available to show any nexus of co-accused with the recovered charas—Prosecution was bound to prove with cogent evidence that accused was the driver and co-accused was the conductor of the bus in question from secret cavity of which charas was allegedly recovered—Accused persons had been convicted on the basis of conjectures and surmises and not on the basis of tangible evidence—Neither there was ocular testimony nor documentary proof of the fact that accused was the driver and co-accused was the conductor of the bus in question—Accused persons had not made any confessional statement-Conviction of accused persons, was not sustainable for lack of evidence—Conviction and sentence of both accused persons, was set aside and they were acquitted of the charge levelled against them and they were directed to be released forthwith.

2009  YLR  246   PESHAWAR-HIGH-COURT

SHERAZ KHAN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of—Further inquiry—F.I.R. showed that 4500 grams Gardah Charas was recovered from the possession of accused, which was not “Charas” in its entirety and was always subject to baking and chemical process and after that process the quantity was always substantially reduced—Recovery in the case was allegedly made and same was received by the Laboratory after 22 days of the alleged recovery—Under the provisions of Control of Narcotic Substances (Government Analysis) Rules, 2001 sample had to be sent to the Laboratory within 72 hours—In the present case it was not discernible from the record that during 22 days of the recovery in whose possession the sample remained, which had made the case of accused one of further inquiry—Investigation in the case was complete—Challan had been put in court and trial was in progress and accused was no longer required to be kept in jail as same would never serve any useful purpose—Accused was ordered to be released on bail, in circumstances.

2009  YLR  189   PESHAWAR-HIGH-COURT

GULAB HUSSAIN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Bail, grant of—Recovery had allegedly been made from accused in a train stationed at Railway Station, which was a busy place, but none among the public had been associated with recovery proceedings—Charas recovered was 1200 grams which by margin exceeded 1000 grams—Court while seized of the bail application, had also to keep in mind the maximum sentence likely to be awarded to accused—In the present case, record did not show that accused was a previous convict or involved in such like cases—Accused, in circumstances, was entitled to the concession of bail—Bail was allowed to accused, in circumstances.

2009  YLR  61   PESHAWAR-HIGH-COURT

GULDARAZ KHAN VS State

1. 9(c)—Appreciation of evidence—Accused did not opt to contest the appeal on merits and had requested for reduction in the sentence awarded to him by the Trial Court—Validity and scope—Accused was a first offender and was neither a drug-trafficker nor previously involved in such like cases—Accused being a young student of about eighteen years, his submission needed due consideration—Case of accused could be considered leniently in circumstances and he could be granted reduction in quantum of sentence—While maintaining conviction of accused, his sentence was reduced from one year R.I. to the period already undergone, but his sentence of fine was maintained.

2009  YLR  45   PESHAWAR-HIGH-COURT

AKHTAR JAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail, grant of–Accused was charged under S.9(b) of Control of Narcotic Substances Act, 1997, maximum sentence for which was 7 years–Investigation in the case was complete and accused was no longer required for investigation—Punishment for offence against accused was not hit by the embargo laid in S.497, Cr. P. C. —Accused was released on bail, in circumstances.

2009  YLR  30   PESHAWAR-HIGH-COURT

MUTEEN KHAN VS State

1. 9(c)—Appreciation of’ evidence—Sentence, reduction in—Impugned judgment of conviction was result of correct appreciation of evidence brought on record, which need not to be interfered with—Huge quantity of contraband narcotics was recovered from the secret cavities of the car in question which was being driven by accused at the relevant time—Official witnesses were as good witnesses as general public till such time that any animosity was proved on record against them—No evidence was available against accused to prove that he was either a drug trafficker, previous convict or previously involved in such like activities—Case of accused, in circumstances could be considered for reduction of sentence—Quantum of sentence seemed to be harsh and needed to be reviewed—Maintaining conviction of accused, sentence of imprisonment awarded to accused was reduced from eight years to four years’ R.I. and sentence of fine was also reduced from Rs. 50,000 to Rs. 20,000 accordingly.

2009  PCrLJ  1381   PESHAWAR-HIGH-COURT

MUNAWAR HUSSAIN VS State

1. 9(c)-Appreciation of evidence—Contention of counsel for accused that the recovery of the alleged contraband was not effected from accused, was belied by the statement of Inspector and other prosecution witness, who was official of ANF staff having accompanied the Investigating Officer/complainant at the relevant time, as they had fully supported each other on material particulars of the prosecution case—Witnesses in their deposition had given a straightforward and confidence inspiring evidence and defence despite lengthy cross-examination had failed to shatter their credibility in any way—Accused were arrested on the spot along with the contraband and the report of the F.S.L. in that regard was in the positive—No material discrepancy was found in the statements of the prosecution witnesses and accused had not alleged any ill-will or grudge of the ANF Officials for their false involvement—Well reasoned findings of the Trial Court holding accused guilty of the charge, was not open to any exception—Neither such huge quantity of the contraband could be planted by the prosecution -against accused nor material contradiction or discrepancy had been brought on record to shatter the credibility of the prosecution witnesses and accused had not alleged any ill-will or grudge of ANF Officials for their false involvement—Well reasoned findings of the Trial Court holding accused guilty of the charge was not open to any exception—Neither such huge quantity of the contraband could be planted by the prosecution against accused nor material contradiction or discrepancy had been brought out on the record to shatter the credibility of the prosecution evidence—Prosecution witnesses had fully supported and corroborated its case with the confidence inspiring evidence and accused had failed to prove their defence plea by producing evidence worth the name in support of their defence plea—No interference was warranted in the well reasoned judgment of the Trial Court.

2009  PCrLJ  1371   PESHAWAR-HIGH-COURT

YOUSAF VS State

1. 9(c)—Appreciation of evidence—Witnesses in their depositions had given a straightforward and confidence inspiring evidence and the defence, despite lengthy cross-examination, had failed to shatter their credibility in any way—Accused was arrested on the spot along with the contraband heroin—As per 12 packets of sample, in report of Chemical Examiner those were found to contain heroin and per other report, the brown and dark brown powder was also found to be heroin–Contradictions in the statement of prosecution witnesses were of no consequence, because it had been observed that private prosecution witnesses, invariably make obliging concession for fear of retribution at the hands of NARCO smugglers—Otherwise no contradiction was found in the prosecution case on material points of time and place of recovery, arrest of accused from Bus along with 12 Kgs. of heroin—Accused had not alleged any ill-will or grudge of ANF Officials for his false involvement—Well reasoned findings of the Trial Court holding accused guilty of the charge, were not open to any exception—Neither such huge quantity of heroin could be planted by the prosecution’ against accused nor material contradiction or discrepancy had been brought out from the record to shatter the credibility of the prosecution evidence—Prosecution witnesses had fully supported and corroborated its case with the confidence inspiring evidence and accused had miserably failed to prove his defence plea by producing evidence in its support—No interference was warranted in the well reasoned judgment of the Trial Court.

2009  PCrLJ  1356   PESHAWAR-HIGH-COURT

QASIM VS State

1. 9(c)—Appreciation of evidence—Contention of counsel for accused that recovery of four Kg. heroin was not effected from accused, was belied by the statement of Inspector/prosecution witness and other Police Official—Samples separated from the heroin were declared to be heroin by the Chemical Examiner—Neither such huge quantity of heroin . could be planted by the prosecution against accused nor any enmity or grudge against the prosecution witnesses was claimed by accused for plantation of such a huge quantity of heroin—Accused was arrested on the date, time and place as alleged by the prosecution—No material contradiction or discrepancy had been brought on record to shatter the credibility of the prosecution evidence—In absence of enmity/grudge of the prosecution witnesses with accused, there was no possibility of planting of such a huge quantity of narcotics by the prosecution–Prosecution witnesses had fully supported and corroborated its case with their cogent, solid and confidence inspiring deposition and had proved the guilt of accused beyond reasonable doubt—No exception could be °taken to well reasoned judgment of the Trial Court.

2009  PCrLJ  1278   PESHAWAR-HIGH-COURT

NASRULLAH VS State

Ss. 9(c)/14/15—Appreciation of evidence—Prosecution case hinged on the direct evidence furnished by two prosecution witnesses, one was Police Inspector and other was Head Constable, the recovery of the incriminating material from the direct physical and conscious possession of accused persons and the positive report of the Forensic Science Laboratory—Police Inspector, had not only affirmed his earlier version, but narrated the subsequent events in the case—Said functionary was cross-examined on all material particulars, but nothing favourable to accused came out from his mouth and his testimony remained unshattered; he was true witness of the incident and his testimony was rightly taken into consideration—Other prosecution witness who was Head Constable was also put to lengthy cross-examination by the defence, but his testimony also remained unrebutted on every aspect of the case—Though both said two prosecution witnesses were Anti-Narcotic Force Officials, but since the defence had failed to prove any animosity or rancor against accused persons so as to falsely implicate them in the crime, their deposition was rightly believed by the Trial Court—Proved and unchallenged testimony of said two prosecution witnesses, having revealed the date, time, place of occurrence, presence of the recovered contraband Charas from the secret cavities of the motor car in question, the prosecution had successfully established and proved its case against accused persons—Accused were correctly found guilty for the offence and were rightly convicted and sentenced through impugned, judgment—Counsel for accused had failed to point out any illegality, irregularity, perversity, non-appraisal of evidence or jurisdictional defect in the impugned judgment of conviction, which was accordingly maintained.

2009  PCrLJ  523   PESHAWAR-HIGH-COURT

SHAIR KHAN VS State

Ss. 3, 4 & 9(c)—Appreciation of evidence—No direct or circumstantial evidence was available to connect accused with the commission of the offence—Alleged recovery of narcotic substance was not effected from the direct physical and conscious possession of accused—Accused was not apprehended by the police with the alleged recovered contraband Charas—Material contradictions were found in the statements of the prosecution witnesses who were not worthy of reliance—Manner of arrest of accused and recovery of the narcotics were highly doubtful—Trial Court had not appreciated the prosecution evidence in its true perspective and impugned judgment of conviction of the Trial Court was not in conformity with the provisions of S.367, Cr.P.C.—Prosecution case was full of doubts, the benefit whereof would entitle accused to acquittal—Impugned conviction and sentence of accused were set aside and accused was acquitted of the charge brought against him in the case and he was set at liberty, in circumstances.

2009  PCrLJ  501   PESHAWAR-HIGH-COURT

NADEEM AKHTAR VS State

Ss. 489-B & 489-C—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Appreciation of evidence—Sentence, reduction in—Accused was arrested in a Punjab bound train and forged currency notes were recovered from his Chapples (Shoes), meaning thereby that he knew the currency notes to be forged—Statements of the prosecution witnesses were consistent and except to the extent of some minor inconsistencies, they were ret c tattered in the cross-examination—Accused, in circumstances, was rightly convicted—Sentence against accused was not recorded in accordance with the established principles, because accused was first offender—Mandatory provisions of S.489-B, P.P.C. regarding imposition of fine were ignored as accused was sentenced to 5 years’ R.I. only under the said section—Sentence of imprisonment awarded to accused under S.489-B, P.P.C. was reduced from 5 years’ to 2 years’ R.I. with a fine of Rs.5,000, while sentence of imprisonment recorded under S.489-C, P.P.C. was maintained, whereas the fine imposed by the Trial Court, was set aside—Benefit of S.382-B, Cr.P.C. would remain intact and the sentences would run concurrently.

2009  PCrLJ  50   PESHAWAR-HIGH-COURT

AKHTAR ALI VS State

1. 9—Appreciation of evidence—Benefit of doubt—Occurrence had taken place at day time on the main road which was a busy road always plied by heavy traffic, but none was associated with the recovery proceedings nor produced during the trial—Contraband was allegedly recovered from the secret cavities of motorcycle, but the said motorcycle had not been produced before the court during the trial, nor exhibited which had direct nexus with the edifice of the prosecution story—Alleged story about the recovery of five Kilograms of contraband from secret cavities of a small vehicle did not appeal to common sense and same was unbelievable—Late sending of alleged sample to the Forensic Science Laboratory was another important defect in the prosecution story and that too, was shrouded in the mystery, that in whose possession the alleged samples remained for four days—Fact about the person who took the sample to Laboratory, was also not proved from the record—Evidence produced by the prosecution was full of contradictions which made the case of the prosecution doubtful and any doubt if arising in the links of the chain of prosecution story, the benefit of same would go to accused—Conviction and sentence recorded by the Trial Court against accused, were set aside and he was acquitted of the charge and was set free.

2009  PLD  14   PESHAWAR-HIGH-COURT

Syed MEHMOOD SHAH VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Sentence, reduction in—Material prosecution witnesses, were unanimous on the point of time, place of occurrence, recovery of arms and ammunitions and seizure of narcotics from the secret cavities of the vehicle driven by accused—Samples of contraband articles sent for chemical analysis were also found by the Chemical Examiner to be charas and opium—Planting of such a huge quantity of narcotics was next to impossible for the Police officials—Even otherwise it was not claimed by accused in his statement recorded under S.342, Cr.P.C. that same was planted on him by the police officials—Case being of nakabandi/checking and the prosecution witnesses being members of the checking party, their presence at the spot was natural—Police officials being competent witnesses like any other independent witness, their evidence could not be discarded merely for the reason that they were the police employees—Contention of Defence Counsel regarding non-joining of private witness had no force because S.25 of Control of Narcotic Substances Act, 1997 had excluded the application of S.103, Cr.P.C.—Testimony of prosecution witnesses had been corroborated by the report of Chemical Analyst which was positive—Delay of few days in sending the samples to Laboratory due to rush of work, was of no consequence, in view of the huge quantity of narcotics recovered from the secret cavities of vehicle in possession/in the charge of the accused—Objection regarding non-production/exhibition of case property was not tenable as case property was destroyed in accordance with law and samples obtained therefrom had been exhibited on record—Prosecution had successfully established the guilt of accused to the hilt by producing evidence and defence counsel had not been able to point out any error or illegality, misreading or non-reading of evidence in the impugned judgment of the Trial Court—However keeping in view the quantity of narcotics and old age of 65 years of accused and the fact that he was the driver of the vehicle in question, ends of justice would be met if death sentence awarded to accused by the Trial Court was reduced to the imprisonment for life—Death sentence was converted to imprisonment for life maintaining conviction of accused.

2009  MLD  1490   PESHAWAR-HIGH-COURT

MUHAMMAD NAEEM VS State

S.497(2)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4—Bail, grant of—Further inquiry—Accused who was driving the vehicle from which incriminating substance was allegedly recovered, after seeing the Police made no effort to decamp from the scene of occurrence; while one of co-accused:-not only tried but succeeded in making his escape good from the spot—Question, whether accused could be . saddled with conscious possession of the incriminating substance recovered from the vehicle in cartons, was one calling for further inquiry—Fact that accused had been in jail for almost four months, but commencement of his trial was not insight, would also add in “favour of his bail rather than jail—Even attraction of prohibitory clause of S. 497, Cr.P.C. would be doubtful in the case when accused was likely to be awarded the maximum sentence provided by the statute for possessing 5 kgs of charas as it was the quantum of sentence always invariably followed the quantum of substance recovered—Accused was directed to be released on bail, in circumstances.

2009  MLD  1211   PESHAWAR-HIGH-COURT

SAJJAD ALI SHAH VS State

S.9(c)—Appreciation of evidence—Sentence, reduction in—Accused was arrested red-handed while carrying 6 Kgs. of heroin’ on bicycle—Statement of ‘accused under S.340(2), Cr.P.C. that he had been falsely implicated in the case, was shattered in the cross-examination—Statements made by two witnesses produced by accused were also not inspiring confidence and were not sufficient to rebut the evidence of the prosecution—Plantation of heroin worth lacs of rupees on accused, was not believable and accused had introduced that story just to save his skin—Officials of Anti-Narcotic Force had no mala fide against accused for his false implication and their statements regarding recovery were consistent—Investigating Officer, under the law was not required to disclose the name of informer—Non-preparation of site plan was also not fatal—Heroin exhibited in the court was in granule powder form, regarding which report was in positive—Exact weight of heroin was not established, because it was weighed along with the wrappers and bags—Conviction of accused, in circumstances was recorded in accordance with law, after proper appraisal of evidence, which was maintained being un­exceptional—Accused being a first offender, in the interest of justice, his sentence of imprisonment was reduced from twelve years’ R.I. to eight years’ R.I. and fine of rupees two lac to rupees one lacs.

2009  MLD  467   PESHAWAR-HIGH-COURT

ZAHIR SHAH VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of—Further inquiry—Accused was neither the owner of the car which was used to carry narcotics nor he was the driver thereof and he was merely travelling in the car without having the conscious knowledge or physical possession of the narcotics—Person being the driver of a private vehicle, was supposed to be aware of the material recovered from the secret cavities of such vehicle—Driver of a public transport vehicle was not supposed to be responsible for any material in possession of the casual passenger—Person travelling with the driver could not be automatically considered to be privy of the offence of transportation of the narcotics, unless any link or nexus with the vehicle in question or driver or the recovered narcotics was established—person having proved to be the owner of the vehicle and travelling thereon, would certainly be considered equally responsible with the driver thereof because he being the owner was supposed to have the knowledge about the cavities of the vehicle or there could be a possibility of using the driver as a carrier only, whereas the owner’ could be the real culprit—Person found on the front seat of the vehicle could not be blindly held responsible for anything in the secret cavities of the vehicle, unless it was established that he was the owner of the vehicle or the narcotics—Car belonged to one who had been dubbed as an accused in the case—Responsibility could be fixed on accused, if any connection between accused or the owner could be established, which had not been done by the Investigating Officer, rendering the case as one of further inquiry—Insufficient material, whereby the connection of accused with the principal accused could not be established, was considered to be a sufficient ground for releasing accused on bail particularly when the recovery was made from the secret cavities of the car—Accused was admitted to bail, in circumstances.

2009  MLD  335   PESHAWAR-HIGH-COURT

MUHAMMAD BILAL VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of—Accused was a student of Higher Secondary School and nothing was on record that he was either a previous convict or previously involved in such like activities—Case of accused, in circumstances, could be considered for the purposes of bail—Venue of the occurrence was a public place which was always being plyed by heavy traffic, but none from the public was associated With the recovery proceedings—Non-association of public would not be treated as an irregularity except in cases where none was available–When the venue of occurrence was a public and over-crowded place, then the public witness had to be associated with the recovery proceedings—Challan in the case was complete and accused was no longer required for investigation—Accused was ordered to be released on bail, in circumstances.

2009  MLD  131   PESHAWAR-HIGH-COURT

BAKHTIAR VS State

Ss. 9(c), 32, 33 & 48—Appreciation of evidence—Confiscation of vehicle—Owner of vehicle allegedly used in occurrence had impugned order of the Trial Court in appeal to the extent of confiscation of vehicle—Before confiscation of the vehicle, the issuance of notice to the appellant/owner as envisaged under the provision of S.33, Proviso of Control of Narcotic Substances Act, 1997 was mandatory—Subsection (2) of S.32 of Control of Narcotic Substances Act, 1997 also permitted the confiscation of the vehicle only when it was proved that the owner had the knowledge that offence was being committed and such point had to be determined in accordance with law after issuing of a notice to the owner of the vehicle and affording a chance of hearing to him—No notice as envisaged under Control of Narcotic Substances Act, 1997, having been given to the appellant/owner of the vehicle, order of confiscation of vehicle was liable to be struck down on that sole ground—Impugned order of the Trial Court to the extent of confiscation of vehicle in question, was set aside and case was remanded to the Trial Court with the direction to proceed with the same strictly in accordance with law.

2009  MLD  90   PESHAWAR-HIGH-COURT

MUHAMMAD WALI VS State

1. 9(c)—Appreciation of evidence—Sentence, reduction in—Huge quantity of contraband heroin was recovered from the secret cavities behind the driver’s seat of the bus made of wood and accused could not say that they had no knowledge about recovered substance—Prosecution had successfully proved its case against accused and impugned conclusion of the Trial Judge was based on correct premises and established principle of appreciation of evidence—No illegality or irregularity appeared so as to warrant interference in the judgment of the Trial Court; however, no evidence was against accused to prove that they were either drug traffickers, previous convicts or previously involved in such like activities—Case of accused could be considered for reduction of sentence awarded to them as quantum of sentences awarded to accused seemed to be harsh and needed to be reduced—Sentences of five years’ R.I. awarded to accused were reduced to three years R.I. each and fine amounting to Rs. one lac was reduced to Rs.10,000 each, accordingly.

2009  MLD  65   PESHAWAR-HIGH-COURT

DARWAISH VS State

1. 9(c)—Appreciation of evidence—Sentence, reduction in—Four Kilograms opium was recovered from the waistcoat of accused when he was travelling in a passenger bus—Material on record showed that prosecution had duly proved its case against accused, who had been rightly convicted and sentenced by the Trial Court—No evidence was available against accused to prove that he was either a drug trafficker, previous convict or previously involved in such like activities—Case of accused, in circumstances, could be considered for reduction of sentence—Quantum of sentence awarded to accused seemed to be harsh and needed to be reviewed—While maintaining the conviction of accused, his sentence of imprisonment was reduced from five years to three years R.I. and sentence of fine from Rs.10,000 to Rs.5,000, accordingly.

2009  PLD  549   LAHORE-HIGH-COURT-LAHORE

ALTAF ASHRAF VS State

1. 9(c)—Appreciation of evidence—Except the statement of co-accused under S.164, Cr.P.C., prosecution had not collected an iota of evidence to establish the involvement of accused in the case—Said statement of co-accused under S.164, Cr.P.C. having been recorded in the absence of accused, no opportunity had been provided to accused to cross-examine the co-accused—Statement of co-accused, therefore, could not be used against the accused as a substantial piece of evidence, especially when co-accused while confessing his guilt before Trial Court had not named the accused as one of his co-accused—Sole testimony of an approver or accomplice could not safely be relied upon in the absence of a corroborative piece of evidence—Accused was acquitted in circumstances.

2009  PLD  362   LAHORE-HIGH-COURT-LAHORE

GHULAM MURTAZA VS State

1. 9(a)(b) & (c)—Sentence—High Court, after having pondered and mulled over the issue of sentence from diverse angles including legal, social and economic perspectives, approved and prescribed the normal and standard sentences for different quantities of various contraband narcotic substances recovered in connection with the control of Narcotic Substances Act, 1997 and provided charts and principles therefor.

2009  PLD  362   LAHORE-HIGH-COURT-LAHORE

GHULAM MURTAZA VS State

1. 9(a), (b) & (c)—Sentence—Principles to be followed as regards a previous convict, a woman and a child while sentencing them.

2009  YLR  1837   LAHORE-HIGH-COURT-LAHORE

ABDUL RAZZAQ VS State

1. 9(c)—Appreciation of evidence—Benefit of doubt—No explanation was on record as to where was the case property kept by the complainant after taking it into his possession—Complainant remained silent about that fact during his statement—No steps were taken for keeping the case property in safe custody—Both prosecution witnesses had stated before the Investigating Officer when examined under S.161, Cr.P. C. that 15 parcels were given to them—However, during their examination-in-chief both spoke about receipt of 6 sealed parcels—Said lapse of the complainant about disposal of the case property in the light of statements of said two prosecution witnesses before the Police that they received 15 parcels and their failure to provide sufficient explanation, when put to test, had created serious dents in the charge—Accused succeeded in’ impeaching the credibility of the prosecution witnesses by creating doubts in the prosecution story, the benefit of which was to be given to accused—Impugned judgment of the Trial Court convicting and sentencing accused was set aside and accused was acquitted of the charge and was released.

2009  YLR  1825   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD RIAZ VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of–No evidence was on record which could, prima facie, connect accused with the charge against him—Accused was not present when his co-accused led to the recovery of charas from secret cavities of the truck in question—Accused was also not present when the disputed truck had been seized by the Police—Truck in question remained in the custody of Police for about five months—Only 156 kilograms charas had allegedly been recovered from that truck by the Police—Accused was wrongly described as owner of the truck in question, but it belonged to other person—No direct or circumstantial evidence was available in Support of self-assertion of Sub-Inspector of police that accused purchased the recovered charas from his co-accused—Self-assertion could not be the substitute of evidence—Till date case was of no evidence to the extent of accused—Accused could not be and should not be blamed for the disputed recovery of charas at the pointing out of co-accused—Further detention of accused in the case would amount to his illegal confinement—Accused was admitted to bail, in circumstances.

2009  YLR  1040   LAHORE-HIGH-COURT-LAHORE

ASIF MEHMOOD VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of–“Post” weighing 1½ Kg. and “Bhang” weighing 19 Kg. were allegedly recovered from the “Dawakhana” of accused—On quantitative test quantity of narcotic substance in `Post” was always detected meagre and on this score case against accused would definitely fall within the ambit of section 9 (b) of the Control of Narcotic Substances Act, 1997—Question as to whether “Bhang” falls within the domain of the said Act or not was also a matter of further inquiry—Bail was allowed to accused in circumstance.

2009  YLR  1029   LAHORE-HIGH-COURT-LAHORE

MALITA SYED SHAH VS State

1. 497 [As amended by Protection of Women (Criminal Laws Amendment) Act (VI of 2006)]—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c)/15/51–Bail, refusal of—Accused who was a woman, had been involved in a case for being in possession of the huge quantity of heroin, a contraband of the worst nature and she made an abortive attempt for its transportation abroad—Was not possible at bail stage to infer that case was totally based upon false evidence or that it was a case of no evidence—Amendment of S.497, Cr. P. C. through the Protection of Women (Criminal Laws Amendment) Act, 2006, was not applicable to the cases under the Control of Narcotic Substances Act, 1997—Accused a woman involved in such case could not be released on bail, unless the Court, after examining the entire material brought on record, came to a tentative conclusion that material to connect accused with the commission of the offence was quite lacking—Inference drawn by the counsel for accused for grant of bail under S.51 of Control of Narcotic Substances Act, 1997 by conjunctive application of the Provisions of S.5-A(8) of Suppression of Terrorist Activities (Special Courts) Act, 1975 and the other laws referred by him could not be accepted—Material available on the record prima facie, had connected accused with the alleged offence—Case was not fit for the grant of bail to accused, in circumstances.

2009  YLR  646   LAHORE-HIGH-COURT-LAHORE

ERAN GUL VS State

1. 9(c)—Appreciation of evidence—Accused was driving vehicle which was apprehended by the police and 17 Kg. Charas was recovered therefrom—Not impossible that accused was not aware of the fact that such a huge quantity of Charas was concealed in the said vehicle which was under his control—All recovery witnesses had stated that the Charas weighing 17 Kg. was recovered from his car—Accused could not absolve himself from the responsibility of keeping such a huge quantity of Charas in his vehicle—Offence under S.9(c) of the Control of Narcotic Substances Act, 1997, stood proved against accused, in circumstances—Sentence awarded to accused by the Trial Court being adequate, same called for no interference by the High Court—Conviction and sentence of accused was maintained, in circumstances.

2009  YLR  646   LAHORE-HIGH-COURT-LAHORE

ERAN GUL VS State

1. 9(c)—Appreciation of evidence—Co-­accused was travelling in the vehicle driven by accused and it was not clear from the prosecution evidence as to whether he was a passenger in the .vehicle or not—Prosecution evidence was silent regarding vicarious liability of co-accused or his intention about the concealment of narcotic substances in the vehicle in question—Said co-accused was not having the control of vehicle from where such narcotic substance was recovered—Nothing was on record showing that co-accused was having common intention with his co-accused qua the custody of the narcotics or offered any assistance in that regard—Prosecution had not been able to prove its case against co-accused beyond any reasonable doubt—Case against co-accused being doubtful, he was given benefit of doubt and was set at liberty, in circumstances.

2009  PCrLJ  1427   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD JAVED alias JAIDA VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51—Bail, refusal of—Accused was found in possession of 1.750 Kgs. of Charas—Accused and his relatives had criminal record—Eleven cases including five narcotic cases stood registered against the accused—Three sons of accused were respectively involved in 20, 3 and 6 cases—Two brothers-in-law of accused were also involved in 10 and 3 cases respectively; most of the cases were under Control of Narcotic Substances Act, 1997—No mala fide or malice on the part of police or false involvement in the present case or the cases in his previous record were shown—Accused appeared to be habitual criminal of drug trade, such-like persons may not be let loose on the society for repeating their nefarious activities—Section 51 of the Control of Narcotic Substances. Act, 1997 imposed an embargo upon grant of bail in cases registered under the Act—Accused, in circumstances, was not entitled to the concession of bail.

2009  PCrLJ  1334   LAHORE-HIGH-COURT-LAHORE

Agha QAIS VS State

25. 9(c)—Police Order (22 of 2002), Art.18—Police Rules, 1934, R.25.2(3)—Investigating Officer acting in many capacities—Effect—Investigating Officer is an important witness also for the defence and in case the head of the police party also acts as an Investigating Officer, he ,may not be able to discharge his duties as required under the Police Rules.

2009  PCrLJ  1334   LAHORE-HIGH-COURT-LAHORE

Agha QAIS VS State

25. 9(c)—Police Order (22 of 2002), Art.18—Police Rules, 1934, R.25.2(3)—Appreciation of evidence—Investigating Officer being a neutral authority could not be a complainant and a witness in a case which he was investigating, as was evident from Art.18 of Police Order, 2002 and R.25.2(3) of the Police Rules, 1934—Investigation in the case, therefore, was not fair, honest and transparent—Where an Investigating Officer had acted as a complainant and raiding officer, defence would be deprived of its very precious right and forced not to depend upon him—Non-production of the case property in the Court was fatal to the prosecution case, which had destroyed its very foundation—Incriminating report of Chemical Examiner, basis of the prosecution case, having not been put to accused in his statement under S.342, Cr.P.C., had deprived him of the opportunity to explain the said incriminating evidence—Accused was acquitted in circumstances.

2009  PCrLJ  1334   LAHORE-HIGH-COURT-LAHORE

Agha QAIS VS State

1. 9(c)—Non-production of case property in Court—Effect—Unless the recovered narcotics are produced in the Court, it cannot be found that accused was carrying them on his person and the same were recovered from him.

2009  PCrLJ  1221   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SARWAR alias PAPU VS State

25. 9(c)—Police Rules, 1934, Rr.25.3 & 25.4—Appreciation of evidence-Complainant Police Officer named in the F.I.R. was not produced before the Court—Bag from which narcotics were recovered was locked, and it was opened after obtaining key from the accused, but. the same were not taken into custody—Investigating Officer had not seen the case property on reaching the place of occurrence and he did not take the same into custody—Said Police Officer had failed to give details of the case property even in the Court and he was contradicted’ by other prosecution witness regarding handing over the case property-and other material particulars—Enigmatic – deletion of the complainant Police Officer from the prosecution evidence had created a lot of doubt in the prosecution version and observation of Trial Court in this regard was contradictory to several pieces of evidence present on record—Violation of Rr.25.3 and 25.4 of Police Rules, 1934, coupled with other flaws and doubts created in the case, had contaminated and blurred the prosecution story—Accused was acquittal in circumstances.

2009  PCrLJ  840   LAHORE-HIGH-COURT-LAHORE

Malik KHALID HUSSAIN VS State

1. 9(c)—Appreciation of evidence—Recovery witnesses were credible and consistent on all material aspects of the case without any material discrepancy and improvement—Police had no ill-will or previous enmity with the accused and could not be conceived to have gone to the extent of planting a huge quantity of narcotics on him just for his false implication–Public was generally reluctant to become witnesses in such-like cases out of fear of reprisals from the accused side—In any case, police witnesses were as good witnesses as any other public witness—Incompetency of a Police Officer to search and arrest the accused and conduct investigation in the case, was only an irregularity and. not an illegality vitiating the entire process—Positive report of Chemical Examiner had supported the recovery witnesses, which even otherwise had not been questioned by the defence despite having been dull put to the accused at the trial—Defence plea of false implication had not been substantiated by accused through any evidence—Trial Court had appreciated the evidence in its true perspective—Conviction and sentence of accused were upheld in circumstances.

2009  PCrLJ  469   LAHORE-HIGH-COURT-LAHORE

IFTIKHAR AHMED VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S. 540—Summoning of Chemical Analyst as court witness—Application for summoning the Chemical Analyst as Court witness in the case having been dismissed by the Trial Court, applicant had, filed revision against that order–Contention of the petitioner was that 20 packets of Charas were allegedly recovered from the petitioner, while one packet was containing one Kg. opium; and the Investigating Officer separated 10 grams each from the opium out of 20 packets of Charas and then Charas was mixed into one packets of 200 grams and was sent to the Chemical Examiner for report and the Chemical Examiner gave positive report in that respect—Plea of the petitioner was that since the Investigating Officer had mixed all the 20 packets of 10 grams each, therefore Chemical Analyst was required to be summoned as court-witness to face cross-examination by accused as each independent packet of 10 grams was required to be sent to the Chemical Analyst for report—Validity—Counsel for the petitioner could not convince as to why Chemical Analyst was desired to be summoned by the petitioner for cross-examination and on what count; and even if the Investigating Officer had mixed 20 packets of samples of 10 grams each into one composite packet of 200 grams after taking 10 grams each from 20 packets of Charas weighing 24 Kgs. allegedly recovered from the petitioner, what prejudice had been caused to the petitioner and why Chemical Analyst was required to be summoned—From all packets of recovered Charas 10 grams each was separated for chemical analysis and the total was mixed into one picket of 200 grams and was sent to Chemical Analyst and the report was positive; as regarded one Kg. packet of opium, 10 grams opium was separately taken out from said one Kg.; and separately sent to Chemical Analyst, report of which was also on record—No prejudice had been caused to the petitioner by the report of Chemical Analyst, at least by the Trial Court in refusing his application for summoning the Chemical Analyst, as court-witness—Nothing was in the impugned order, which could be considered to be illegal—Petition was dismissed.

2009  MLD  1230   LAHORE-HIGH-COURT-LAHORE

GUL BADSHAH VS State

S.9(c)—Appreciation of evidence—Narcotics comprising 171 kilograms of “Charas”, 70 kilograms of opium and 3 Kilograms of heroin, were recovered from secret cavities of the truck being driven by the accused, which stood established by his statement made under S.342, Cr.P.C., and by failure of the defence to cross-examine the recovery witness—All the tests conducted by the chemical examiner of the samples of recoverd narcotics were positive—Police and Excise Officials were as good witnesses as others, who had no motive, ill will or enmity with the accused to falsely implicate him in the crime—Investigating Officer could be a complainant as well as a witness at the same time, without any adverse effect on the prosecution case—However, in the present case complainant had not made the investigation himself—Prosecution witnesses were consistent and unanimous on all material aspects of the case—Accused had failed to rebut the presumption of criminal liability attached to him after the recovery of narcotics from his possession, as envisaged by S.29 of the Control of Narcotic Substances Act, 1997—Accused was transporting the aforesaid huge narcotics for sale—Conviction and sentence of death of accused were affirmed in circumstances.

2009  MLD  878   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD NADIM VS State

S.9(c)—Appreciation of evidence—Police witnesses were credible witnesses in narcotic cases, non-association of independent witnesses with recovery proceedings, therefore, would not hamper the prosecution case—Even otherwise, people from the locality always refrain from coming forward to give evidence in such cases and non-citing of public witnesses was not fatal to the case—Police Officer despite having a grudge against the accused could not have arranged a huge quantity of 90 kilograms of “Charas” to plant on the accused in order to avenge his wrath—CIA Staff was fully empowered to conduct raid anywhere in the city—Procedure adopted by the police officials regarding the recovery of samples of “Charas” was lawful and without any irregularity—Report of Chemical Examiner was positive—Accused was apprehended by the police raiding party red handed being in possession of huge quantity of “Charas”—Recovery witnesses had fully corroborated the version of the F.I.R—Conviction and sentence of accused were maintained in circumstances.

2009  MLD  387   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD FAYYAZ VS State

1. 9(c)—Obtaining the handwriting of police officials for comparison—Petitioner/accused had challenged the validity of the order whereby the Trial Court declined to obtain the handwriting of two police officials for comparison with the record prepared by said two officials pertaining to F.I.R. registered at Police Station—Counsel for the petitioner had submitted that in fact the record of the case had been fabricated by said two police officials at the Police Station; and no recovery was effected from the possession of the petitioner, but said police officials having made false statements at the trial, it was essential for the just decision of the case that specimen of their handwritings should be obtained and sent for comparison—One of said two officials had admitted that complaint on the basis of which formal F.I.R. was registered was not in his handwriting; that he had, in fact, summoned another official at the relevant time at Police Station to scribe the complaint; that formal F.I.R. had been drawn by said official and in his handwriting; and that it was written by some of his subordinates whose name he did not remember-In view of said statements of said Police Officials, it was necessary to order comparison of the record with the handwriting of those two police officials and was just and proper to allow the petitioner to further cross-examine said witnesses/officials for the purpose of confrontation with the record in the light of the statements of said officials in the Court—Order accordingly.

2009  PLD  632   LAHORE-HIGH-COURT-LAHORE

MUBARAK ALI VS State

1. 426—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Suspension of sentence, refusal of—Appeal of accused was filed in year 2008—Sentence awarded to accused was imprisonment for life—Accused was arrested red-handed with huge quantity of narcotics—Petition for suspension of sentence of accused was dismissed in circumstances.

2009  PLD  284   KARACHI-HIGH-COURT-SINDH

UMER REHMAN VS State

1. 9(b)—Appreciation of evidence—Benefit of doubt—Trial Court was influenced by the fact that no cross-examination was offered by accused and thereby the testimony of prosecution witnesses and complainant had gone unchallenged—Trial Court, however, lost sight of the fact that both the prosecution witnesses, who were Police Officers, were not examined on one and the same date, but they were examined on different dates; and that both prosecution witnesses were examined in absence of the advocate for accused, who was unrepresented at the time of recording of evidence of said prosecution witnesses—Trial Court, in such a state of affairs, was obliged to take into consideration the entire material placed before it in arriving at the conclusion, whether a fact was proved or not; because the proof of a fact would depend upon the probability of its having existed; and not upon the accuracy of the statement—Copy of alleged Roznamcha which would establish that the complainant party was actually on patrolling on that date during day time, had not been produced in evidence—Not a single person had been cited as witness or mashir despite the fact that while on patrolling the Police party had received spy information about selling of charas by accused—Explanation of the prosecution that due to heat no private person was available at the place of recovery, was apparently a lame excuse, which did not appeal to a prudent mind for the reason that the place of recovery was in the heart of city and alleged recovery was made at 1.30 P.M., which was peak hour of the business; and it was beyond imagination that no private person was available at the alleged place of recovery at that time—Contraband charas was received in Chemical Laboratory after 8 days of its recovery and report was prepared after one month and 20 days and no explanation was offered by the prosecution for such considerable delay in sending the contraband charas to the Chemical Laboratory—Such a delay was opposed to law i.e. the Control of Narcotic Substances (Government Analysts) Rules, 2001; it was also not proved that during said period of 8 days alleged contraband charas remained in safe custody—Difference existed with regard to quantity of weight of recovered charas between prosecution and report of Chemical Examiner—Duty of prosecution was to prove its case beyond any reasonable doubt and if any doubt would arise in the prosecution case, the benefit of that was to be given to accused not as matter of grace, but as a matter of right—Prosecution having failed to prove its case against accused beyond any reasonable doubt, he was acquitted extending him benefit of doubt.

2009  YLR  2435   KARACHI-HIGH-COURT-SINDH

ABDUL SATTAR VS State

1. 9(c) —Appreciation of evidence—Chemical Examiner in his report in respect of three parcels which were sent with delay of three days, had not firmly stated that the recovered property was opium and charas; he had stated that samples of recovered charas and opium examined by him were like opium and charas—Being an expert in his field, Chemical Examiner should have given a definite opinion regarding alleged recovered charas and opium—Chemical Examiner was not examined by the prosecution in support of its case—Material contradictions were in respect of weighing measures and its description—Case of prosecution seemed to be doubtful in peculiar circumstances of the case–Defence put forth by accused had been supported by defence witnesses examined in the case—Misreading and misapplication of evidence was found on the part of the Trial Court and Trial Court had failed to take all legal and material facts into consideration–Prosecution case being not free from doubt, conviction and sentence passed by the Trial Court against accused, could not be sustained—High Court, on deep reappraisal of evidence held that it was a case in which prosecution had miserably failed to bring home the guilt to accused beyond any shadow of doubt—Allowing appeal, accused was acquitted from charges framed by the Trial Court in the matter and he was directed to be released forthwith.

2009  YLR  2162   KARACHI-HIGH-COURT-SINDH

SHAHZAD HUSSAIN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 21-Bail, refusal of—In the F.I.R. though words “memo. of recovery/arrest” had not been mentioned, but all the details had been mentioned—Arrest of accused though was in violation of S.21 of Control of Narcotic Substances Act, 1997, but provisions of S.21 were directory and not mandatory in nature and departure from the same in case of heinous offences could be treated as an irregularity and not an illegality or fatal to the prosecution—Such was not a serious defect, which would vitiate the trial—Sample was taken from one packet weighing “one kilogram “—Case of at least one kilogram Charas, at that stage was prima facie proof against accused as the sample’ represented-the entire packet and the same was not found to be illegal—Prosecution witnesses when examined at the trial were not even suggested by accused that remaining property produced in the Court was not the same or that the same had been tampered with—Bail could not be granted to accused, in circumstances.

2009  YLR  2049   KARACHI-HIGH-COURT-SINDH

DODO VS State

25. 9(c)—Police Rules, 1934, Rr.25.3 & 25.4—Appreciation of evidence—Accused was not produced before the area Police Station which was 5/6 k.m. away from alleged place of recovery and instead the officials brought accused at the CIA Centre after a travel of 25 k.ms., which had shown that on no occasion accused was ever produced before the Police Station with the contraband—No investigation was ever assigned to any Police Official of the concerned Police Station which was a clear violation of the order of Supreme Court—Arrest and investigation conducted by the complainant/Police Official being a clear flouting of the order of the Supreme Court, same could not be declared legal—CIA Officials had also violated the provisions of S.166(1) & (4) of Cr.P.C. and Chapter XXI, Rr.25.3 & 25.4 of Police Rules, 1934 as prior to arrest of accused they should have informed the area Police Station, and if arrested, he should have been produced before the concerned S.H.O.—CIA had no authority to detain accused for 5 hours without registration of the F.I.R.; they should have produced him and the contraband before the area Police and that was. the duty of the concerned S.H.O. to deliver the investigation to any of his subordinates; and thereafter the CIA Official could have taken the investigation after obtaining the order from the competent Authority, which was lacking in the case—Investigation conducted by CIA Official being illegal, void and without lawful authority, impugned judgment was not sustainable in law—Impugned judgment was set aside and accused was acquitted.

2009  YLR  1987   KARACHI-HIGH-COURT-SINDH

SUHINO KHAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of–Three thousand grams of charas in 6 pieces were allegedly recovered from accused, out of which 100 grams were sent to Chemical Examiner and the report was found in positive—Prosecution was duty bound to take sample from each piece of charas, whereas only one sealed packet was sent to Chemical Examiner; and it was mentioned that the sample was taken out from each packet—Prosecution should be very careful while maintaining the record when narcotics were recovered in many pieces and sample from each piece should be sent to Chemical Examiner—When slight change in the quantum of substances could affect very seriously, the liberty of accused, prosecution should be very careful in sending the substances to Chemical Examiner—Accused having made out case for grant of bail, he was granted bail, in circumstances.

2009  YLR  1724   KARACHI-HIGH-COURT-SINDH

JAN ALAM VS State

1. 9(c)—Appreciation of evidence—Benefit of doubt—Many circumstances creating doubts are not necessary—Single circumstance which creates reasonable doubt in a prudent mind about the guilt of accused, makes him entitled to its benefit not as a matter of grace and ,concession, but as a matter of right.

2009  YLR  1724   KARACHI-HIGH-COURT-SINDH

JAN ALAM VS State

1. 9(c)—Appreciation of evidence—Despite having known during investigation the actual owner of case property and transportation of the same through the truck of co-accused, Investigating Officer did not try to reach the main culprit—Purpose of Control of Narcotic Substances Act, 1997, was to control and prevent- the spread of narcotic substance by detecting the very first source, which was disturbing the peace and tranquility of society and not to involve a person just to show the surface efficiency in detection of crime—Police was competent under the law to carry out investigation to submit correct and true facts brought in their knowledge, even after submission of challan for proper adjudication of the case—Out of 100 packets of “Charas” recovered from the truck sample was taken only from three packets—Substance sent to Chemical Examiner was found totally different from one recovered in the case—Defence of accused that he just took the lift from the actual driver of the truck who had been released by the prosecution and he had been falsely involved in the case, could not be overlooked in toto—Non-association of independent person despite the recovery having taken place at public place was itself a question mark in such circumstances—Prosecution had failed to prove its case against the accused who had spent five years of his life in jail and this period of detention would be termed as illegal confinement, which could not be returned back to him–Accused was acquitted in circumstances.

2009  YLR  1724   KARACHI-HIGH-COURT-SINDH

JAN ALAM VS State

Ss. 25 & 9(c)—Criminal Procedure Code (V of 1898), S.103—Search and arrest, mode of—Exemption of S. 103, Cr.P.C.—Effect—Exclusion of S. 103, Cr.P.C. from being applicable to cases under the Control of Narcotic Substances Act, 1997, may provide a legal technical support to the admissibility of the evidence of official witnesses, but it does not make them reliable—Legislation cannot make a man moral—Evidence of such official witnesses should always be examined keeping in view the fact that in present society having unfortunately the prevailing moral values, a subordinate official is seldom expected the tell the truth against the expressed or implied instructions of his superior.

2009  YLR  1325   KARACHI-HIGH-COURT-SINDH

MAZAR VS State

1. 9(c)—Appreciation of evidence—Statements of complainant and mashir of recovery who both were Police Officials, were contradictory to each other on some material points and said statements had not been supported or corroborated by other prosecution witness—Articles from which the charas was secured was not available in the court—Case property was sent to Chemical Analyzer after more than two months of the recovery—No explanation had been furnished for such delay in sending the case property to Chemical Analyzer—Discrepancies in the evidence and delay in sending the case property had created further doubt in the prosecution case—Defence taken by accused had been supported and corroborated by the certified true copies of the statements of the witnesses examined in the case—Case of the prosecution being highly doubtful, accused were entitled to the benefit of such doubt, which was accordingly given to them—Accused were acquitted of the charge giving them benefit of doubt.

2009  YLR  1307   KARACHI-HIGH-COURT-SINDH

ABDUL HAKEEM VS State

1. 9(b)—Appreciation of evidence—Statements of both the prosecution witnesses, showed that they had falsified each other with regard to the pieces of charas and the material in which it was sealed—Report of Chemical Analyzer was not tallying with the pieces of the charas as stated by the complainant—Said report was also not tallying with the statement of Mashir with regard to the material in which the charas was sealed—Doubt, in circumstances, had been created with regard to the preparation of sample at the place of incident and the sample received by the Chemical Analyzer—Sample received by the Chemical Analyzer appeared to be different from the sample prepared at the scene of incident; it would not represent the entire property involved in the case—Prosecution had failed to prove that the property was charas—Report of Chemical Analyzer, in circumstances of the case, was not helpful to the prosecution in any manner—Prosecution having failed to prove case against accused beyond any reasonable doubt, he was acquitted of the charge against him.

2009  YLR  1275   KARACHI-HIGH-COURT-SINDH

AGHA KHAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 32—Bail, refusal of—Bail was sought on the ground that accused was 80 years old patient, though as per National Identity Card accused was aged 57 years—In support of ailment of accused, neither any medical certificate, prescription of medicines had been filed nor it had been disclosed in file—Report of Laboratory test with regard to samples of narcotic substance sent to it, was positive—Delay of five days in sending sample to Chemical Examiner, was to be explained in evidence as tentative assessment was to be made at bail stage and no deeper appreciation was required at that stage—Even otherwise, each and every case was to be decided on its own merits—Presence of accused in a particular vehicle and recovery of huge quantity of charas from secret boxes, prima facie indicated the participation of accused in the offence—Bail application was not filed on behalf of accused on ground of hardship—Bail application, was dismissed, in circumstances.

2009  YLR  1242   KARACHI-HIGH-COURT-SINDH

ILLAHI BUX VS State

Ss.9 & 48—Appreciation of evidence—Sentence, reduction in—Special appeal—Counsel for accused did not press appeal, but had requested that the sentence awarded to accused be reduced from 14 years to the period already undergone and. the fine might also be remitted—State Counsel had raised no objection to such request—Jail roll submitted by the Authorities had shown that during his stay as under-trial prisoner and as convict prisoner, conduct of accused was found satisfactory—Since State Counsel had not controverted to the fact that accused was a first offender and had shown his remorse and penitence and as per jail roll he had served out substantive sentence of ten years—Accused deserved leniency in circumstances—Appeal was dismissed as not pressed and conviction was maintained, however, the substantive sentence awarded to accused was reduced from 14 years to ten years’ R.I. and also reduced the fine from Rs. 5,00,000 to Rs. 1,00,000.

2009  YLR  899   KARACHI-HIGH-COURT-SINDH

MUMTAZ HUSSAIN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Bail, refusal of—Huge quantity of heroin powder was recovered from the luggage of accused while he was travelling abroad—fn view of punishment provided under S.9(c) of Control of Narcotic Substances Act, 1997, case against accused fell within the prohibitory clause of S. 497, Cr. P. C., being punishable with imprisonment for not less that 14 years—Deeper appreciation of evidence at the bail stage was not warranted—Accused having been charged with the heinous offence to smuggle lethal narcotics to a foreign country, no leniency could be shown to the accused—In absence of any ground for grant of bail, bail application of accused was rejected.

2009  YLR  885   KARACHI-HIGH-COURT-SINDH

WAQAR AHMED VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of–Prosecution had collected the evidence against accused in the shape of statement of co-accused, which was inadmissible in evidence—Second piece of evidence collected by the prosecution was builty (Transport receipt) under which 10 boxes containing hardware were transported from Lahore to Karachi which were allegedly received by accused and he had executed such receipt as alleged by the prosecution–Said boxes had not been connected with the consignment secured from the place of incident containing heroin powder—Without such connection it could not be held that boxes received by accused were the same boxes from which heroin powder was secured—Such pieces of evidence required deeper appreciation which could be undertaken by the Trial Court when the required evidence would be produced before the court—Only tentative assessment was to be made from the assessment at bail stage—Accused, in circumstances, was entitled to concession of bail which was granted.

2009  YLR  819   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ASHRAF VS State

S.497:–Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of–Benefit of doubt—Accused had first been released in the case under S.169, Cr.P.C. and was robbed and deprived of his cash and valuable articles by the complainant police officer and in order to justify his arrest he had been falsely connected with the crime—Complainant police officer had made the recovery of 1040 grams of “Charas” from the accused in presence of his subordinates, but in the existence of recorded enmity between them, said recovery did not inspire confidence—By excess of 40 grams of “Charas” the offence had been aggravated to section 9(c) of the Control of Narcotic Substances Act, 1997—Accused had brought on record the mala fides against the complainant—Mashirs being subordinate to the complainant, foistation of “Charas” on accused could not be ruled out in circumstances—Recovery being doubtful, its benefit would go to accused even at bail stage—State Counsel had not opposed the bail application—Accused was admitted to bail accordingly.

2009  YLR  814   KARACHI-HIGH-COURT-SINDH

MUHAMMAD KASHIF VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(b) (c)—Bail, grant of—Further inquiry—Accused was in custody for the last more than 16 months and no witness had been examined–Said delay could not be attributed to accused—Recovery was on he border line of offence falling under Ss.9(b) and 9(c) of Control of Narcotic Substances Act, 1997; in said circumstances and facts, case of accused required further inquiry—Accused was admitted to bail, in circumstances.

2009  YLR  717   KARACHI-HIGH-COURT-SINDH

SARDAR IBRAHIM VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51—Bail, grant of—Further inquiry—Prosecution showed that three accused persons were involved in the case—Contraband Charas was recovered from the vehicle and not from the exclusive possession of accused—Arrest of accused, as per prosecution, was effected from the driver seat and on the road, whereas the news clipping of Newspaper, had shown that accused and other persons were not arrested from the place suggested by the prosecution, but were arrested from different places—Fair and expeditious trial was right of an accused, where, however, accused persons were able to show that unexplained delay was on the part of the prosecution to proceed with the case and delay in conclusion of the trial was unexplained, court could enlarge accused on bail—Accused was languishing in jail since 31-7-2006 and there was no chance of conclusion of the trial in near future—All said factors created reasonable doubt—Object of the criminal trial was to face trial and not to punish under trial prisoner—One could not be kept in custody on the basis of mere suspicion—Bar contained in section 51 of Control of Narcotic Substances Act, 1997 would be attracted only when there were reasonable grounds for believing that accused was guilty of alleged offence—High Court was competent to grant bail in appropriate cases notwithstanding the provisions of S.51 of Control of Narcotic Substances Act, 1997—No reasonable grounds were available for believing that accused was guilty of offence—Matter requiring further inquiry into guilt of accused he was admitted to bail.

2009  YLR  640   KARACHI-HIGH-COURT-SINDH

SHOUKAT ALI VS State

1. 9(c)—Appreciation of evidence—Sentence, reduction in—Counsel for accused had submitted that accused was continuously in prison for the last more than 13 years; that he would not challenge conviction of accused and requested that sentence awarded to accused be reduced—Counsel appearing on behalf of the State raised no objection stating that sentence awarded to accused be reduced to already undergone by accused—Accused, who was in custody for the last 13 years, was a first offender and he had shown his remorse and penitence—Since accused had served out substantive sentence of more than 13 years, he deserved leniency—Appeal filed by accused was dismissed as not pressed and his conviction was maintained; however, the substantive sentence awarded to accused was reduced from life imprison­ment R.I. to twelve years’ R.I. and fine was also reduced from one million to Rs. One lac—Accused would also be entitled for the benefit of S.382-B, Cr.P.C. extended to him by the Trial Court and he also would be entitled for benefit of remission, if any, as per Prison Rules.

2009  YLR  167   KARACHI-HIGH-COURT-SINDH

MUHAMMAD SHAHID VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9 & 51—Bail, grant of—Accused was behind the bars for the last about 7/8 months, but his case was still at preliminary stage as no charge had been framed against him so far—Case of accused was not likely to be concluded in the near future—Punishment provided for the alleged offence was seven years and fine, which did not fall within the prohibitory clause of S.51 of Control of Narcotic Substances Act, 1997—Case for grant of bail to accused having been made out, he was allowed bail.

2009  YLR  135   KARACHI-HIGH-COURT-SINDH

LIAQ SHAH VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)—Bail, grant of—Further inquiry—Co-­accused had been granted bail by the Special Court, whereas there was very little difference in the allegations against accused who had been granted bail and that of the accused applied for bail—Case of accused would fall on the borderline of offence under Ss.9(b) & 9(c) of Control of Narcotic Substances Act, 1997—Was yet to be seen whether the maximum punishment would be awarded to accused under the circumstances, which would need discussion and further inquiry—Evidentiary value of affidavit filed by the injured person, was yet to be determined—Case of accused being one of further inquiry, bail was allowed to him, in circumstances.

2009  YLR  123   KARACHI-HIGH-COURT-SINDH

GHAFOOR AHMED VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail, grant of—-Sixty three capsules containing 600 grams of heroin powder were recovered from the body of accused, which process would have consumed same time to recover the narcotics—However, accused had been challaned under S.9(b) of the Control of Narcotic Substances Act, 1997, which provided sentence of seven years’ R.I. and the offence did not fall within the prohibitory clause of S.497(1), Cr.P.C.—Accused was admitted to bail in circumstances.

2009  YLR  100   KARACHI-HIGH-COURT-SINDH

IMRAN ALI VS State

1. 9(b)—Absence of accused—Forfeiture of bail bond due to absence—Applicant/accused on relevant date of hearing when case was called, was absent and his bail bond was forfeited and non-bailable warrant was ordered against him as well as notice to his surety—Medical certificate annexed with application of accused had revealed that on the date of hearing the son of accused aged 3 years, was ill and due to his serious condition, he was treated in hospital and accused was attending him—Absence of accused was neither wilful nor deliberate, but it was due to unavoidable circumstances, which were beyond his control—Impugned order was set aside, accused was allowed to remain on same bail and same surety.

2009  YLR  73   KARACHI-HIGH-COURT-SINDH

Mst. HAMEEDA BEGUM alias HAMEEDEE VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Bail, grant of—Accused was facing trial without being tried for the offence entailing capital punishment—Accused had legitimate right to the effect that his case should be disposed of expeditiously—Directions were given by High Court to the Trial Court to record the evidence of some witnesses—Such exercise was to be carried out within a period of four months, but despite lapse of over two years not a single witness had been examined, which had shown the lack of interest by the prosecution to bring home the guilt to accused—Accused was admitted to bail, in circumstances.

2009  YLR  58   KARACHI-HIGH-COURT-SINDH

ATIF SHAHAB VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 13 & 14—Bail, refusal of—Previous bail application of accused had already been dismissed an merits by High Court—Accused was driving the Bus from Peshawar to Karachi from which 100 packets of ‘Charas’ weighing 100 Kilograms were recovered—Driver would be in the knowledge of the presence of the narcotics during driving the bus—Even otherwise, huge quantity of narcotics having been recovered in the case, S. 9(c) of the Control of Narcotic Substances Act, 1997, carrying a sentence of not less than imprisonment for life, was attracted and bail could not be allowed to accused—Bail was declined to accused accordingly.

2009  PLD  212   KARACHI-HIGH-COURT-SINDH

LAL MUHAMMAD alias HAJI LALOO VS State

1. 9(c)—Appreciation of evidence—Recovery of 160 kilograms of Charas—Old age of accused—Sentence—Effect—Authorities recovered 160 kilograms of Charas on the pointation of accused and Trial Court convicted the accused under S.9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to imprisonment for life—Accused sought reduction in sentence on the ground that he was old man of 71 years of age and was suffering from ailment and had been confined in jail from the date of his arrest which was a long time back—Validity—Looking to his old-age, infirmity and ailment, accused was entitled for concession in his sentence but he failed to produce any medical evidence to show that he was suffering from such a chronic disease which could not be treated inside jail and old age, infirmity and ailment were sufficient grounds under law so as to extend its benefit to accused in reduction of his sentence—Despite sympathetic consideration, in view of heavy quantity of Charas secured at the instance of accused, High Court did not find it a fit case of reduction of sentence.

2009  PLD  212   KARACHI-HIGH-COURT-SINDH

LAL MUHAMMAD alias HAJI LALOO VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Recovery of 160 kilograms of Charas—Chemical examination report–Police witnesses—Authorities recovered 160 kilograms of Charas on the pointation of accused and Trial Court convicted accused under S.9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to imprisonment for life—Plea raised by accused was that only 20 grams of Charas’ was taken into consideration by Chemical Examiner, therefore, case of accused fell under S.9(a) of Control of Narcotic Substances Act, 1997—Accused further raised the plea that no witness from public was associated in recovery proceedings—Validity—Heavy quantity of Charas secured at the instance of accused was not mandatorily required to be sent to Chemical Examiner—Only samples of contraband Charas and its positive report was sufficient to hold whole recovery as Charas—In lengthy cross-examination conducted on prosecution witnesses no material had been fished out to prove that prosecution witnesses possessed any animosity against accused to implead him falsely—Evidence of prosecution witnesses being police officials could not be excluded from consideration in view of S.25 of Control of Narcotic Substances Act, ,1997, as that provision of law was completely different in nature from provisions of 5.103, Cr.P.C.—Accused failed to point out any material contradictions in testimony of prosecution witnesses so as to extend its benefit to him—Minor or trivial contradictions in testimony of prosecution witnesses were not sufficient to reflect on their bona fides, which discrepancies were bound to occur due to lapse of considerable time—Trial Court rightly apprised evidence brought on record before it and its judgment did not suffer from any illegality, irregularity, misreading or non-reading of evidence available on record so as to interfere in it–High Court also declined to modify the sentence awarded to accused by Trial Court—Appeal was dismissed in circumstances.

2009  PCrLJ  1425   KARACHI-HIGH-COURT-SINDH

WAZIR ALI VS State

1. 561-A—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9—Quashing of proceedings—Application for—State Counsel had conceded that except for inadmissible confessional statement of co-accused made, to Police. after his arrest that applicants were also concerned in business of Charas recovered from him, no other evidence was against applicants—In absence of any evidence against the applicants, there was no probability of applicants being convicted of any offence; and no useful purpose would be served to conduct their trial—No useful purpose would be served to ask applicants to seek remedy first from the Trial Court as it had refused, even to grant bail to accused and had issued warrants against them—Proceedings against applicants/ accused persons, in circumstances, were quashed; they stood discharged.

2009  PCrLJ  1340   KARACHI-HIGH-COURT-SINDH

QUTBUDDIN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Prosecution had not clarified as to whether the sample had been taken from each piece of packet; and in the which was not even mentioned as to what was the weight of each piece had been recovered from the possession of accused; and what was the exact quantity taken from each piece—According to allegation, accused was selling the narcotics at a Dargah, but despite lapse of time waiting for the independent witnesses, no one could be found by the Police to act as Mashirs in the matter—False implication of accused in the offence alleged, could not be ruled out in circumstances—Accused having made out a case for grant of concession of bail, he was granted bail.

2009  PCrLJ  1284   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AZEEM VS State

Ss. 6, 7, 8 & 9(c)—Appreciation of evidence—Counsel for accused did not dispute the conviction of accused, but had prayed that sentence awarded to accused, could be reduced to that already undergone and the amount of fine could also be reduced—Accused was in custody for more than seven and half years inclusive the remission extended to him—Accused was a first offender and had shown his remorse and penitence as convict—Since accused had served substantive sentence of more than seven and half years including the remission, he deserved leniency–Maintaining conviction awarded to accused by the Trial Court, sentence of ten years awarded to him was reduced to one already undergone and amount of fine was also reduced from Rs.25,000 to Rs.5,000, accordingly.

2009  PCrLJ  1089   KARACHI-HIGH-COURT-SINDH

ZULQARNAIN SIKANDAR VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c)—Bail, grant of—Further inquiry—Prosecution story as narrated in the F.I.R. itself did not inspire confidence—Was difficult to conceive that a person, who informed Anti-Narcotic Force regarding presence of narcotic substances in a house and then led them to such house, would in presence of one of the members of the raiding party place Charas in the open i.e. the lawn of the house; it was all the more unbelievable that such a person, would be allowed to walk away scot-free despite the fact that armed personnel of the force were not only posted inside the house and at the very spot where the bag was placed, but the house was also encircled by them—No recovery had been made from the person or the place of accused—Co-accused, who was said to have admitted before the Investigating Officer that he along with other co-accused brought the Charas had been granted bail—Investigation in the case had been concluded and final challan had been submitted—Charas had not been recovered from the actual possession of accused, who allegedly escaped from the scene—As it was yet to be ascertained as to whether accused was actually in possession of the Charas, case against him was of further inquiry—Statement of the constable against him was to be considered by the Trial Court—Accused was entitled to the benefit of reasonable grounds and doubts and bail in the facts and circumstances of the case could not be refused to accused, merely because the offence shown in the F.I.R. was punishable with death—Accused was admitted to bail, in circumstances.

2009  PCrLJ  820   KARACHI-HIGH-COURT-SINDH

Miss BUSHRA SHAHEEN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, refusal of—Customs Authorities immediately had tested the recovered heroin on Narcotics Test Kit which had given a positive result and had also taken out three different samples of the heroin powder from the suit-cases of the accused ladies—Two real sisters travelling together had themselves produced the three bags before the Customs Authorities for examination, which would be presumed to be their joint baggage—Entire amount of heroin recovered from the accused, prima facie, was found to be heroin and no further inquiry was needed in the case—Bail was declined to accused in circumstances.

2009  PCrLJ  808   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AKRAM VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 29 & 51(1)—Bail, refusal of—Heroin weighing ten kilograms was allegedly recovered from the possession of each accused—Case of co-accused, already granted bail, was different from the present accused, whose case was of complete denial—Presumption under S.29 of the Control of Narcotic Substances Act, 1997, for having committed the offence, no doubt, was rebutable, but accused would have to dislodge the same—Discrepancies pointed out in the statements of prosecution, witnesses could not be considered in detail as deeper appreciation of evidence was not required at bail stage—Prima facie, sufficient evidence was available to connect the accused with the commission of the crime—Woman accused could not be allowed bail under the fourth proviso to S.497(1), Cr.P.C. on account of the bar contained in S.51(1) of the Control of Narcotic Substances Act, 1997, being charged with an offence punishable with death and even otherwise her case was not fit for grant of bail—Reasonable grounds existed to believe the accused being guilty fully attracting the said bar of S.51(1) of the said Act—Accused were refused bail in’ circumstances.

2009  PCrLJ  702   KARACHI-HIGH-COURT-SINDH

Mst. SHAH JEHAN BIBI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—From the factual point of view accused was not entitled for grant of bail on any count, but accused being lady with suckling child had been considered for grant of bail—Woman having suckling child, should not be detained like accused, and bail could be granted in such situation—Accused was granted bail, in circumstances.

2009  PCrLJ  695   KARACHI-HIGH-COURT-SINDH

HAKEEM JAMALI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Samples of recovered “Charas” were sent to Chemical Examiner after delay of twelve days—State Counsel had failed to account for said delay and police record was also silent about the same—Question whether the samples of “Charas” were kept in safe custody or not and who was responsible for their safe custody for a long period of twelve days, was not explained—Many authorities were available on the point of delay in sending samples to the Chemical Examiner in favour and disfavour of grant of bail, but the one beneficial to the accused had to be followed—Delay in sending the samples to Chemical Examiner had created a reasonable doubt in favour of accused even at bail stage and his case had become one of further inquiry entitling him to concession of bail—Bail was allowed to accused accordingly.

2009  PCrLJ  660   KARACHI-HIGH-COURT-SINDH

ASGHAR ALI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Seventy capsules weighing 610 grams containing heroin were allegedly recovered from the stomach of accused, but the exact weight of heroin was not given, which according to defence counsel would not be more than 300 grams—Trial Court had examined so far only one witness in the case—Accused was behind the bars for the last nine months and to detain him further in jail was not justified—Accused was allowed bail in circumstances.

2009  PCrLJ  558   KARACHI-HIGH-COURT-SINDH

ABDUR RASOOL VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Bail was sought by accused on three grounds; that the police, despite having information well in advance, had failed to associate private Mashir; that out of the total two Kilograms of Charas, only 110 grams were sent for chemical analysis and that accused could only be held responsible for 110 grams and not the entire property, as such the offence against him would be covered by S.9(b) of Control of Narcotic Substances Act, 1997, which did not attract the bar contained in S.51 of the said Act and that S.H.O. was the complainant in the case and he had himself acted as Investigating Officer, which cast serious doubt upon the veracity of investigation conducted by him—Validity—Held, S.103, Cr.P.C. was not applicable in the cases under the Control of Narcotic Substances Act, 1997 per S.25 of the said Act; that there was no illegality in sending the sample of 110 grams, as the Trial Court could send the rest of the property for chemical examination on the application of the accused; and that complainant’s acting as Investigating Officer in the cases, was also not illegal—Report of inquiry conducted by an honest officer, had indicated that some foul play was found on the part of complainant Inspector otherwise, looking to the general attitude and conduct of the local police, an officer from the police department and that too posted within the same jurisdiction was not expected to give a negative report against his colleague—Matter needed further inquiry coupled with the circumstances given in the F.I.R., which made the case doubtful—Accused having made out a case of bail same was granted to him.

2009  PCrLJ  480   KARACHI-HIGH-COURT-SINDH

SHAWAZ KHAN VS State

1. 9(c)—Appreciation of evidence—Benefit of doubt—Accused was found standing near the driver side of the pick up from which Charas was recovered—Accused could only be saddled with the liability of the offence when his possession and control over the vehicle was established by the prosecution—Prosecution had failed to establish accused’s possession and control over the vehicle, because accused was not sitting in the vehicle—By merely standing beside the vehicle, would not establish his possession and control over the vehicle—Since the Charas was found from the vehicle pertaining to medicine supplier company, Investigating Officer was duty bound, either to implicate the responsible officials of that company as co-accused in the offence or at least he should have cited them as witness in order to confirm whether accused was driving their vehicle as their employee or not—Such lapse on the part of the prosecution, did not seem to be bona fide on the part of the Investigating Officer—No doubt, the Chemical Examiner’s report was in positive and the substance sent to him was found to be Charas, but Chemical Examiner’s report, in absence of confidence inspiring ocular evidence, was not helpful for bringing guilt to accused—Recovery of Charas from the vehicle in question, could not, ipso facto, be proof of the guilt of accused, unless possession of vehicle was proved against accused through confidence inspiring evidence, which was lacking—Charas was allegedly filled in the cartons and those cartons had not been produced in the court—Excise Police had filled bags with the recovered Charas as per their own choice—Why the Excise Police did not preserve and produce the cartons in the court, was a question for which prosecution could not furnish plausible explanation; shadow of doubt had also been created for which accused was entitled to take benefit—Nothing had been brought on record by the prosecution to establish that Charas wrapped in the cartons was within the knowledge of accused—Whole proceedings of investigation being tainted with mala fides, complainant’s own interest for conducting investigation himself, was not just, fair and proper—Accused had not claimed ownership of the vehicle, so also the registration book did not bear his name—Possession of accused over vehicle containing Charas had not been proved—Service of accused with the medicine supplier company had also not been established on the record—Charge against accused, in circumstances, had not been proved beyond reasonable doubt—Conviction and sentence recorded against accused by the Trial Court, were set aside and he was acquitted of the charge.

2009  PCrLJ  403   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AYOOB VS State

1. 9(c)—Appreciation of evidence—Sentence, reduction in—Only 8 packets containing 8 Kgs. Charas were sent for chemical examination whereas no sample was taken from remaining 32 packets weighing 32 Kgs.—Case against accused being only for possession of 8 Kgs. Charas, same did not fall under the provision of S.9(c) of Control of Narcotic Substances Act, 1997—State Counsel had not controverted the legal plea taken by counsel for accused and confirmed that 8 packets containing 8 Kgs. Charas were sealed and sent for chemical examination whereas no sample was taken out from 32 packets containing 32 Kgs. Charas—Maintaining the conviction of accused, the substantive sentence awarded to him was reduced from life imprisonment R.I. to 10 years’ R.I. and the fine was also reduced from Rs.300,000 to Rs.50,000 accordingly.

2009  PCrLJ  355   KARACHI-HIGH-COURT-SINDH

IKHTIYAR VS State

1. 9(c)—Sentence, reduction in—Appeal was not pressed on merits and only reduction in sentence was prayed for—“Charas” weighing 1060 grams was recovered from possession of accused—Accused was in custody since long and had served out substantive sentence of more than two years—Accused was a first offender and had shown his remorse and penitence during his period of imprisonment after his conviction and he deserved leniency—Sentence of ten years’ R.I. awarded to accused by Trial Court was reduced to two years’ R.I. with substantial reduction in fine in circumstances.

2009  PCrLJ  315   KARACHI-HIGH-COURT-SINDH

SOHAIL alias GANG VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c)—Bail, grant of—Further inquiry—F.I.R., showed that accused was selling Charas, but no purchaser was present at the alleged time of sale of the Charas, because no statement of the purchaser seemed to have been recorded by the Investigating Officer,—Allegation contained in the F.I.R. that accused was selling Charas, seemed to be a vague and fallacious statement—Nowhere in the F.I.R., the complainant had stated that he knew accused previously—Accused had been arrested after about more than six months from the date of alleged incident—Investigating Officer was obliged to get the identification parade of accused held before Magistrate from the other witnesses who were allegedly present at the time of arrest of accused, but no identification parade had been held, which had badly reflected on the case of the prosecution—Samples had also been sent to Chemical Examiner after inordinate delay without just and sufficient explanation—Case of further inquiry having been made out accused was entitled to bail—Accused was admitted to bail, in circumstances.

2009  PCrLJ  254   KARACHI-HIGH-COURT-SINDH

IMTIAZ JAWED VS State

Ss. 7/9(c) & 37—Defreezing of Bank account–Section 37 of the Control of Narcotic Substances Act, 1997, had empowered the Trial Court to order the freezing of the assets of the accused, his relatives and associates, if reasonable grounds appeared to believe that he had committed the offence punishable under the said Act—Paramount consideration for freezing of the assets of the accused depended on the existence of reasonable grounds for believing him guilty of the offence and overwhelming grounds were present in this regard—Impugned order refusing to defreeze the Bank account of accused did not call for any interference—Revision petition was dismissed accordingly.

2009  PCrLJ  254   KARACHI-HIGH-COURT-SINDH

IMTIAZ JAWED VS State

Ss. 516-A & 439–Control of Narcotic Substances Act (XXV of 1997), Ss.7/9(c), 32, 21, 22 & 74–Custody of car on Superdari—Any vehicle used in carrying a narcotic drug was liable to confiscation, except where its owner did not know that the offence was being or was to be committed, as provided under section 32 of the Control of Narcotic Substances Act, 1997, and Ss.21 & 22 thereof had authorized seizure of such vehicle—Proviso to S.74 of the said Act had barred the giving of a vehicle used in transportation of a narcotic drug to the accused or any of his associates or relatives or any private individual, till the conclusion of the case—Presently, material available on record had overwhelmingly showed involvement of accused who was caught red handed in the commission of the offence, while transporting huge quantity of heroin in his car and he could not be said to have no knowledge about the car being used in the transportation of heroin—Order of Trial Court refusing to give custody of the car to the accused was upheld being unexceptionable—Revision petition had no merits and was dismissed accordingly.

2009  PCrLJ  232   KARACHI-HIGH-COURT-SINDH

COLLECTOR OF CUSTOMS (PREVENTIVE), GOVERNMENT OF PAKISTAN, CUSTOM HOUSE, KARACHI VS SAJJAD MUHAMMAD JAFFER

Ss. 6, 9, 34, 35 & 36—Criminal Procedure Code (V of 1898), Ss.417 & 265-K—Appeal against acquittal—Special Court allowing application of accused persons filed under S.265-K, Cr.P.C. having acquitted them, Authority had filed appeal against said acquittal—Consignment in question was sent to Government Laboratory for examination and report of the laboratory was in negative—Consignment was then sent to Research Institute of Chemistry, which was not a Notified Laboratory within the meaning of S.34 of Control of Narcotic Substances Act, 1997—Validity—Government Laboratory had already opined that consignment did not contain any narcotic substance—Second Laboratory was not a notified laboratory and its Research Officer who gave the report, had not been notified as an official to test the material of narcotic substances under Control of Narcotic Substances Act, 1997—Laboratory and the officer who gave the report did not come within the ambit of sections 34 to 36 of Control of Narcotic Substances Act, 1997—Such report, in circumstances, did not fulfil the requirements of law—No illegality or irregularity being in order of acquittal of accused, same did not require any interference.

2009  PCrLJ  112   KARACHI-HIGH-COURT-SINDH

UMERTIAZ KHAN VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Charas, in the present case was not concealed in any cavity of the bus, but it was in a bag which was carried and owned by accused persons—By virtue of S.25 of Control of Narcotic Substances Act, 1997, S.103, Cr.P.C. was not applicable in narcotic cases registered under the said Act—Even otherwise the law-enforcing agencies had to keep certain information secret till the last hours relating to the recovery and conducting raid at a particular place; and if such precautionary measures were not adopted and secret information about concealing or running business of narcotics etc. was allowed to spread out, there would be a raid, but without success as in the meanwhile accused persons would manage to shift the drugs to some other place—Generally the residents of locality would hesitate to become witness of recovery memo due to which Investigating Officer was left with no option, but to pick-up a witness from the police—Non-compliance of S.103, Cr.P.C. could not be considered a strong ground for holding that the trial of accused was bad in the eyes of law—In the present case 200 grams of Charas from each slab was, separated as sample and sealed separately while remaining 4800 grams Charas was sealed separately—No iota of doubt was on record that the entire 6 slabs of the seized material was Charas—Counsel for accused had not been able to satisfy the court that a delay was occasioned in sending the sample to the Chemical Examiner; neither any enmity had been shown between accused persons and the complainant—Burden of proof of allegation made by prosecution would rest on it and prosecution had to prove beyond reasonable doubt every element of the offence with which accused was charged; which had sufficiently been discharged by prosecution in the present case—Appeal was dismissed in circumstances.

2009  PCrLJ  102   KARACHI-HIGH-COURT-SINDH

AWAL KHAN VS State

2. 497–Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 21—Bail, grant of—Accused being already in custody in some other case, led to the recovery of one hand bag containing 2.5 Kgs. of `Charas’ in big and small pieces—F.I.R. and the Mashirnama did not show that the case property and the sample taken from the same were weighed and sealed at the spot—Even the place of recovery was mentioned in the F.I.R.—Despite information in advance, no private person was associated as Mashir with recovery proceedings and S.21 of the Control of Narcotic Substances Act, 1997, had been violated—Sample of ten grams had been taken from the small piece of `Charas’ weighing 500 grams and case against accused, therefore, certainly did not fall within the prohibitory clause of S.497(1), Cr.P.C.—Accused was admitted to bail in circumstances.

2009  PLD  191   KARACHI-HIGH-COURT-SINDH

NAZEER AHMED VS State

1. 9(c)—Criminal Procedure Code (V of 1898), Ss.103 & 161—Appreciation of evidence—Recovery witness—Non recording of statement under S.161, Cr.P.C,—Cross-examining the witness on next date of hearing—Effect—Recovery witness was required to be examined on the same day so that one might not be able to know answers given by others in cross-examination—In absence of statement under S.161, Cr.P.C. of recovery witness and recording of his evidence much later after recording complainant’s evidence, accused was deprived to some extent, of his right of effectively cross-examining him—No weight could be given to evidence of such witness particularly when he was subordinate of complainant.

2009  PLD  191   KARACHI-HIGH-COURT-SINDH

NAZEER AHMED VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Benefit of doubt—Police witnesses—Complainant as investigating officer—At the time of recovery from accused, investigating officer did not associate private persons as recovery witnesses and only relied upon his subordinates and furthermore he himself registered the complaint and investigated the case—Validity—Investigating officer of police or such other force, under S.25 of Control of Narcotic Substances Act, 1997, was not authorized to exclude independent witnesses nor it did away with principle of producing the best of available evidence-While keeping provisions of S.103, Cr.P.C., which were salutary intact for searches in respect of all other things, the legislature considered it expedient to do away with requirement of calling upon respectable persons to attend and witness search in respect of narcotics—Provisions of S.25 of Control of Narcotic Substances Act, 1997, were a departure from general law of land and appeared to be outcome of an expediency so as to give a free hand to police and other forces while dealing with cases involving narcotics—By excluding applicability of S.103, Cr.P.C. in narcotic cases, legislature had not conferred any additional or extra sanctity upon officers of police or such other forces—Seizing officer excluded independent persons to act as witnesses of arrest and recovery and chose two of his subordinates to act as attesting witnesses, who too did not support prosecution case—Seizing officer himself acted as investigating officer and Trial Court finding him innocent acquitted one of the two persons sent for trial—High Court declined to maintain conviction and sentence awarded to accused by Trial Court, as accused was entitled to benefit of doubt—Appeal was allowed in circumstances.

2009  MLD  1216   KARACHI-HIGH-COURT-SINDH

SHAHID HUSSAIN VS State

S.9(c)—Appreciation of evidence—Accused did not dispute his conviction and did not press his appeal to that extent and had submitted that sentence awarded to him could be reduced to that already undergone; and the fine could also be remitted as he was unable to pay the same—S.S.P. appearing on behalf of State conceded that the sentence awarded to accused could be reduced to already undergone and fine could also be remitted—Accused remained in jail for 8 months four days; he was stated to be a first offender and he was a young man aged about 21 years—Accused had shown his remorse and penitence as convict, deserved leniency—Maintaining conviction of accused, his sentence was reduced from one year to that he’ had already undergone and his fine was also remitted and he was released.

2009  MLD  1187   KARACHI-HIGH-COURT-SINDH

GHULAM RASOOL VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, refusal of—Bail application had been repeated almost on the same grounds which were taken by the counsel for accused in the earlier bail application which was not pressed by him—Same grounds, in circumstances, could not be considered in subsequent bail application—Delay in trial was on the part of counsel appearing for accused and not on the Trial Court—Complainant/Seizing Officer, who had been examined by the Trial Court had fully supported prosecution case—Despite lengthy cross-examination, his evidence had not been shaken—Bail application having no merits, was dismissed.

2009  MLD  1151   KARACHI-HIGH-COURT-SINDH

ABDUL WAHID VS State

S.497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9—Bail, grant of—Further inquiry—Out of 1500 grams of charas allegedly recovered from accused in the shape of pieces, only 200 grams were taken out of the entire recovered material for the purpose of chemical analysis; however, it was not mentioned whether the sample was taken from each piece or only from one of the pieces—No conclusive finding, in circumstances, could be recorded that all the pieces were of contraband narcotics and proper and final finding was yet to be recorded at the trial—Number of pieces had not been mentioned either in the F.I.R. or in the mashirnama—Sample was sent to chemical laboratory, with delay of nine days which had created doubt in the case of prosecution—Since out of the entire contraband allegedly recovered from accused only 200 grams were sealed separately for sending it to Chemical Analyzer, case against accused at the most would fall under S.9(b) of Control of Narcotic Substances Act, 1997, which carried punishment for 7 years—Case of accused fell within the purview of subsection (2) of S.497, Cr.P.C.—Accused was granted bail, in circumstances.

2009  MLD  1059   KARACHI-HIGH-COURT-SINDH

MUHAMMAD SALEEM KHAN VS State

Ss.497 & 561-A—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c)- Application for grant of bail—Conversion of bail application into application under S.561-A, Cr.P.C.—Prosecution case was that after a secret information Anti-Narcotic force apprehended main accused, who was said to have been standing with accused and other co-accused in the departure lounge of the airport—No connection had been shown,. against accused with the main accused or co-accused and being an employee of Civil Aviation Authority, he was standing with them—Question regarding the clearing of the suit case from the customs did not arise as the main accused was leaving the country and had to deposit the suitcase at the counter of the concerned airline only; requiring no customs clearance—No prima facie, case, in circumstances, was made out against accused to connect him with the case—Prosecution had failed to cite any witness to show that accused had conscious knowledge that main accused was in possession of the contraband in his suitcase or accused tried to facilitate him in any manner—Bail application, in circumstances, was converted into application under S.561-A, Cr.P.C. as in the case, the proceedings against accused would be futile as there was no likelihood of conviction of accused on the basis of material available with the prosecution—Proceedings pending against accused in the case, were quashed and accused was ordered to be released from jail.

2009  MLD  856   KARACHI-HIGH-COURT-SINDH

GHULAM ALI VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(b)(c)—Bail, grant of—Further inquiry—Though there was alleged recovery of 1 Kg and 90 grams of Charas, but it had not been mentioned as to what was position of packets/parcels or pieces when those were recovered nor it was mentioned in F.1. R. that any piece was taken from it for sending it to the Chemical Examiner—Version of prosecution, that entire property was sealed, its identity as Charas, in circumstances was very much doubtful—State counsel had also noted said serious defects on the part of prosecution and was unable to point out as Jo how the substance was sent to the Chemical Examiner—-Factual position in respect to detaching the part of the substance for Chemical Examination was missing—F.I.R. had been lodged by A.S.-I. and not the S.I.P. as per requirement of law—Case of accused was on the border line of Ss.9(b) & 9(c) of Control of Narcotic Substances Act, 1997 as only 1 Kg. and 90 grams had been recovered—In view of the fact that no effort had been made towards ascertainment as to whether recovered substance was Charas or not, case of accused having become of further inquiry, he was admitted to bail.

2009  MLD  773   KARACHI-HIGH-COURT-SINDH

EJAZ ALI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.8 & 9—Qanun-e-Shahadat (10 of 1984), Art.38—Bail, grant of—Allegation against accused was that he was Deputy Assistant Director in the Airport Security Force and was on duty at the airport on relevant day and was required to help the passengers in the clearance of their goods which he had failed to do—Investigating Agency could not collect any evidence, except confessional statements of co-accused, who allegedly stated before the Investigating Officer that accused was requested by them to help accused persons in the clearance of their goods—Special Prosecutor had conceded that except for the confessional statements of co-accused before the Investigating Officer, no evidence was available against accused—Article 38 of Qanun-e-Shahadat, 1984 provided that confessional statement of an accused before an Investigating Officer, was inadmissible in evidence and same could not be used even against its maker not to talk of any other person—Reasonable grounds, in circumstances, were not available to believe that accused was guilty of offence—Case being fit for the grant of bail to accused was directed to’ be released on bail.

2009  MLD  667   KARACHI-HIGH-COURT-SINDH

SHAFIQUR REHMAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9—Bail, refusal of–6.25 Kgs of charas Garda was alleged to have been recovered from accused; it would not appeal to mind that such a huge quantity of narcotics could be foisted against accused persons by the Police without previous enmity between the Police, witnesses and accused for false implication–Witnesses were yet to be examined by the prosecution whose presence was shown at the time of recovery—Delay, if any, in sending the narcotics for chemical examination, would not, in any way, prejudice the case of accused persons, as neither any mala fide act had been alleged against them nor same could be inferred—-Delay per se should not prejudice case of accused persons—Considering that huge quantity of charas had been recovered from accused and the prosecution had yet to produce the evidence, no case of bail was made out.

2009  MLD  151   KARACHI-HIGH-COURT-SINDH

ABDUL WAHEED VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Out. of 5 kilograms of Charas recovered only 10 grams were sent for analysis—Only one Pati/rod of alleged Charas of 10 grams was separately sent for chemical analysis report—Effect—Such report would be conclusive only to the extent of 10 grams of Charas—Question whether entire recovered substance was covered by the definition of “narcotic” would be properly determined at the stage of trial; however, at bail stage, as a result of tentative assessment, prima facie accused was responsible for 10 grams, which were separated and sent for the chemical analyzer report and no expert opinion was available regarding remaining quantity of Charas—Bail was granted to accused in circumstances.

2009  MLD  133   KARACHI-HIGH-COURT-SINDH

DILDAR ALI VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c), 25 & 51—Police Order (22 of 2002), Art. 18(4)—Bail, grant of—Further inquiry—Chemical Analyzer’s report had revealed that net weight of Charas, which was 130 grams was received by his office after more than two months of alleged incident—Presumption could be taken that sample was tampered with some mala fide intention—No private person from the locality was associated as Mashir in the case—Provisions of S.103, Cr.P.C. though would not be applicable in view of S.25 of Control of Narcotic Substances Act, 1997, but each case was to be seen on its own merits, nature and circumstances—Inspector himself registered the case and investigated same—Such act of Inspector was a violation of Article 18(4) of the Police Order, 2002—Concession of bail was extended to accused as his case was that of further inquiry.

2009  MLD  133   KARACHI-HIGH-COURT-SINDH

DILDAR ALI VS State

1. 9—Offence under S.9 of Control of Narcotic Substances Act, 1997, though would adversely affect the society, but in the present case, it was yet to be proved that accused was involved in adversely affecting the society—Even if accused was charged with indulging in activities, which were not approved by the society, the society which claimed to be looking after the law and order situation and as custodian of law should follow the law in toto, as no compensation was provided in the judicial system for accused detained, whether for a long or short time and ultimately acquitted.

2009  MLD  115   KARACHI-HIGH-COURT-SINDH

BAZ MUHAMMAD VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 12, 13, 14, 15, 25 & 51—Bail, refusal of—Name of accused was mentioned in the F.I.R. with specific role attributed to him—Accused was the person who booked the consignment containing carpets in which more than 5 Kilograms of heroin powder was concealed and recovered by Anti-Narcotics Force—Accused had conscious knowledge of such concealment of huge quantity of heroin powder in the said carpets—Samples of heroin powder were rightly drawn—Narcotics Police had unearthed a racket involving in heroin smuggling and recovered huge quantity of heroin powder duly concealed in carpets—Case against all accused persons attracted the provisions of Ss.6, 7 & 8 of Control of Narcotic Substances Act, 1997, punishable under S.9(c) of said Act for which the punishment provided was death, imprisonment for life or 14 years’ R.I.—Contention of counsel for accused that provisions of S.103, Cr.P.C. had been violated, had no force, in view of the fact that in narcotics case, same was excluded under the provisions of S.25 of Control of Narcotic Substances Act, 1997—Accused was not entitled to the concession of bail—Bail application was dismissed—Bail granted to co-accused was cancelled.

2009  YLR  598   ISLAMABAD

ISMAIL MICHAEL VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9(c), 14 & 15—Bail, refusal of—Narcotics was recovered from the shoes, which were purchased from a company—Owner along with manager of said company had identified accused on seeing his photograph, being the person, who purchased shoes from them—Deeper appreciation of evidence was not allowed at bail stage and any tentative assessment of material collected by the prosecution during investigation was to be made—Prima facie sufficient material was available on record to believe involvement of accused in the case, wherein offence was punishable with death or life imprisonment and fell within the ambit of prohibitory clause of S.497, Cr. P. C. —Challan had already been submitted in the Trial Court, where trial was likely to commence soon—Bail was declined in circumstances.

2009  YLR  565   ISLAMABAD

KAMRAN MASIH VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail, grant of–Meagre quantity of narcotic i.e. 610 grams Charas was allegedly recovered from accused—Accused was behind the bars since 16-2-2008 and was no more required for the purpose of further investigation—Even challan had not yet been submitted in the court—Accused was admitted to bail, in circumstances.

2009  PCrLJ  475   ISLAMABAD

Mst. SHAHEEN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Accused, a lady, was lodged in jail along with her two minor daughters aged 4 and 6 years, who had done no crime—None was available behind in the family to look after the minor daughters in a congenial atmosphere—Stay in jail and travel of the minor girls on each date of hearing to the Court with their mother, witnessing and coming across anti-social elements, was bound to tarnish their innocent mind and such bad memories would remain chasing them in their whole life—Court had to see future of the minor girls and save them from unfortunate miseries brought to them by their accused mother—“Charas” weighing 1750 grams was, though, recovered from the accused and chemical report was in positive, yet accused was admitted to bail mainly for the betterment of the minors, at the same time keeping in mind that she might have been duped into this business by some one for money consideration—Accused had no previous criminal record and perhaps she was a carrier—Bail petition was allowed in circumstances.

2008  SCMR  865   SUPREME-COURT

GUL RAEEF KHAN VS State

1. 9(c)—Constitution of Pakistan (1973), Art.185 (3)—Reappraisal of evidence—Quantum of sentence, reduction of—First offender—Accused was convicted and sentenced to 14 years imprisonment—Accused sought reduction in sentence on the ground that he was first’ offender and only bread earning person of his family and was also a young man—Counsel for the State had no objection if the quantum of sentence would be reduced—Effect—Prosecution had successfully established charge against the accused by producing overwhelming incriminating evidence—Supreme Court keeping in view the request made by the accused and also considering the concession made by the State counsel, maintained the conviction but reduced the sentence to 7 years imprisonment—Petition was disposed of accordingly.

2008  SCMR  825   SUPREME-COURT

SURRAYA BIBI VS State

Ss. 6/9(c)—Criminal Procedure Code (V of 1898), S.103—Constitution of Pakistan (1973), Art.185(3)—Reappraisal of evidence—Recovery of 6 Kgs. Charas—Police officials as prosecution witnesses—Humanitarian grounds—Accused was convicted and sentenced to 10 years imprisonment by Trial Court but High Court keeping in view that the accused was a woman, reduced her sentence to 5 years imprisonment—Plea raised by the accused was that the prosecution did not produce any independent witness and only police officials were produced—Further plea raised by the accused was that she was a lady having five children and was on the family way—Validity—Police witnesses were as good as civilian witnesses unless it was established on record that police witness, who appeared against the accused, had personal motive/mala fides to involve him/her in the commission of offence—Accused failed to point out enmity with police, therefore, no case was made out—Supreme Court observed that in cases pertaining to offences of narcotics, the drug peddlers, to achieve their nefarious objects, had adopted obnoxious device by engaging womenfolk and children and through them crimes were being committed and ultimately mercy was sought against such accused on humanitarian grounds—Supreme Court directed that to curb such menace, Courts were required to award adequate punishment instead of showing sympathy on the ground of accused being woman or child, otherwise the actual accused involved in such heinous crime, which was against the society would be encouraged and carriers would also be freely available to promote the crime with the hope that after spending small period in the prison, they would be set at liberty despite of committing heinous crime of drug trafficking—Supreme Court declined to interfere with the sentence of 5 years imprisonment awarded by High Court—Leave to appeal was refused.

2008  SCMR  815   SUPREME-COURT

JALAL KHAN VS State

1. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Proviso to S.9 of the Control of Narcotic Substances Act, 1997, was not attracted in the case which provided for the sentence of imprisonment for life as the minimum one, where the quantity of narcotics exceeded ten kilograms—Clause (c) of S.9 of the said Act clearly postulated that in an appropriate case the sentence of death or imprisonment for life or imprisonment for a term extended to fourteen years could be legally awarded, where quantity of narcotics exceeded one kilogram—Trial Court in the present case had exercised- its discretion properly in awarding the sentence of imprisonment for life in view of recovery of nine kilograms heroin—Supreme Court ordinarily did not interfere with the legal sentence awarded by the Court of competent jurisdiction—Impugned judgment did not suffer from any error of law or fact—Leave to appeal was refused to accused in circumstances.

2008  SCMR  742   SUPREME-COURT

MUHAMMAD MUSHTAQ VS State

1. 9(c)—Evidence of police officials—Value—Police officials are also competent witnesses and their testimony cannot be discarded merely for the reason that they were employees of the police force.

2008  SCMR  742   SUPREME-COURT

MUHAMMAD MUSHTAQ VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S.103—Constitution of Pakistan (1973), Art. 185 (3)—Reappraisal of evidence—Recovery of narcotics—Non-compliance of provisions of S.103 Cr.P.C.—Failure to produce recovered narcotics before Trial Court—Raising of new plea—Competency—Charas weighing 28 Kgs and opium weighing 12 Kgs were recovered and taken into possession from the car in which accused persons were travelling—Trial Court convicted the accused under S.9(c) of Control of Narcotic Substances Act, 1997 and imposed imprisonment for life, which sentence was maintained by High Court—Plea raised by accused persons was that recovered narcotic was not produced before Trial Court and provisions of S.103 Cr.P.C. were not complied with during recovery—Validity—Accused did not challenge nature of recovery substance being Charas and Opium before Trial Court or High Court, therefore, they could not turn around and say that the recovered material which was not produced at the time of trial of the case in court was other than narcotics—Prosecution witnesses were not even suggested by accused to produce remaining case property in court—Accused had neither objected nor prayed before Trial Court that entire case property should be sent to chemical examiner for his report nor they challenged that it was not the narcotic substance, thus such objection could not be raised before Supreme Court—Application of S.103 Cr.P.C. to offence under Control of Narcotic Substances Ordinance, 1997 was excluded by S.25 of the said Act—Evidence of prosecution witnesses was straight, natural and reliable which was not shaken in any way by defence—No ill will or animosity against prosecution witnesses/police employees before occurrence had been pointed out or existed prior to the occurrence—Accused failed to point out any error of law or misreading of evidence in the judgment passed by High Court which could result into miscarriage of justice—Supreme Court declined to interfere with the judgment passed by High Court—Leave to appeal was refused.

2008  SCMR  660   SUPREME-COURT

KHALID MEHMOOD BUTT VS State

S.426—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Suspension of sentence—Delay in deciding of appeal—Conflicting reports of Chemical Examiners—Accused were sentenced under S.9 (c) of Control of Narcotic Substances Act, 1997, by Trial Court and were sentenced to 14 years of imprisonment—Plea raised by accused for suspension of sentence was that they were in judicial custody since 21-3-2001 and there was no likelihood of their appeal being heard in near future—Accused further raised the plea that there were conflicting reports about the material recovered from them—Effect—Material sprinkled on the paper recovered was only 2% of the paper in case of brown with mild coating and 6 % in case of brown with white coating which if calculated would come to 5.6 and 16.8 grams only, which was quite a small amount—Report furnished by Pakistan Council of Scientific and Industrial Research revealed that, recovered material including coating material did not contain “heroin” and there were two conflicting reports—Supreme Court, in circumstances, converted petition for leave to appeal into appeal and suspended sentences awarded to accused—Appeal was allowed.

2008  SCMR  649   SUPREME-COURT

AALA MUHAMMAD VS State

1. 9(c)-Constitution of Pakistan (1973), Art.185(3)—Reappraisal of evidence—Recovery of 18-1/2 kilograms of Charas—Evidence of police witnesses—Value—Trial Court convicted and awarded sentence of imprisonment for life to accused, which was maintained by High Court—Plea raised by accused was that no independent witnesses were produced by prosecution to prove recovery and they had no knowledge of presence of Charas in vehicle—Validity—Case was that of Nakabandi/checking and prosecution witnesses were members of checking party, thus their presence at the place of recovery was natural—Prosecution witnesses present at the place of recovery of Charas from vehicle under the control/being driven by accused were police employees who were competent witnesses like any other independent witness—Evidence of police witnesses could not be discarded merely for the reason that they were police employees—Accused could not explain their travelling in car nor their destination in their statement under S.342 Cr.P.C.—Use of car in commission of offence was not denied but as to where accused were going was unexplained and it remained under mystery—Prosecution was successful to establish guilt of accused to the hilt by producing their witnesses—Accused failed to point out any error or illegality, misreading or non-reading of evidence in the judgment of High Court–Petition was dismissed.

2008  SCMR  380   SUPREME-COURT

QAIM SHAH VS State

1. 9(c)—Appreciation of evidence—Sentence, reduction in—Recovery of 13 kilograms and 600 grams of Charas and one kilogram opium from male accused—Recovery of 9 kilograms and 600 grams Charas from female accused from different packets—Both accused not related to each other were travelling together in a bus—Prosecution witnesses had no enmity or grudge against accused to involve them falsely—Prosecution witnesses were consistent and confidence-inspiring regarding time, place of occurrence and recovery of narcotics—Recovery of such huge quantity of narcotics from individual accused had been effected honestly and fairly—Conviction of both accused was upheld, while sentence of life imprisonment also awarded to female accused was reduced to 10 years’ R.I. for recovery from her being less than 10 kilograms.

2008  PLD  376   SUPREME-COURT

ARSHAD MAHMOOD VS State

Ss. 9(c) & 25—Recovery of contraband from premises in absence of accused and without search warrant—Validity—Notwithstanding special provision of S.25 of Control of Narcotic Substances Act 1997, prosecution would be under heavy burden to prove possession of narcotics by accused through direct evidence—No one could be subjected to rigour of penal laws merely on basis of presumption without fulfilling essential requirement of law and command of the Constitution.

2008  PLD  376   SUPREME-COURT

ARSHAD MAHMOOD VS State

Ss. 9(c) 20, 21 & 25—Criminal Procedure Code (V of 1898), S.103—Constitution of Pakistan (1973), Art. 14—Reappraisal of evidence-Conviction and sentence awarded to accused for recovery of Charas lying in courtyard of house in his absence without search warrant—Validity—Not proved on record that such house was in exclusive possession of accused—Co-accused, who was arrested while present in courtyard, had been acquitted from the charge—Such recovery, in absence of accused, would not give rise to a legitimate presumption of his possession and guilt—Notwithstanding special provisions of S. 25 of Control of Narcotic Substances Act 1997, prosecution was under heavy burden to prove possession of narcotics by accused through direct evidence—No one could be subjected to rigour of penal law nearly on basis of presumption without fulfilling essential requirement of law and command of the Constitution—Conviction and sentence awarded to accused was set aside in circumstances.

2008  PLD  107   SUPREME-COURT

IQBAL KHAN VS State

Ss. 9(c) & 19—Penal Code (XLV of 1860), S.75—Criminal Procedure Code (V of 1898), S.511—Constitution of Pakistan (1973), Art.185(3)—Court while convicting and sentencing the accused under S.75, P.P.C. was obliged to set out in its judgment the particulars of each previous conviction relied upon for awarding sentence—Prosecution, in the present case, had failed to prove that accused was a previous convict of an offence falling within the provisions of Chapters XII and XVII, P.P.C., and as such he could not be convicted under S.75, P.P.C.—Mode to prove previous convictions as required under S.511, Cr.P.C. also had not been applied property; whereunder it was mandatory to produce a certificate signed by the officer in charge of the jail in which the punishment or any part thereof was inflicted or to produce the warrant of commitment under which the punishment was suffered—For violation of the said mode, conviction and sentence of accused under S.75, P.P.C. was not sustainable in law and was set aside accordingly—Prosecution having failed to produce any cogent evidence regarding attainment of assets through trafficking in narcotic substances, sentence of forfeiture of assets of accused under S.19 of the Control of Narcotic Substances Act, 1997, was also set aside—Conviction and sentence of accused under S.9(c) of the said Act having not been challenged was maintained—Petition for leave to appeal after having been converted into appeal was partly allowed in circumstances.

2008  SCMR  1616   SUPREME-COURT

MUHAMMAD KHAN VS State

1. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Appraisal of evidence—Sentence, reduction in—Recovery witnesses were independent and disinterested witnesses and they had unanimously supported the prosecution version regarding the raid conducted at the hotel of the accused and recovery of “Charas” from his possession at the relevant time—Said witnesses were as good and respectable witnesses as other public witnesses and their statements could not be discarded merely because they were police employees—Objection regarding non-compliance of provisions of S.103, Cr.P.C. was misconceived, as by virtue of S.25 of the Control of Narcotic Substances Act, 1997, non-citing of a public witness was not fatal to the prosecution case, because S.103, Cr.P.C. had been specifically excluded from its application in cases of narcotics—Contention that accused was liable to the extent of only ten grams “Charas” sent to the Chemical Examiner for analysis did not carry weight—Law did not require that entire contraband should be sent for analysis—During the trial, accused did not move the Trial Court for getting the remaining quantity of narcotic examined by Chemical Examiner, nor the recovery witnesses were even suggested that the remaining bulk was not the “Charas”—Chemical Examiner’s report had corroborated the prosecution evidence that the material recovered from the accused was “Charas”—Mere assertion of accused that he had been falsely roped in the case, without a positive attempt on his part to substantiate the same, was of no consequence and was an afterthought—Conviction of accused, thus, was maintained—Accused had undergone a major portion of his substantive sentence and having regard to the facts and circumstances of the case his sentence of seven years’ R.I. was reduced to four years’ R.I. to meet the ends of justice.

2008  SCMR  1616   SUPREME-COURT

MUHAMMAD KHAN VS State

1. 9(c)—Evidence—Police witnesses-Credibility-Police witnesses are as good and respectable as other public witnesses and their statements cannot be discarded merely for the reason that they were the police employees.

2008  SCMR  1616   SUPREME-COURT

MUHAMMAD KHAN VS State

Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S.103—Non­compliance of S.103, Cr.P.C.—Effect–‘Non-citing of a public witness is not fatal to prosecution case as S.25 of the Control of Narcotic Substances Act, 1997, has specifically excluded S.103, Cr.P.C. from its application, in cases of narcotics.

2008  SCMR  1601   SUPREME-COURT

MUHAMMAD IQBAL alias BALI VS State

1. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Reappraisal of evidence—Sentence, reduction in—Petitioner contended that he would not argue the case on merits and would request for modification in the sentence, already undergone by him—Petitioner was in jail since his arrest on 28-3-2005–Meagre quantity of `Charas’ weighing 1100 grams had been recovered from the bag carried by the petitioner and thrown in the street—Petitioner had already served out a major portion of his substantive sentence, extending over 3 years—Petition for leave to appeal was converted into appeal and partly allowed—Sentence awarded to petitioner was reduced from 7 years’ R.I. to 4 years’ R.I. to meet the ends of justice—Sentence of fine, however would remain intact.

2008  SCMR  1533   SUPREME-COURT

HASHMATULLAH VS State

1. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Contentions were that the samples of 1 Kg. each of the contraband material separated for chemical analysis from each bag were not sent to the Laboratory for ‘examination and that the report of the Chemical examiner was neither on the prescribed pro forma of Excise Muharrer Form nor signed by the Chemical Examiner, rather it had been prepared on a Form of Excise Manual in the Excise Office and was signed by the Excise Inspector—Leave to appeal was granted to accused, inter alia, to consider the above aspect of the matter for safe administration of criminal justice.

2008  SCMR  1295   SUPREME-COURT

ZAHEER-UD-DIN alias JEER VS State

1. 426—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Constitution of Pakistan (1973), Art.185(3)—Suspension of sentence, refusal of—Trial Court, after regular trial observed that prosecution had proved its case beyond reasonable doubt—Deeper appreciation of evidence was not proper at that stage—Even otherwise huge quantity of Charas (12 Kgs. and 600 grams) and heroin (3 Kgs and 450 grams) was recovered from the petitioner—High Court, in circumstances had rightly rejected application of petitioner for suspension of sentence—In the absence of any illegality or infirmity in the order of the High Court, petition for leave to appeal was dismissed.

2008  SCMR  1254   SUPREME-COURT

ZAFAR VS State

1. 9(c)—Reappraisal of evidence—Recovery of 11 kilograms of opium—Complainant as Investigating Officer—No public witness—During search, 11 kilograms of opium was recovered from accused and he was convicted and sentenced by Trial Court for imprisonment for life, which was maintained by High Court—Plea raised by accused was that complainant himself was Investigating Officer and all prosecution witnesses were officials of Anti-Narcotic Force—Validity—Police Officer was not prohibited under the law to be a complainant, if he was a witness of an offence—Such officer could also be an Investigating Officer, so long as it did not prejudice accused person—Though Investigating Officer and other prosecution witnesses were employees of Anti-Narcotic Force, they had no animosity or rancor against accused to plant such a huge quantity of narcotic material upon him—Defence did not produce any such evidence to establish animosity qua prosecution witnesses—All prosecution witnesses deposed in line to support prosecution case—Witness had passed the test of lengthy cross-examination but defence failed to extract any material contradiction fatal to prosecution case—Prosecution had been successful to bring home the guilt of accused to the hilt by placing ocular account, recovery of narcotic material and Chemical Examiner report—Accused failed to point out any error of law in the judgment and the same was unexceptionable—Appeal was dismissed.

2008  SCMR  1254   SUPREME-COURT

ZAFAR VS State

1. 9(c)—Evidence of police officials—Competence—Police employees are competent witnesses like any other independent witness and their testimony cannot be discarded merely on the ground that they are police employees.

2008  SCMR  1219   SUPREME-COURT

AFSAR KHAN VS State

1. 9(c)—Constitution of Pakistan (1973), Art.185(3)—No animosity of the prosecution was shown to exist for involving the accused falsely in a serious case of narcotics—Recovery of huge quantity of “Charas” was not denied by the accused—Report of Chemical Examiner was positive—High Court had given sound reasons for distinguishing the case of co-accused for acquitting her of the charge—Courts below had properly appraised the evidence in coming to a definite conclusion of the guilt of accused to which no exception could be taken—Leave to appeal was refused to accused accordingly.

2008  SCMR  1111   SUPREME-COURT

SAKINA BIBI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Constitution of Pakistan (1973) Art.185(3)—Bail, grant of—Case of further inquiry—Female accused—Search warrants, absence of—Accused was arrested from house during raid and 13 kilograms of Charas was recovered—Through plea of violating mandatory provisions relating to search warrants was raised on behalf of accused before High Court but High Court did not dilate upon the same—Validity—Prosecution had to prove the conscious and exclusive possession of accused and the quantity of contraband material recovered therefrom—Case of accused called for further inquiry thus entitling her to concession of bail—Supreme Court converted petition for leave to appeal into appeal and bail was granted.

2008  SCMR  991   SUPREME-COURT

AMANAT ALI  VS State

1. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Leave to appeal was granted for safe administration of justice, inter alia, to consider the contentions of the accused that Sub-Inspector of Police, the complainant, had investigated the case himself, thus he being interested in the prosecution should not have acted as Investigating Officer; that out of 2-1/2 kilograms of heroin kept in eight packets, only one gram was sent for chemical analysis and that all the three accused persons were said to be sitting inside the car, from which the said heroin was recovered from its secret cavities and on search of the said car an open transfer letter was also secured, as such, none of them were the owners of the car, therefore, they had no exclusive knowledge about the presence of heroin therein.

2008  SCMR  991   SUPREME-COURT

AMANAT ALI  VS State

1. 9(c)-Reappraisal of evidence—Benefit of doubt—Prosecution case was that accused was driving the vehicle, the ownership of which was also claimed by him on the basis of open transfer letter in his possession and fact that vehicle was being run by the accused as taxi, was neither contradicted nor any evidence was brought on record to suggest that co-accused of the accused being his associate in the crime had the knowledge of presence of heroin being kept in the secret cavities of the vehicle—Validity—Careful examination of evidence suggested that in the light of circumstances leading to the occurrence, the prosecution had not been able to prove the charge against the said co-accused beyond reasonable doubt—No evidence was available to the effect that co-accused being companions of the accused in the crime had the conscious knowledge of presence of heroin in the taxi car to treat them in joint possession of recovered heroin—Supreme Court, in view of doubt arising in the prosecution case to the extent of participation of co-accused persons in the crime, while giving them benefit of doubt, acquitted them from the charge and directed that if they were not required in any other case, they shall be forthwith released from jail.

2008  SCMR  991   SUPREME-COURT

AMANAT ALI  VS State

1. 9(b)(c)—Reappraisal of evidence—Sentence, reduction in—Accused being driver and owner of the vehicle, would stand on different footing than his companions in the taxi car; as he being in the exclusive control of the vehicle in which heroin was kept in secret cavities, would be deemed to have been in exclusive possession of the heroin recovered from the car, therefore, charge against him stood proved beyond doubt—Only a small quantity of one gram of heroin was taken from all the eight packets in a separate sealed parcel for chemical examination, therefore, notwithstanding the fact that the report of the chemical examiner was positive, the crucial question for determination would be as to whether a quantity of one gram would be sufficient to ascertain the origin of the contents of all the eight packets—Apparently the claim of the raiding party to have taken small quantity of heroin from each packet for chemical analysis appeared to be misguiding rather the circumstances would show that one gram of heroin was taken from one packet and thus, report would be relevant only to that extent—In the normal situation it was essential for the raiding party to prepare a separate parcel of at least one gram from each packet for chemical analysis and same having not been done, a serious doubt, would arise in respect of the origin of contents of all the packets—In consequence thereto, it would not be safe to bring the case within the ambit of S.9(c) of Control of Narcotic Substances Act, 1997 for the purpose of conviction and sentence rather a legitimate presumption would be that the report of Chemical Examiner would be read only to the extent of one packet of the approximate quantity of less than one kg and in that the case would squarely fall within the ambit of S.9(b) of the said Act—Conviction of accused, in circumstances, under S.9(c) of the Act was bad in law—Accused had remained in jail throughout from the date of his arrest and had almost completed a period of five ‘years of his sentence, which may be considered sufficient sentence under S.9(b) of the Act—Supreme Court, while converting the conviction of accused under S.9(c) of the Act to that of S.9(b) reduced his sentence equal to the period already undergone by him with fine imposed upon him by the Trial Court—Accused was also held to be entitled to the benefit of S.382-B, Cr.P.C. and was ordered to be released from jail forthwith if not required in any other case.

2008  PLD  19   PESHAWAR-HIGH-COURT

IMTIAZ VS State

1. 9(c)—Appreciation of evidence—Inferential evidence—Benefit of doubt—Case of prosecution was that when Police party on prior information went to the spot they found cartons and packets in question lying on foot-path; that man standing nearby started running who was allegedly chased caught and that man was accused—One of the prosecution witnesses had admitted that except for the fact that accused ran away from the spot, he could not make any connection of the cartons with accused during his entire investigation—Said witness could not produce any direct or indirect evidence against accused through which he could connect accused with the said cartons—Other prosecution witness had also stated that there was no evidence to connect accused with the offence—Where prosecution had failed to bring on record any nexus or link of the narcotics recovered from accused; and when his apprehension was from a distance of one furlong in a thickly populated area; and when no site-plan was prepared; whereas it was so required in the case, so that a court could determine as to under what circumstances accused was arrested, the mere fact that someone present close to the cartons had run away or tried to run away would be only inferential evidence whereas no conviction could be recorded on inferences—Benefit of doubt was extended to accused and conviction and sentence awarded to him by the Trial Court were set aside and he was acquitted.

2008  PLD  12   PESHAWAR-HIGH-COURT

ISLAM GUL VS State

1. 9(c)—Appreciation of evidence—Co-accused was a mere lift taker in the vehicle concerned as he was a “Gandamar” who used to bring small pieces of foreign cloth from Tribal Areas to settled areas and seeing him a friend got lift from him—Statement of defence witness produced by said co-accused had not been shattered by the prosecution—Said co-accused present in the vehicle though was known to the driver of the vehicle, but seemed not connected with the offence—Co-accused was exonerated of the charge and was ordered to be released.

2008  PLD  12   PESHAWAR-HIGH-COURT

ISLAM GUL VS State

1. 9—Appreciation of evidence—Prosecution witnesses in case of one of accused persons were put to lengthy and strenuous cross-examination, but nothing came out from their mouth which could favour said accused—Minor concession though had been given by the prosecution witnesses, but that would not mar the prosecution case—Accused admitted in their own statements their presence in the vehicle concerned—Recovery had been made in presence of accused and in the presence of the marginal witnesses—High quality of narcotics i.e. 450 Gms. Pukhta charas and 3 Kgs. opium had been recovered from the vehicle which was driven by the accused—Statement that a driver driving a vehicle would not have checked his diggi was not appealing to the common sense—Prosecution, in circumstances had proved its case beyond any doubt against the accused—Appeal of the accused against his conviction and sentence, was dismissed.

2008  YLR  2949   PESHAWAR-HIGH-COURT

NASEEB MUHAMMAD VS State

1. 9(b)—Appreciation of evidence—Sentence, reduction in—Prosecution witnesses had fully proved the recovery of the contraband from the possession of accused—Said witnesses had been sub­jected to very lengthy cross-examination, but nothing adverse had been squeezed out from their mouths to dislodge the recovery effected from the witnesses by the prosecution—Accused were held up in motor car which was taken into possession–Nothing had been brought on record to prove that witnesses, who were police officials, had any animosity against accused persons—Prosecution of both accused was in accordance with law and conviction recorded against them was maintained—Lenient view was taken on the question of sentence, as the total contraband recovered from the possession of accused persons was one Kilogram Charm—Sentence of imprisonment was reduced to the one already undergone, while sentence of fine was maintained.

2008  YLR  2949   PESHAWAR-HIGH-COURT

NASEEB MUHAMMAD VS State

Ss. 9(b) & 39—Criminal Procedure Code (V of 1898), Ss.516-A & 517—Confiscation of vehicle—Handing over vehicle on superdari—Prosecution having failed to establish that co-accused had any conscious knowledged of the fact that his vehicle was being used for trafficking of contraband, same, in circumstances was not liable to confiscation and thus confiscation order passed by the Trial Court was liable to be set aside—Vehicle was on superdari with co-accused to a personal bond furnished by him, which bond stood discharged.

2008  YLR  2944   PESHAWAR-HIGH-COURT

ABU AYUB VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, refusal of—On a search at the counter of international departure hall at the Airport, accused was caught red-handed along with contraband heroin, which, after weighment came to be 2 K.Gs.-Samples were sent to the Laboratory and the report received was in positive—Quantity recovered from possession of accused was hit by the embargo contained in S.497, Cr. P. C. and thus accused was not entitled to the concession of bail.

2008  YLR  2934   PESHAWAR-HIGH-COURT

FAZAL-UR-REHMAN VS State

1. 9(c)—Appreciation of evidence—Sentence, reduction in—Huge quantity of five Kilograms Pukhta Charas was recovered from the direct and physical possession of accused—Accused had failed to bring anything on record that he had falsely been roped in the offence because of any rivalry with the official witnesses—Prosecution, in circumstances, had successfully proved its case against accused and Trial Court, had rightly convicted him—Accused being a first offender and nothing being on record about his previous involvement in such. like offences, quantum of punishment awarded to him seemed to be harsh, which deserved to be dealt with leniently—Maintaining conviction of accused, sentence of ten years awarded to him by the Trial Court was reduced to four years’ R.I. and the fine of Rupees eighty thousand was reduced to Rupees twenty thousand.

2008  YLR  2919   PESHAWAR-HIGH-COURT

MUHAMMAD KABAL KHAN VS State

S.9—Appreciation of evidence—Sentence, reduction in—Impugned judgment of conviction of accused was based on sound footings—Huge quantity of contraband `gardah Charas’ had been recovered from the direct and physical possession of accused for which he had failed to give any plausible explanation—Laboratory report was in positive—Testimony of official witnesses, in such like cases, could not be doubted, unless any ill-will or personal grudge was established on record—Prosecution, in circumstances had duly proved its case against accused and the Trial Court had rightly convicted accused—Accused, being a first offender and nothing being on record about his previous involvement in such like offences, the quantum of punishment awarded to accused by the Trial Court seemed to be harsh which deserved to be dealt with leniently—While maintaining the conviction of accused, sentence of five years awarded to accused was reduced to three years’ R.I. and the fine of rupees fifty thousands was reduced to rupees ten thousands.

2008  YLR  2712   PESHAWAR-HIGH-COURT

Syed MEHMOOD SHAH VS State

Ss. 9(c) & 25—Penal Code (XLV of 1860), Ss.468 & 471—Appreciation of evidence—Sentence, reduction in—Accused was arrested from the spot while trafficking huge quantity of Charas and opium along with arms and ammunitions in the vehicle bearing forged and bogus registration number—Prosecution witnesses were unanimous on the points of time, place, recovery. of arms and ammunitions and seizure of narcotics from the secret cavities of the vehicle driven by accused—Samples of contraband articles sent for chemical analysis were also found by the Chemical Examiner to be Charas and opium—Planting of such huge quantity of narcotics was next to impossible for the police officials—Case of accused was of simple denial; it was a case of Nakabandi/checking and the prosecution witnesses being members of the checking party, their presence at the spot was natural—Police employees were the competent witnesses like any other independent witnesses and their evidence could not be discarded merely for the reason that they were the police employees—Contention of defence counsel regarding non joining of private witness, had no force, because S.25 of Control of Narcotic Substances Act, 1997 had excluded the application of S.103, Cr. P. C. —Testimony of prosecution witnesses was corroborated by a positive report of chemical analysis—Delay of few days in sending the samples to Laboratory, which was due to rush of work, was of no consequence in view of huge quantity of narcotics recovered from the secret cavities of vehicle in possession of accused—Defence having not challenged conviction and sentence awarded to accused under Ss.468 & 471, P.P.C., was maintained—Prosecution had successfully established the guilt of accused and defence counsel had not been’ able to point out any error or illegality, misreading or non reading of evidence in the impugned judgment of the Trial Court—However, keeping in view the quantity of narcotics and old age of accused and fact that he was driver of the vehicle, the ends of justice would be met if death sentence awarded to accused by the Trial Court was reduced to the imprisonment for life—Maintaining conviction of accused, death sentence awarded to him by the Trial Court was reduced to imprisonment for life and remaining conviction and sentence passed by the Trial Court against accused was upheld.

2008  YLR  2702   PESHAWAR-HIGH-COURT

FAHEED GUL alias FAREED GUL VS State

1. 9(c)—Appreciation of evidence—Accused were arrested on the spot while trafficking huge quantity of Charas Pukhta in a truck—Material prosecution witnesses were consistent and unanimous on the points of time, place, recovery of contraband Charas and its seizure from the secret cavities of the vehicle—Report of Chemical Examiner was positive—Plantation of such huge quantity of narcotics was next to impossible—Case of accused was of simple denial and they had not attributed any mala fide, enmity or dishonesty in investigation to the officials for their involvement in the case—Recovery of said huge quantity of narcotics had not been disputed by accused persons and explanation furnished by them that they were not in the know of narcotics in the secret cavities of the truck, was neither reasonable nor worthy of reliance—No illegality, perversity or unreasonableness in the impugned judgment of the Trial Court was pointed out—Prosecution, in circumstances had brought home charge against accused persons beyond reasonable doubt—Case was that of Nakabandi/ checking and the prosecution witnesses were members of the checking party and their presence at the spot was natural—Such were competent witnesses like any other independent witness and their evidence could not be discarded merely for the reason that they happened to be official of the department—Prosecution had successfully established the guilt of accused person to the hilt by producing evidence–Defence counsel had not been able to point out any error or illegality, misreading or non-reading of evidence in the impugned judgment of the Trial Court—Impugned judgment was upheld, in circumstances.

2008  YLR  2598   PESHAWAR-HIGH-COURT

ZARIN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51—Bail, refusal of—Two accused persons were held up by the police on a prior information on the road where the picket had been laid and from the car heroin in question had been recovered, the quantity of which exceeded ten grams—Such recovery attracted the provisions of S.9 of the Control of Narcotic Substances Act, 1997, which carried sentence of imprisonment for life in case the case was proved and it could also involve capital sentence—Averments contained in the F.I.R. and the date available on the record had shown that reasonable grounds existed to believe that accused had committed an offence punishable with death or transportation for life and same was hit by the embargo contained in S.497, Cr.P.C.-Bail application was rejected in circumstances.

2008  YLR  2370   PESHAWAR-HIGH-COURT

AURANGZEB VS State

Ss. 516-A & 561-A—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4—Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 33—Quashing of order—Petition for—Superdari of Bus, application for—Petitioner through petition filed under S. 561-A, Cr.P.C. had sought quashing of order passed by the Trial Court whereby his application for Superdari of Bus involved in criminal case, was dismissed—Trial Court before confiscation of Bus in question, was required to have issued a notice under S.33 of the Control of Narcotic Substances Act, 1997 to the petitioner/owner, which had not been so issued to him—Petitioner had no nexus with the commission of the offence and impugned order was passed by the Trial Court behind the back of the petitioner—Maxim of law “that nobody should be condemned unheard” which was well entrenched in the judicial system, had been violated by the Trial Court, in circumstances—Impugned order was quashed to the extent of confiscation of Bus and case was remanded to the Special Judge/Trial Court for decision afresh in accordance with law.

2008  YLR  2262   PESHAWAR-HIGH-COURT

Mst. HALEEMA MAI VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of—Accused was female with an advanced age of seventy years—Subsection (1) of S.497, Cr. P. C., entitled the female accused to be released on bail in all other offences, except terrorism, financial corruption and murder—Accused was not involved in either of the said exceptions—Accused was behind the bars since long and her trial was not in sight in the near future—Being a female, accused might not be in the know of the fact that the recovery and alleged four small bags of poppy straw would fall under the definition of `narcotic substances’ because same were available and used by the quacks for medical purposes—No mens rea was attached for accused in circumstances—Accused was admitted to bail.

2008  YLR  2074   PESHAWAR-HIGH-COURT

Mst. BUSHRA alias FAKHRA VS State

1. 497 [as amended vide Code of Criminal Procedure (Second Amendment) Ordinance (XXVI of 2007]—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51—Bail, grant of—Accused in the present case was a woman and as per amendment in S.497, Cr.P.C. vide Code of Criminal Procedure (Second Amendment) Ordinance, 2007, she was entitled to be released on bail and because of newly added proviso to S.497, Cr.P.C, facility of bail to the offences under all the laws for the time being in force, Control of Narcotic Substances Act, 1997, could not be deemed to be an exception—Accused was admitted to be released on bail availing the benefit of the amendment.

2008  YLR  2019   PESHAWAR-HIGH-COURT

SAID MUHAMMAD KHAN VS State

1. 9(c)—Appreciation of evidence—Benefit of doubt—Accused was not arrested on the spot, but was nominated by his co-­accused—Such nomination could be a base for investigation against accused, but for conviction, admissible evidence was required against him—Neither any judicial or extra judicial confession was made by accused nor anything incriminating was recovered at his pointation—No witness was on record against accused providing direct evidence to show his involvement in the case—Hearsay evidence and that too from the mouth of a co-accused, who had neither offered a judicial confession nor he was an approver, was not admissible—Nothing was on record that complainant/ Police Inspector, or any of the members of his team had recognized the person by face, who had fled away from the car in question—Involvement of accused in the case was shrouded in thick clouds of doubts—No tangible admissible evidence was available against accused to connect him with the crime—Accused was acquitted extending him benefit of doubt.

2008  YLR  2019   PESHAWAR-HIGH-COURT

SAID MUHAMMAD KHAN VS State

1. 9(c)—Appreciation of evidence—Sentence, reduction in—Co-accused was arrested from the rear seat of the car under which the heroin filled capsules were kept–No good ground could be found to accept plea of co-accused that he had been made a scapegoat—Co-accused could not show or express any malice in between him and Anti-narcotic Force/Police Party, that had arrested co-accused, their statements were not suffering from material contradictions or inherent deficiency-Prosecution had succeeded to prove the guilt of co­-accused—Maintaining conviction of co-accused, his sentence, however, was reduced to two years’ R.I. to meet the ends of justice.

2008  YLR  2014   PESHAWAR-HIGH-COURT

HAKEEM SHAH VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of—Further inquiry—Argument of State Counsel that offence with which accused was charged was hit by the embargo contained in S.497, Cr.P.C., was without substance, because if the court on the data available on record would come to the conclusion that in the case maximum sentence could not be awarded, same would go out of the said embargo laid in S.497, Cr. P. C. —Occurrence had allegedly taken place on main Highway, but despite the presence of passengers including driver and conductor of the bus in question, none was cited as a witness to the recovery of contraband Charas—Forensic Science Laboratory’s report had not been made available—Investigation in the case was complete and accused was no more required for said purpose—Prima facie case of accused fell within the ambit of further inquiry, entitling him to concession of bail—Accused was admitted to bail, in circumstances.

2008  YLR  1638   PESHAWAR-HIGH-COURT

THE STATE through Advocate-General, N. -W . F. P.  VS GHULAM NABI

Ss. 9(c) & 48—Penal Code (XLV of 1860), Ss.419, 420, 468 & 471—West Pakistan Arms Ordinance (XX of 1965), S.13— Criminal Procedure Code (V of 1898), S.417—Appeal against acquittal—Accused, in appeal against acquittal, had double presumption of innocence in his favour, one that every accused would be presumed to be innocent unless proved to be guilty; and the other that competent court of law had adjudged him not guilty—As a rule, once the innocence of an accused was established at the trial in the Court of law of competent jurisdiction and acquitted of the charge, then very strong and exceptional grounds would be required for interference with the same—Accused, in the present case, was not arrested on the spot, but was subsequently arrested—One .30 bore pistol having been recovered from accused a separate challan should have been submitted to a competent court as present case did not include the charge under S.13 of West Pakistan Arms Ordinance, 1965 against accused to have been tried by the Trial Court—No test identification parade had been held in the case so as to positively incriminate accused—No narcotic substance had been recovered from actual physical possession of accused—Co-accused in his court statement had exonerated accused from the charge by stating that he had not accompanied him—Accused was neither owner of the narcotics nor its supplier and as such doubt about involvement of accused in the case had arisen though no inimical terms had been attributed to the prosecution—Conclusion drawn and reasons given by the Trial Court for acquitted of accused had shown fair evaluation of evidence and same did not suggest any legal or factual infirmity—Appeal against acquittal was dismissed.

2008  YLR  1070   PESHAWAR-HIGH-COURT

SHAH DIYAZ KHAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of—Quantity of Charas allegedly recovered from accused was 500 grams, punishment of which did not come within the prohibitory clause of S.9 of Control of Narcotic Substances Act, 1997 and at the most it carried the sentence of seven years—Mere production of two F.I.Rs. against accused would not disentitle him to the concession of bail as that had yet to be proved and the prosecution had to establish in those F.I.Rs. that accused had committed such like offence previously—F.I.Rs. contained only allegations which had yet to be taken to its logical end—Accused, in circumstances was admitted to bail.

2008  YLR  812   PESHAWAR-HIGH-COURT

MUHAMMAD SHAFI VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, refusal of–Bail application earlier filed by accused having been rejected, fresh bail application had been submitted by him on the ground of delay in disposal of the case as ordered by the High Court in earlier bail application—Record had revealed that the case had been put in court, proceedings were in progress and order sheet revealed that on each and every date of hearing, the witnesses were present but counsel for accused used to get the case adjourned on one pretext or the other—Apparently delay was not on the part of the prosecution, but it was the counsel for accused who was instrumental in delaying the proceedings and the impact whereof would have to be borne by accused—Case having been adjourned on the request of counsel for accused, fresh ground agitated in the application would not prevail with the court as the delay could not be attributed to the prosecution—Counsel of accused, specially in cases where accused were behind the bars languishing there either for their release on bail or for their acquittal or for conviction, was duty bound to assist the court and to provide speedy justice to his client—Such was not only the legal duty of an Advocate, but also as ordained by Allah Almighty in the Holy Quran to administer justice—Bail application was dismissed by High Court with directions to the Trial Court to conclude the trial as expeditiously as possible.

2008  YLR  807   PESHAWAR-HIGH-COURT

GUL REHMAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, refusal of-Accused, besides being directly charged in the F.I.R., was arrested on the spot with six kilograms of contraband Charas, which he used to sell to the people—Complaints were regularly being received against the two brothers, who were absconding co-accused that they were regularly selling the contraband to the people—Strong evidence was available on the record against accused—Huge quantity of 6 kgs Charas had been recovered and the punishment for the offence with which accused was charged under S.9 of Control of Narcotic Substances Act, 1997 carried sentence of life imprisonment which was hit by the embargo as contained under S.497 Cr. P. C.—Co-­accused was at large—Reasons existed to believe as per data available on the record that accused had prima facie committed the offence, for which he had been charged—Bail was refused in circumstances.

2008  PCrLJ  1610   PESHAWAR-HIGH-COURT

MUBARAK DIN VS State

1. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of—Argument with regard to the non-association of the private witnesses despite prior information, had no force, because S.103, Cr.P.C. had been excluded by Control of Narcotic Substances Act, 1997—Same principle would not be applicable even for the involvement of the informer because the people could furnish spy information, but could not dare to be cited as witnesses against drug traffickers—Arguments with regard to the initial action of raid, recovery and arrest by the A.S.I., would also not hold much weight, though it was desirable that the legally authorized officer should have conducted the raid on proper information—Presence of accused in front of alleged shop along with the contraband for the sale of narcotics to the potential client; non-mentioning of the shop in the site plan; rather the failure of .the Investigating Officer to prepare the site plan; and the failure to recover the sale proceeds and the scale and weight for the purpose of retail sale of Charas, were some of the major defects in the investigation process—F.I.R. contained an allegation that three slabs of Charas were recovered and sample of 5 grams for chemical analysis was obtained from each of the slab and a total of 15 grams comprising 3 samples were forwarded to Forensic Science Laboratory, whereas said Laboratory had received only 5 grams of narcotics comprising of 3 samples, which would mean that only 1 Kg. Charas had been recovered from the possession of accused—Gravity of the offence, in circumstances, was diluted, at least to the extent of tentative assessment at bail stage—Keeping in view the punishment likely to be imposed on accused, at the conclusion of trial, accused could be released on bail—Accused was admitted to bail, in circumstances.

2008  PCrLJ  1484   PESHAWAR-HIGH-COURT

THE STATE through Director A.N.F., Peshawar VS ABDUL QADEER PARACHA

1. 561-A—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 33 & 46—West Pakistan Arms Ordinance (XX of 1965), S.13—Petition for quashing of order—Trial Court after recording of evidence while taking into consideration the material on record, came to conclusion that petitioner had proved himself to be the owner of the car in question; and same had been leased out to accused on rent; and he had no knowledge regarding the trafficking of the contraband in said car and the Trial Court had rightly declared him to be entitled to the custody of the car—No rival claimant of car in question had come forward and fact that owner had no nexus with the commission of the offence, he had a vested right to the custody of the car—Order of the Trial Court was perfectly sound, just and strictly in accordance with law, which called for no interference and was not liable to be quashed.

2008  PCrLJ  1449   PESHAWAR-HIGH-COURT

IBRAR VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of—Further inquiry—Was yet to be determined at the trial, whether the case fell under S.9(b) or 9(c) of Control of Narcotic Substances Act, 1997 being a border line case—No independent witness of the recovery was available—Prima facie, the case of accused fell within the ambit of further inquiry entitling him to the concession of bail—Accused was admitted to bail, in circumstances.

2008  PCrLJ  1437   PESHAWAR-HIGH-COURT

DILA BAZ KHAN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of—Further inquiry—Was yet to be proved at the trial, whether the case of accused, from the facts and circumstances brought on record, fell under S.9(b) or 9(c) of Control of Narcotic Substances Act, 1997 as the quantity of the alleged recovered Charas marginally exceeded; and it was a border line case between clauses `(b)’ and `(c)’ of S.9 of Control of Narcotic Substances Act, 1997; where maximum punishment could not be awarded, even if the charge was established—No independent witness of the recovery was on record—Report of Forensic Science Laboratory was a delayed one and no one as purchaser had been cited or examined by the prosecution in support of its case—Such were the good grounds to bring the case of accused within the ambit of further inquiry entitling him to concession of bail—Accused was allowed bail, in circumstances.

2008  PCrLJ  1017   PESHAWAR-HIGH-COURT

FAYAZ KHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail, refusal of—Nineteen capsules containing 130 grains heroin, put in the bottle of shampoo, placed in the bag of accused were recovered at Airport when he was going to fly abroad—Accused disclosed swallowing some capsules containing heroin during interrogation—Accused, in the peculiar facts and circumstances of the case, was attempting to smuggle heroin abroad through highly deceitful means putting at risk his own life and his nation’s dignity—Such could be an exceptional circumstance to decline accused bail—Accused had already been called to face trial by the Trial Court—Accused was not entitled to bail, in circumstances.

2008  PCrLJ  964   PESHAWAR-HIGH-COURT

MUSHTAQ AHMAD VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Accused and his female co-accused were held up by the Anti-Narcotic Force Police at the same time and almost equal quantity of Charas was recovered from them—Co-accused had already been released on bail and the quantity recovered was not hit by the embargo contained in S.497 Cr.P.C.—Investigation in the case was complete and the challan had been put in court—Presence of accused or keeping him behind the bars would not help the prosecution—Accused was admitted to bail, in circumstances.

2008  PCrLJ  906   PESHAWAR-HIGH-COURT

HIKMAT VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Penal Code (XLV of 1860), Ss.419, 420, 468 & 471—.Passports Act (XX of 1974), S.6— National Database and Registration Authority Ordinance (VIII of 2000), Ss.30 & 31—Bail, refusal of—Accused was found carrying the capsules full of heroin which was duly recovered from his stomach after X-Ray Examination by a doctor—On weighing same was found 620 grams—Accused had been held up on international departure of the Airport and he was bound to smuggle it to a foreign country—Accused had also disclosed his fake name and he was also travelling on fake and forged documents—Reasonable grounds, in circumstances, existed to believe that he was guilty of offence which was hit by the embargo contained under S.497 Cr.P.C.

2008  PCrLJ  354   PESHAWAR-HIGH-COURT

SHAMSUR REHMAN alias SHAMSAY VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Further inquiry—Alleged recovery of the contraband Charas was effected from a vehicle in the broad daylight, but accused, who was stated to be dealing in narcotics fled away seeing the police party—Recovery was not effected from the immediate possession of accused and allegation against him was not supported through an independent evidence—Accused though was allegedly seated on the front seat of the vehicle, but as to who was driving the vehicle was not clear from the contents of the F.I.R. and if some one else was seated on the driver seat, why he was not taken into custody—Case of accused, in circumstances was that of further inquiry—Bail was allowed to accused, in circumstances.

2008  PCrLJ  348   PESHAWAR-HIGH-COURT

SHAUKAT HAYAT VS State

2008  PCrLJ  165   PESHAWAR-HIGH-COURT

SAFDAR ALI VS State

2008  MLD  1603   PESHAWAR-HIGH-COURT

SHAKEEL ARSHAD VS State

1. 516-A—Control of Narcotic Substances Act (XXV of 1997), Ss.9(b), 32 & 74—Return of vehicle on Superdari—Application of petitioner, who claimed to be owner of motor car in question, was turned down by the Special Court—Validity—Petitioner who was bona fide lawful owner of vehicle was earning his livelihood by plying the vehicle on rent through accused/driver—Petitioner was not accused person in the case and nothing’ was on record to show that petitioner had any knowledge that accused/driver would use his vehicle for committing any offence relating to narcotics and the law would not place the onus on the petitioner to prove his lack of knowledge in that regard—Rights of the owner who had no knowledge of the commission of offence or had no conscious hand in the crime, were fully protected—Courts would come to the rescue. of the owners when their vehicles were used without their knowledge for the commission of offence—Vehicle in question was parked in open space exposed to the vagaries of weather; its retention in police custody for an indefinite period would also achieve no useful purpose—Local Police of ANF was directed by High Court to hand over custody of vehicle to the petitioner on furnishing bail bond by him with two sureties.

2008  MLD  1589   PESHAWAR-HIGH-COURT

REHMAT ZAMAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 20—Bail, grant of—Search warrant in the case was issued by the Judicial Magistrate, whereas under the law search had to be conducted strictly in accordance with S.20 of Control of Narcotic Substances Act, 1997, and it was the Special Court, which had to issue the search warrant—Any violation of said provision of law would make the search illegal—Court of law had to implement the law as it was—Site plan would show that the place wherefrom the alleged recovery was made, was a dewelling house surrounded by abadi, but none from the public had been associated with the recovery proceedings—Prosecution had annexed with the record two F.I.Rs and on the strength of said F.I.Rs. State Counsel argued that accused being previously involved in selling narcotics was not entitled to the concession of .bail—Validity—Mere producing F.I.R. against accused would not disentitle accused to the concession of bail as the prosecution had to prove the guilt of accused in a court of competent jurisdiction—Accused, was admitted to bail, in circumstances.

2008  MLD  1578   PESHAWAR-HIGH-COURT

NIAZBAT VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, refusal of—Huge quantity of six Kilograms Charas had been recovered from accused—Contents of the F.I.R. revealed that accused was also involved in other criminal cases and also that those cases were compromised, but prima facie involvement of accused in those cases was proved—Accused being a hardened criminal was not entitled to the concession of bail—Investigation in the case was complete and the prosecution had also drawn the complete Challan—Bail was refused.

2008  MLD  1565   PESHAWAR-HIGH-COURT

INAM ULLAH KHAN VS State

1. 9(c)—Appreciation of evidence—Prosecution case was full of doubts and defects and material contradictions existed in statements of the prosecution witnesses—Complainant while appearing as prosecution witness had stated that after completion of the requisite formalities he had himself drafted the Murasila, but in cross-examination he had taken a different stand by stating that under his dictation, the Murasila was drafted by his subordinate—Stance of the complainant was that he himself searched the coach and deboarded all the passengers therefrom during search proceedings—Complainant was negated by statement of prosecution witness who had states[ that only the driver of the coach was deboarded and during search of the vehicle the Charas was recovered while none of the passengers was either searched or deboarded therefrom—Such contradiction in the statements of the prosecution witnesses were sufficient to hold that prosecution had failed to bring home guilt of accused—Trial Court, in circumstances, failed to properly appraise the evidence brought on record—Impugned judgment of conviction of accused was not based on sound reasoning and the evidence brought on record had not been correctly appreciated by the Trial Court—Prosecution had not been able to prove its case against accused beyond any shadow of reasonable doubt and benefit of such doubt would go in favour of accused—Impugned conviction and sentence of accused, were set aside and he was acquitted of the charge against him.

2008  MLD  1121   PESHAWAR-HIGH-COURT

FARMAN ALI VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Trial of case had commenced—Accused was suffering from hepatitis-B, his sickness was of such a nature which required very specialized management and treatment which was not at all available inside the jail and being a fatal disease, if same was not effectively managed and properly treated, could take a toll on his life—Offence for which accused was charged provided maximum punishment of 14 years and being a first offender, question whether the Trial Court would opt for awarding the maximum or the lesser sentence also made it a border line case—Case for grant of bail having been made out mainly on the ground of sickness, accused was admitted to bail.

2008  MLD  1002   PESHAWAR-HIGH-COURT

ROOH-ULLAH VS State

Ss. 4, 5, 15 & 9(c)—Appreciation of evidence—Trial Court while convicting and sentencing two accused, had adopted view that when both of them were arrested, they Were gathering opium Poppy as envisaged in S.4 of Control of Narcotic Substances Act. 1997—Said opinion of the Trial Court could not be agreed to because putting huge quantity of `crushed Poppy Pods and straws’ in vehicle and taking it from one place to another, was a process, which did not fall within the meaning of `gather’ used in S.4 of Control of Narcotic Substances Act, 1997—Both said accused persons; in circumstances were wrongly held guilty. under S.4 of Control of Narcotic Substances Act, 1997—Conviction of said two accused which was on wrong premises, was not sustainable—Conviction and sentence of said two accused, were set aside and their case was remanded for retrial and fresh decision according to law.

2008  MLD  906   PESHAWAR-HIGH-COURT

State VS SIRAJ KHAN

1. 9(c)—Sentence, reduction in—Mitigating circumstance—Petition for enhancement of punishment—Petition had been moved by State for enhancement of sentence awarded to accused by the Trial Court—Trial Court, taking lenient view sentenced accused to imprisonment for the period already undergone—Alleged recovery was effected from the personal search of accused while he was travelling in a bus—Accused was a young boy of tender age and he had no previous background of involvement in drug trafficking—Trial Court, in circumstances had rightly taken a lenient view and young age of accused was a mitigating circumstance which had convinced the Trial Court to award a meager sentence—Judgment of the Trial Court was well-founded, convincing and was based on sound appreciation of evidence, which could not be interfered with in revision petition.

2008  PLD  59   PESHAWAR-HIGH-COURT

ASHFAQ AHMAD VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of—Further inquiry—Accused, who was given lift in the car in which some contraband Charas was allegedly being smuggled, was not in the know of the presence of the contraband Charas in the car—On seeing the police party co-accused who was driving the car first tried to flee away with the car, but seeing no chances of his escape, parked the car on the side of the road and fled away-If that confession of accused was . taken into consideration in its entirety which was exculpatory in nature, same would not tend to connect accused with the commission of offence—Co-accused having run away, but accused remained sitting in the car, co-accused could be presumed to have the conscious knowledge of the contraband lying in the car—Conscious possession of accused had to be thrashed out at the time of trial, whether it had made out a case of further inquiry—Prosecution had yet to prove that accused was in any way linked with absconding co-accused—Direct conscious possession had to be shown at the time of trial by the prosecution—Direct link of accused with said crime as well as with co-accused, had also to be established by the prosecution at the time of trial—Accused was admitted to bail, in’ circumstances.

2008  PLD  40   PESHAWAR-HIGH-COURT

RAFIQ-UR-REHMAN VS State

1. 517—Control of Narcotic Substances Act (XXV of 1997), S.9—Superdari of vehicle—Application for custody of car in question on `superdari’ was rejected—Case of petitioner was that he was owner of the car in ,question and he had given same to a `rent a car dealer’—Petitioner had placed on record agreement of said dealer, which was an unsigned document which was not signed either by said dealer or by the petitioner—Car in question was a case property in a criminal case, in which huge contraband items were recovered and case was registered under S.9 of Control of Narcotic Substances Act, 1997—Car being a case property which the local police had taken into possession, question of its return would be determined at the time of final hearing of the case and proper order for its custody, would be made under S.517, Cr.P.C.—Local police was directed to arrange for the safe custody of the car till then.

2008  PLD  243   LAHORE-HIGH-COURT-LAHORE

MANZOOR AHMAD VS State

1. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4—Appreciation of evidence—Eye-witnesses had made consistent statements regarding receipt of secret information, pointing of accused by the informer, place from where the accused was apprehended by the police with contraband “Charas” and the date and time of his arrest—Discrepancies pointed out in prosecution evidence were minor and of trivial nature which did not diminish its worth—Plea taken by accused regarding his false implication in the case had no ring of truth and appeared to be farfetched—Complainant and other police officials had no reason to plant a huge quantity of contraband on the person of the accused—Contention regarding non-compliance of section 103, Cr.P.C. was misconceived as the same had been specifically excluded by section 25 of the Control of Narcotic Substances Act, 1997, from its application in cases of narcotics—Even otherwise, in such like cases public was hesitant to participate in recovery proceedings in order to avoid serious repercussions and ramifications—Dispatch of samples to the office of Chemical Examiner for analysis after the period of 72 hours had not rendered the seizure invalid, because Rule 4 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 was directory in nature and not mandatory and the same, therefore, could not control the substantive provisions of the Control of Narcotic substances Act, 1997, nor frustrate the purpose of the Act for which the same had been framed—Further, failure to follow the Rules would not, in any manner, render the search, seizure or arrest under the Act a nullity and make the entire prosecution case doubtful—Uncontroverted testimony of two witnesses had established that the parcels were received by them properly sealed, were kept in safe custody, were not tampered with and deposited in the office of the Chemical Examiner in due course with seals intact—Prosecution had proved its case against accused beyond any doubt—Conviction and sentence of accused were upheld in circumstances.

2008  YLR  2903   LAHORE-HIGH-COURT-LAHORE

QAMAR DIN VS State

Ss.9(c)/15—Appreciation of evidence—Accused had admitted the time and place of recovery—Recovery witnesses who had no malice or ulterior motive to depose falsely against the accused, had made consistent statements without any material contradiction or discrepancy—Defence plea was merely a bull and cock story—Fake recovery of huge quantity of heroin worth millions in the drug market could not possibly be planted against the accused—police “officials were natural and independent witnesses, who had proved the recovery of heroin from the accused beyond any shadow of doubt through their unimpeachable evidence—Accused were liable for the whole quantity of narcotics recovered from their personal possession as well as from the vehicle being in their constructive possession—Contention that accused could only be liable for the quantity of heroin sent to Chemical Examiner for analysis, had no force—Conviction and sentence of accused were maintained in circumstances.

2008  YLR  2903   LAHORE-HIGH-COURT-LAHORE

QAMAR DIN VS State

Ss.9(c)/15—Appreciation of evidence—Police witnesses—Credibility—Reluctance of general public to become witness in narcotics cases is a judicially recognized fact and court has to consider the statements of official witnesses, for which no legal bar exists—Police officials are equally good witnesses and can be relied upon, if their testimony remains un-shattered during cross-examination.

2008  YLR  2903   LAHORE-HIGH-COURT-LAHORE

QAMAR DIN VS State

Ss. 9(c)/15—Evidence— Police wit­nesses–Credibility—Police officials are as good witnesses as others and their evidence should not be discarded on this score alone.

2008  YLR  2903   LAHORE-HIGH-COURT-LAHORE

QAMAR DIN VS State

Ss.9(c)/15—Appreciation of evidence—Accused was simply a driver of the hired vehicle from which heroin was recovered which fact had been proved on record—Co­accused had hired the said vehicle–No narcotics had been recovered from the accused—Investigating Officer had challaned the accused on the basis of statement of his co-accused, which statement having been made before police, was of no evidentiary value—Accused could be presumed of having no knowledge that his co-accused were carrying narcotics in the shopper lying in the ‘Dikki’ of the car—Accused was acquitted in circum­stances.

2008  YLR  2538   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ARIF VS State

S.9(c)—Appreciation of evidence—Contradictions pointed out in the prosecution evidence were so minor that those were neither capable of annulling the entire trial nor making the recovery from the accused doubtful—Consistent statements of prosecution witnesses had proved the recovery of 1200 grams of heroin at the instance of accused from his “Jisti Bharola” lying in his house and the mention of the recovery of the same from personal search of accused in the charge by the trial Court was only due to inadvertence and was curable under S. 537, Cr.P.C. —Complainant police officer after preparing the complaint and the recovery memos. had handed over the investigation to other police officer, who had prepared the site-plan and taken all steps towards completion of challan—Even otherwise, complainant police officer was not debarred from investigating the case himself unless and until some malice or mala fide on his part was shown—Chemical Examiner had certified the material recovered from the accused to be heroin—Police Officials were as reliable as other private witnesses, unless proved to have some enmity against the accused for his false implication—State functionaries having no interest in the case could be safely relied upon—Conviction and sentence of accused were upheld in circumstances.

2008  YLR  2538   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ARIF VS State

S.9(c)—Appreciation of evidence—Police witnesses-Credibility-Official witnesses are as reliable as any other private witnesses unless they are proved to have some enmity against the accused or any interest to depose falsely implicating him—State functionaries having no such interest in the case can be relied upon for conviction.

2008  YLR  2538   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ARIF VS State

Ss.9(c), 21 & 22—Investigation by complainant—Not barred—Complainant is not debarred from investigating the case himself unless and until some malice or mala fide on his part is shown.

2008  YLR  2445   LAHORE-HIGH-COURT-LAHORE

ATTA ULLAH VS State

S.9(c)—Appreciation of evidence—All four prosecution witnesses produced by the prosecution had supported recovery of 3 Kgs. Charas from accused—Said prosecution witnesses had not been proved to have any malice or enmity against accused—Incriminating statements of the prosecution witnesses on oath, had proved the recovery of said Charas/narcotic substance from accused beyond any shadow of doubt—Was not shown as to why police would make fake recovery just to show its efficiency by planting a huge quantity of charas, value of which ran into lacs of rupees—Contradictions pointed out by counsel for accused, were so minor that those neither could be considered to have vitiated the trial nor those made the recovery from accused doubtful—Such minor discrepancies, if any, were bound to happen by lapse of time—Recovery from accused of charas weighing 3 kilograms, was proved and had also been certified by the Chemical Examiner through his report as Charas—Consistent statements of all prosecution witnesses, who had repeatedly been held as reliable, like private witnesses, unless those were proved to have some enmity against accused or any interest to depose falsely implicating the accused, did not leave any doubt about prosecution case—Trial Court, in circumstances had rightly relied on the statements of prosecution witnesses for the decision impugned in the appeal—Trial Court, in circumstances, had rightly concluded the charge against accused and had rightly convicted him.

2008  YLR  2439   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AKRAM alias SHAKIR VS State

S.9(c)—Appreciation of evidence—Sixteen kilograms of charas was produced during the trial and Chemical Examiner’s report confirmed that it was narcotic (charas)—Though no public witness was on record to support the recovery, but in the facts and circumstances of the case the statements of prosecution witnesses produced by the prosecution inspired confidence; firstly because two prosecution witnesses were natural witnesses as accused -was in their custody when he disclosed and led to the recovery of narcotics in question; secondly, neither during investigation nor in statement under S. 342 Cr.P.C. accused ever suggested any enmity with any of the prosecution witnesses to warrant an inference that prosecution was motivated by malice—Nothing was to prevent accused from producing witnesses in his defence who could have come and depose in support of his claim of innocence—Not to speak of producing witnesses in defence, accused himself had never appeared in his own defence—Accused having rightly been convicted and sentenced, his appeal against his conviction and sentence, was dismissed.

2008  YLR  2433   LAHORE-HIGH-COURT-LAHORE

ISLAM JELANI VS State

1. 9(b)—Appreciation of evidence—Sentence, reduction in—Recovery was of a very small amount of both heroin and Charas and accused had suffered the rigors of trial and also a part of the sentence after, he was taken into custody—Nothing was on record to suggest that accused was granted bail—No cogent evidence of any previous involvement of accused in any narcotic case being available, sentence awarded to him was reduced to one already undergone—Sentence of fine was also reduced accordingly.

2008  YLR  2332   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AKRAM VS State

Ss. 9(b) & 9(c)—Appreciation of evidence—Sentence, reduction in—Police had apprehended the accused in the “Bazaar” and recovered “Charas” from his personal search—During investigation of the said registered case accused after making a disclosure led to the recovery of nine K. G. opium and one K. G. “Charas” from his residential house which was taken into possession and a separate case was registered—Validity—Police had no ill-will or previous enmity for false implication of accused—Police officials were as good witnesses as the ordinary people—Such a huge quantity of narcotics could not be planted by the police officials—Accused was the first offender and narcotics recovered from him were less dangerous—Conviction of accused was maintained, but his sentence of 14 years’ R.I. was reduced to 8 years’ R.I. in circumstances.

2008  YLR  2314   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD JAMIL VS State

1. 9(b)—Appreciation of evidence—Police officials in such like cases were as good witnesses as the members of public at large—Investigating Officer and his associates having no enmity with the accused could not be expected to involve him falsely in the case—Prosecution evidence did not suffer from any inconsistency or contradiction—Chemical Examiner’s report had verified that the material recovered from accused was “Charas” which was an intoxicant—Conviction of accused was maintained, but his sentence of imprisonment was reduced to the term already undergone by him being sufficient to meet the ends of justice.

2008  YLR  2263   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD NAWAZ VS State

1. 9(b)—Appreciation of evidence—Heroin weighing 130 grams was allegedly recovered from the personal search of the accused—Accused had denied the allegation in his statement under S.342, Cr.P. C. taking the stand that about two months prior to the occurrence the Investigating Officer had taken from him Rs.5000 for registration of a case about the theft of his goat, but he did not register the case and on the application of accused the S. P. got returned Rs. 5000 to him from the Investigating Officer—Investigating Officer against whom the said allegation was made by the accused did not appear in the witness-box to rebut the same—Possibility was that the quantity of heroin so recovered had been planted on the accused, which was ordinarily done by the police—Defence evidence had also supported the version of the accused—Accused was acquitted in cir­cumstances.

2008  YLR  2252   LAHORE-HIGH-COURT-LAHORE

ZAFAR ABBAS VS State

1. 9(c)—Appreciation of evidence—Accused was convicted and was sentenced to undergo R.I. for 7 years and to pay fine—Counsel for accused contended that accused would feel satisfied if a lenient view was taken in awarding sentence because he was a first offender—Accused was first offender and had no previous criminal history—Maintaining conviction of accused, his sentence was reduced from 7 years to R.I. for 5 years.

2008  YLR  2250   LAHORE-HIGH-COURT-LAHORE

PETER MASIH alias ANDRAS VS State

1. 9(c)—Appreciation of evidence—Accused were apprehended on the day of occurrence on spy information which had ruled out possibility of false implication—Prosecution witnesses, though police officials, had no enmity or grudge against the accused and they were as good as public witnesses—Prosecution evidence was consistent and inspired confidence and the same could not be rejected merely on the ground of said witnesses being police employees—Section 25 of the Control of Narcotic Substances Act, 1997, had barred the application of S.103, Cr.P.C. to the cases under the said Act—No illegality or irregularity could be pointed out in the impugned judgment—Conviction and sentence of accused were maintained in circumstances.

2008  YLR  2250   LAHORE-HIGH-COURT-LAHORE

PETER MASIH alias ANDRAS VS State

1. 9(c)—Appreciation of evidence—Police witnesses—Police officials are as good witnesses as private persons, if their statements inspire confidence.

2008  YLR  2243   LAHORE-HIGH-COURT-LAHORE

KHAWAR MEHMOOD VS State

1. 9(c)—Appreciation of evidence—Recovery witnesses had fully supported the recovery of 40 Kilograms of “Charas” from the possession of accused through their consistent and confidence-inspiring depositions—Discrepancies pointed out in evidence were minor and not fatal to prosecution case—Defence version of false implication was merely a concoction and not believable—Such a huge quantity of Charas could not have been planted on the accused for a minor altercation—No enmity had been suggested with the witnesses of recovery—Non-association of public witnesses in the recovery proceedings had been duly explained by the Investigating Officer—Even otherwise, provisions of S.103, Cr.P.C. were not applicable to the case by virtue of S.25 of the Control of Narcotic Substances Act, 1997—Conviction and sentence of accused were upheld in circumstances.

2008  YLR  2232   LAHORE-HIGH-COURT-LAHORE

KHALID alias BAOO VS State

1. 9(c)—Appreciation of evidence—Non-production of case property in Court—Effect—Non-production of case property i.e., recovered narcotics in the Court is fatal to the prosecution case and destroys its very foundation.

2008  YLR  2232   LAHORE-HIGH-COURT-LAHORE

KHALID alias BAOO VS State

1. 9(c)—Appreciation of evidence—Same police officials on the same day had raided the house of another accused and recovered narcotics and the same set of witnesses as in present case had been disbelieved and the said accused in that case had been acquitted—Present case also suffered from the same defects as were observed in the said case—Case property i.e., recovered narcotics was not produced before the Trial Court and the same, therefore, could not be considered to have been recovered from the accused—Non-­production of the case property in the Court was fatal to the prosecution case which had destroyed its very foundation—Report of Chemical Examiner was made neither on the regular form nor the same was properly got exhibited during the trial—Chief Chemical Examiner had given his opinion on the backside of the Docket issued from the police station—Report was not clear whether it related to the present case or some other case—Genuineness of the Chemical Examiner’s report, thus, was not free from doubt and the same could not be safely relied upon—Accused were acquitted in circumstances.

2008  YLR  2201   LAHORE-HIGH-COURT-LAHORE

KARIM DAD KHAN VS State

Ss. 9(c) & 9(b)—Appreciation of evidence—Sentence, reduction in—Accused was apprehended at the spot and .heroin weighing 1050 grams was recovered on his personal search—Accused was also previously involved in many other cases of similar nature—Police officials had no enmity for false implication of accused by planting such a huge quantity of narcotic on him—Defence counsel was justified in not challenging the conviction, which was maintained—Quantity of heroin recovered from the accused was slightly over one kilogram which seemed to have been shown just to bring the case under S.9(c) of the Control of Narcotic Substances Act, 1997, otherwise upto the quantity of one kilogram the case would fall under S.9(b) of the said Act for which maximum sentence was seven years’ R.I.—Death sentence of accused was reduced to ten years’ R.I. along with reduction in fine in circumstances.

2008  YLR  2168   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD RAMZAN VS State

1. 9(b)—Appreciation of evidence—Sentence, reduction in—Sentence of accused recorded by the Trial Court, in circumstances, was rather excessive keeping in view the quantity of recovered narcotics from him—Appeal filed by accused to the extent of his conviction recorded by the Trial Court was dismissed, but same was partly allowed to the extent of his sentence of imprisonment which was reduced to one already undergone by him—Sentence of fine was also reduced from Rs. 25,000 to Rs.10,000.

2008  YLR  2158   LAHORE-HIGH-COURT-LAHORE

BAHAWAL KHAN VS State

S.9(c)—Appreciation of evidence—Evidence of the prosecution was very convincing and no cogent reason was available to involve accused in the case falsely—Pursuant to a raid conducted by the police, both accused were apprehended and a heavy quantity of narcotics was recovered from them—Such a huge stuff could not be faisted upon falsely—Evidence of recovery in respect of quantity of narcotic substances recovered and sent for chemical analysis was consistently established by two prosecution witnesses—Report of the Chemical Examiner with regard to recovered substance was also positive—Other prosecution witnesses too had supported the prosecution version—Some discrepancies or contradictions, could exist in the statements of prosecution witnesses but they remained consistent on material points—Accused had not alleged their enmity with the police officials nor anything had been brought on record in that respect—Police officials were as good witnesses as anyone else—Accused had stated in their statement under S.342, Cr.P.C. that they had been roped in the case on account of their enmity with two persons but no material had been brought on record to substantiate their said plea—Mere assertion of accused that they were innocent, was of no consequence—Defence version advanced by accused appeared to be an afterthought—Prosecution had proved its case against accused beyond any reasonable doubt—Appeal of accused against their conviction, was dismissed, but as accused were previous non-convicts, taking lenient view, their sentence was reduced from life imprisonment to seven years—Sentence of fine, however would remain intact.

2008  YLR  1987   LAHORE-HIGH-COURT-LAHORE

HAMEED IQBAL VS State

Ss.6 & 9(b)—Appreciation of evidence–Members of the raiding party had deposed on the same lines as indicated in the F.I.K. and proved the recovery of one Kg of opium from the accused—Report of Chemical Examiner was positive for opium, which was an intoxicant—Police witnesses in such cases were as competent as members of general public—Prosecution evidence did not suffer from any such inconsistency or contradiction so as to strike down the prosecution story from its very foundation–Prosecution evidence inspired confidence—Defence version of the accused on the other hand did not inspire any confidence—Accused had not produced any evidence to substantiate his plea, which indicated that he did not possess any evidence in support of his version and the presumption of law of evidence would certainly go against him—Conviction of accused was maintained, but his sentence of imprisonment was reduced to that already undergone by him in circumstances.

2008  YLR  1978   LAHORE-HIGH-COURT-LAHORE

IFTIKHAR AHMAD VS State

Ss.6/9 (b)—Appreciation of evidence—Benefit of doubt—Recovery of 208 grams of heroin from one accused and 250 grams of opium along with 160 grams of heroin from other accused was allegedly effected in the case—Possibility of planting the said narcotics on the accused could not be eliminated—People of the vicinity rarely appear as defence witnesses in such like cases, but in the present case defence witnesses had appeared and supported the defence version and the plea taken by the accused while in juxta position there were only the official witnesses—Police was infamous for planting narcotics against its adversaries in quantities shown as recoveries in the case—Testimony of public witnesses was given weight in circumstances and accused were acquitted on benefit of doubt accordingly.

2008  YLR  1836   LAHORE-HIGH-COURT-LAHORE

TARIQ ABDULLAH VS State

1. 9(c)—Appreciation of evidence—Benefit of doubt—Prosecution had failed to establish with any degree of certainty that the substances allegedly recovered from the possession of accused were indeed narcotic substances—F.I.R. and the memorandum of recovery revealed that the narcotic substances allegedly recovered at the instance of accused were found in a Gattoo/Bag and Charas and opium had been kept in said Bag in two separate shopping bags—F.I.R. as well as memorandum of recovery had further shown that one sample of 50 grams was taken from the shopping bag containing Charas and another sample of 50 grams was obtained from the other shopping bag . containing opium and samples so taken were sent to the Chemical Examiner for their analysis—Report of Chemical Examiner produced in the case had shown that samples analyzed by the Chemical Examiner were 40 in number and the weight of every sample was 200 grams—Record showed that samples analyzed by the Chemical Examiner were not those which were taken immediately upon recovery of substances at the instance of accused—No explanation was available on the record as to how the original two samples weighing 50 grams each had subsequently become 40 samples weighing 200 grams each—Prosecution had completely failed to connect the report of the Chemical Examiner with the substances allegedly recovered at the instance of accused—Prosecution had failed to prove its case against accused beyond reasonable doubt—Conviction and sentence recorded against accused by the Trial Court, were set aside and accused was acquitted of the charge by extending the benefit of doubt to him and was released from the jail.

2008  YLR  1784   LAHORE-HIGH-COURT-LAHORE

MASUD AHMAD VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.2(t)(iii) & 9—Bail, grant of—Definition of “opium” as given in clause (iii) of subsection (t) of S.2 of Control of Narcotic Substances Act, 1997 provided that the ‘poast’ could only be considered, narcotic substance, if same contained 0.2 per cent of morphine—Report of Chemical Examiner revealed no such percentage and it was yet to be determined whether, according to the report of Chemical Examiner, the case against accused fell within the purview of S.9(a) (b) or (c) of Control of Narcotic Substances Act, 1997, which could only be determined by the Trial Court after recording evidence and receiving percentage report from the Chemical Examiner—Accused, was admi­tted to bail in circumstances.

2008  YLR  1636   LAHORE-HIGH-COURT-LAHORE

MOHSAN ALI alias MOHSI VS State

1. 9(c)—Appreciation of evidence–Sentence, reduction in—No contradiction was found in the statements of prosecution witnesses, which could prove fatal to the charge against accused—Trial having been conducted under special law, namely Control of Narcotic Substances Act, 1997, plea of private witnesses having not been taken to witness the recovery, was not available to accused—Even otherwise, on receipt of spy information, it would become difficult for the Police Officers to arrange private witnesses to witness the recovery—Police Officials were equally competent witnesses and safe reliance could be placed on them—Nothing could come on the record to show animosity of any one of the prosecution witnesses against accused—Grounds mentioned by accused for his false implication existed on the file just in the shape of contentions—Findings of the Trial Court with regard to commission of offence by accused, were unexceptional—Accused however, being first offender with no previous criminal history, while maintain­ing his conviction, sentence of 5 years awarded to accused by the Trial Court was reduced to R.I. for 4 years.

2008  YLR  1601   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD IJAZ VS State

Ss. 6 & 9(c)—Appreciation of evidence—One of co-accused who was father of accused, was declared as innocent though it was alleged that he had thrown away the Charas and had made good his escape along with accused and was not apprehended at the spot unlike another co-­accused—No reason had been given for separating the case of co-accused/father of accused—Accused was also not apprehended at the spot and’ the story of decamping was in the same tone as said co-accused who had been acquitted—Besides the police witnesses, none appeared to affirm the throwing away of the Charas by accused at the time when other co-accused was apprehended—Possibility that accused was not involved in the trafficking of the Charas as co-accused, was strong and so was his false involvement—Case .against accused having not fully been established, he was acquitted of the charge.

2008  YLR  1591   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AMIN VS State

Ss. 9(c) & 25—Appreciation of evidence—Sentence, reduction in—Recovery of huge quantity of charas i.e. five K. Gs., by the Police had not been denied by accused—No reason whatsoever had been advanced by accused for his false involvement in the case by the Police nor it had been so suggested to prosecution witness—No doubt the recovery witnesses and Investigating Officer, were employees of the Police, but it was not mandatory in narcotic cases to associate public witnesses at the time of recovery, because same had been dispensed with under S.25 of Control of Narcotic Substances Act, 1997—No material contradictions existed in the statements of the recovery witnesses—Defence of accused that alleged charas belonged to other person was not well founded, because there was no reason for the Police to let off the real accused and implicate present accused in a false case—Chemical Examiner’s report was in positive—Prosecution, in circumstances was able to prove case against accused for having in possession 5 K. Gs. of charas—Accused, in circumstances had rightly been helot guilty under S.9(c) of Control of Narcotic Substances Act,1997—Accused, however, was a patient of Asthma—Sentence of ten years’ R.I. along with fine would meet the ends of justice instead of 14 years’ R.I.—While maintaining conviction of accused, sentence of 14 years’ R.I. was reduced to 10 years’ R.I. and sentence of fine was also reduced from Rs. one lac to Rs. 50,000 accordingly.

2008  YLR  1562   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD YOUNIS VS State

Ss.9(b), 21 & 22—Investigation conducted by an Assistant Sub-Inspector of Pollic—Validity—Police Officer of the rank of an A.S.-I. had raided the accused, recovered the narcotic substance, prepared the recovery memo. and, thus, had practically conducted the entire investigation—Investigations carried out by an A.S.-I. were violative of Ss.21 and 22 of the Control of Narcotic Substances Act 1997, because an officer below the rank of Sub-Inspector of. Police could not seize in any public place and had no authority to search and arrest a person for recovery of narcotics—Said proceedings carried out by Assistant Sub-Inspector of police and recovery memos prepared by him had no legal force and could not lead to conviction—Prosecution had failed to prove its case in a. legal manner—Accused was acquitted in circumstances.

2008  YLR  1465   LAHORE-HIGH-COURT-LAHORE

RAHAM DAD VS State

1. 9(b)—Appreciation of evidence—Section 103, Cr.P.C. having been excluded by section 25 of the Control of Narcotic Substances Act, 1997, non-association of public witnesses in the recovery proceedings was not fatal to the prosecution case—Police officials were as good witnesses as others and their statements could not be discarded merely on account of their being police employees—Recovery evidence was consistent and confidence inspiring—Witnesses of recovery had no enmity with the accused to suggest false implication—Contradictions pointed out in prosecution evidence were not material—Defence evidence was also immaterial—Conviction and sentence of accused were upheld in circumstances.

2008  YLR  1444   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD KHALID VS State

1. 9(c) —Appreciation of evidence—Prosecution witnesses had no enmity with the accused for his false implication and their testimony was corroborated by the report of Chemical Examiner—Accused was young man of 23 years of age and he had no previous criminal history—Narcotic recovered from accused was “Charas” which comparatively was less dangerous—Accused had faced the agony of a protracted trial and served out more than half of his sentence—Conviction of accused was maintained and his sentence was reduced to the term of imprisonment already undergone by him in circumstances.

2008  YLR  1424   LAHORE-HIGH-COURT-LAHORE

AMANAT ALI VS State

S.9(b)—Appreciation of evidence—Sentence, reduction in—No such’ inconsistency or contradiction in the prosecution evidence was appearing so as to strike down the prosecution story from its very foundation—Prosecution witnesses had fully proved the conducting of raid in which 145 grams of “Charas” and 8 grams of heroin were recovered while the accused had managed to escape from the spot–police officials in such cases were as good witnesses as members of general,. public—Accused had failed to explain any enmity of the Investigating Officer with him so as to falsely implicate him in the case—Defence plea of accused was unbelievable and the same did not inspire confidence—Report of Chemical Examiner was positive—Conviction, of accused was consequently maintained—Accused had not been apprehended at the spot and under the peculiar circumstances of the case and in the interest of safe administration of justice his sentence of five years’ R.I. was reduced to the imprisonment already undergone by him.

2008  YLR  1358   LAHORE-HIGH-COURT-LAHORE

PAYAND MUHAMMAD VS State

1. 9(c)—Appreciation of evidence—Prosecution witnesses who were public servants had no enmity or ill-will against the accused so as to falsely implicate him in the case—Allegation against the accused regarding the possession of two kilograms of “Charas” had been established on record and Defence Counsel had rightly not challenged the conviction—Substance recovered from the accused was not in huge quantity and he had no antecedents or credentials of a seller of narcotics to his credit—Present case appeared to be the first case registered against the accused with the local police and he deserved leniency in his sentence—Conviction of accused was upheld but his sentence of 14 years’ R.I. was reduced to 10 years’ R.I. in circumstances with reduction in his fine as well.

2008  YLR  1337   LAHORE-HIGH-COURT-LAHORE

REHMAT ULLAH  VS State

1. 9(c)—Appreciation of evidence—Police witnesses, credibility of—Police officials are as good witnesses as the other witnesses.

2008  YLR  1337   LAHORE-HIGH-COURT-LAHORE

REHMAT ULLAH  VS State

1. 9(c)—Appreciation of evidence—Sentence, reduction in—Eye-witnesses had fully supported the F.I.R. version—Accused when asked to stop by the police indulged into a joint venture and accelerated speed of the car and were ultimately captured and found possessing five Kilograms of “Charas” each—Arrest of accused on the spot was sufficient to exclude their false implication in the case—Prosecution witnesses had no reason to involve the accused wrongly in a case of heinous nature—Since registration of the case, accused had made no effort to prove their innocence through any measures—Non-­joining of public witnesses in recovery proceedings was not fatal to the prosecution case, because section 25 of the Control of Narcotic Substances Act, 1997, had clearly excluded the application of section 103, Cr. P. C. to the cases under the said Act—Police witnesses were as good witnesses as the other witnesses—Presumption of truth was to be attached to the allegations until contrary was proved—Statements of witnesses were in line with the prosecution version—Conviction of accused was upheld in circumstances—Accused were not previous convicts and were never involved in the past in any case of like nature—Sentence of accused was reduced to seven years’ R.I. each with reduction in fine, which was sufficient to meet the ends of Justice.

2008  YLR  1320   LAHORE-HIGH-COURT-LAHORE

RAHIM DAD through Sultan Jan VS State

1. 9(c)—Appreciation of evidence—Sentence, reduction in—Nothing being available to suggest any bias against the official witnesses, their evidence had to be given credit—Recovery of “Charas” was effected from a place where the accused had been visiting—Conviction of accused was maintained, but the substantial part of his sentence of five years’ R.I. having already been undergone by him, the same was reduced to one already undergone for safe administration of criminal justice—Appeal was disposed of accordingly.

2008  YLR  1268   LAHORE-HIGH-COURT-LAHORE

ALLAH DAD VS State

S.9(N—Appreciation of evidence—Sentence, reduction in—Prosecution witnesses were subjected to lengthy and searching cross-examination, but both of them remained steadfast and nothing was in their statements to doubt their credibility or to show that said witnesses had any malice or grouse against accused to falsely implicate him in the case—No doubt, both the witnesses were Police Officials, but a Police Official was as good a witness as any other person and his statement could safely be relied upon if same was not tainted with any malice or mala fide—Evidence of both the recovery witnesses was persuasive in nature and rang true—Report of Medical Board which medically examined accused had shown that accused was only 16/17 years of age at the time of occurrence—Record of the case was absolutely silent about any criminal history of accused and he was the first offender—Keeping in view the youth of accused, lenient view was taken qua the sentence of accused—While dismissing appeal, sentence of imprisonment of accused’ was reduced to two years’ R.I. with benefit of S.382-B Cr. P. C.

2008  YLR  1255   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD IQBAL VS State

S.426—Control, of Narcotic Substances Act (XXV of 1997), S.9(b)—Suspension of sentence—Admittedly nothing had been recovered from the possession of accused who had been implicated only on a disclosure made by a co-accused during police custody—Prosecution evidence was that the accused was seen selling narcotics to his co-accused, but both of them had managed to slip away—Neither any passing of money on that occasion was seen, nor the narcotic substance being sold at that time was specified—Culpability of accused, thus, required serious re-consideration—Sentence of imprisonment of accused was also relatively short and main appeal was not likely to be fixed for regular hearing in the near future—Sentence of accused was suspended in circumstances and he was admitted to bail accordingly.

2008  YLR  1224   LAHORE-HIGH-COURT-LAHORE

FARZAND ALI VS State

Ss. 6/9—Appreciation of evidence—Sentence, reduction in—No mala fides had been alleged in the case which stood established against the accused beyond doubt and his conviction was maintained—However, in view of the safe administration of criminal justice sentence of accused was reduced from five years’ R.I. to three years’ R.I. with reduction in fine also—Appeal was disposed of accordingly.

2008  YLR  1211   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD RAFIQ VS State

1. 9(c)—Appreciation of evidence—Accused was nabbed at the spot with huge quantity of “Charas” and “opium” was recovered by the raiding party—Recovery witnesses, though police officials, were. not shown to have any enmity or grudge with the accused and they were as good witnesses as private persons—Reports of the Chemical Analyst regarding the narcotics were positive, which were not controverted by the accused—Accused had not been able to explain his position about being in possession of huge quantity of narcotics at the time of occurrence—Impugned judgment did not suffer from any illegality like misreading or non-reading of material evidence—Conviction and sentence of accused were upheld in circumstances.

2008  YLR  1199   LAHORE-HIGH-COURT-LAHORE

ABDUL GHAFFAR VS State

1. 9(c)—Appreciation of evidence—Sentence, reduction in—Huge quantity of “Charas” was recovered from the village pond on the pointation of accused—Accused was apprehended at the spot, but his co-accused had run away by throwing a shopper containing one K.G. and 100 grams of “Charas”-No reason was available for false implication of accused by the complainant by letting off the real culprits—Conviction of accused was, therefore, maintained—Two senior police officers, however, had found in investigation that the accused was not dealing in the narcotics himself, but he had arranged a house on rent for the co-accused and that he was not an addict—Sentence of 14 years’ R.I. of accused was reduced to 7 years’ R.I. in circumstances.

2008  YLR  1180   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SALEEM VS State

1. 9(b)—Appreciation of evidence—Sentence, reduction in—Only 300 grams “Charas” was recovered from the accused—Keeping in view the socio economic conditions possibility was that the same might have been kept by the accused for his personal consumption—Prosecution witnesses were all police officials—Small quantities of “Charas” were also planted by the local police because of their ulterior motives—Accused had already suffered the rigours of the trial and detention in jail for a sufficiently long time—Conviction of accused was maintained, but his sentence of two years R.I. was reduced to imprisonment already undergone by him with substantial reduction in fine in circumstances.

2008  YLR  1164   LAHORE-HIGH-COURT-LAHORE

TOTI KHAN VS State

S.9(c)—Appreciation of evidence—Police witnesses—Police officials are as good recovery witnesses as any other public witnesses unless they are proved to have animus against the accused for his false implication.

2008  YLR  1164   LAHORE-HIGH-COURT-LAHORE

TOTI KHAN VS State

S.9(c)—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Sentence reduction in—Recovery witnesses had made a consistent statement that on spy. information accused was apprehended near a graveyard and 4 kilograms opium was recovered from him—Report of Chemical Examiner with regard to the sample sent to him was positive—No enmity of the police witnesses with the accused was suggested—Association of public witnesses with recovery proceedings under S.103, Cr. P. C. had been dispensed with by virtue of S.25 of the Control of Narcotic Substances Act, 1997—Police witnesses were as good’ recovery witnesses as other witnesses unless they were proved to have any animus for false implication of accused—Defence evidence was simply a hearsay evidence—Conviction of accused was upheld in cir­cumstances—Accused was a first offender and his sentence of fourteen years R.I. was reduced to ten year’s R.I. to meet the ends of justice.

2008  YLR  1141   LAHORE-HIGH-COURT-LAHORE

NISAR AHMAD GHAURI VS State

103. 9(c)—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Accused had led to the recovery of twenty kilograms of Charas and four kilograms of opium after making a disclosure—Proceedings initiated by the police were bona fide and genuine—Application of Section 103. Cr. P. C. had been excluded in cases registered under the Control of Narcotic Substances Act, 1997, by its section 25—Accused was not previously known to the police officials who had absolutely no ill will, grudge or malice against him to wrongly involve him in such a serious case, and were as good witnesses as other witnesses—Defence theory propounded by accused in his statement under section 342 Cr. P. C. did not ring true and was devoid of merits—Material facts of the case were not disputed—Petty discrepancies in the statements of witnesses could be easily brushed aside—Presumption of truth was attached to the allegations under section 29 of the Control of Narcotic Substances Act,1997 until contrary was proved—Accused had failed to establish his innocence—Delay simpliciter in dispatching parcels to the chemical Examiner could not annihilate the evidentiary value in view of genuineness of the recoveries being doubtless—Police could not afford to bear the cost of huge quantity of narcotics recovered from the accused—Conviction and sentence of accused were upheld in circumstances.

2008  YLR  1102   LAHORE-HIGH-COURT-LAHORE

TASAWAR HUSSAIN VS State

S.9(b)—Appreciation of evidence—Recovery of 450 grams of Charas—Proof—Benefit of doubt—Scope—Accused was already in custody of police when he allegedly got the narcotics recovered from a public place—No private witnesses were associated with recovery proceedings and according to evidence parcel was received by Chemical Examiner one day prior to its dispatch by Moharrar—Effect—Way and place from where prosecution recovered the Charas on the pointation of accused and difference of dates in the statement of prosecution witness who transmitted the parcel and certificate of Chemical Examiner in the report, led to the conclusion that case against accused was of doubtful nature—High Court extending benefit of doubt to accused, set aside conviction and sentence awarded by Trial Court and acquitted him.

2008  YLR  1077   LAHORE-HIGH-COURT-LAHORE

ANSAR ALI VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 51—Bail, grant of—Accused being no more required for the purpose of investigation etc., his confinement in jail would not serve any cause of prosecution—Offence was not covered by the prohibitory clause of S.497 Cr. P. C. read with S.51 of Control of Narcotic Substances Act, 1997—Whether accused had committed said offence; and whether the prosecution was armed with evidence or not would be seen by the Trial Court—Would not be appropriate at bail stage, to deny the concession of bail in the circumstances to accused as a punishment–Accused was admitted to bail, in circumstances.

2008  YLR  1055   LAHORE-HIGH-COURT-LAHORE

ASAD HAMEED KHAN VS State

S.9(c)—Appreciation of evidence—Sentence reduction in— “Charas” weighing 4 KG was recovered from the accused—Witnesses of recovery were all public servants who had no background of any ill-will or bitterness against the accused so as to falsely implicate him in a case of this nature—Statements of the said witnesses were not only consistent, but also inspired confidence—Conviction of accused was maintained in circumstances—Sentence of 10 years’ R.I. awarded to accused seemed ta=be excessive, keeping in view the quantity of the recovered narcotic, sentence was reduced to five years’ R.I.

2008  YLR  1047   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AKRAM VS State

S.9(b)—Appreciation of evidence—“Charas” weighing 500 grams and heroin weighing 300 grams had been recovered from the house of accused during a raid conducted by the police—No ulterior motive on the part of police for false implication of accused had been established on record—Conviction of accused was, therefore, maintained—Accused had already suffered rigors of trial and a part of his sentence of four years’ R.I. and he was unable to engage a Counsel on his behalf in appeal before High Court—Sentence of imprisonment awarded to accused by Trial Court was reduced to the term already undergone by him in circumstances.

2008  YLR  1003   LAHORE-HIGH-COURT-LAHORE

SHAHID ISHAQ VS State

1. 9(b)—Appreciation of evidence—Sentence, reduction in—All witnesses in the case were Police personnel—Private witnesses were available, but were not joined—Status of accused and the version of him during cross-examination and during his statement under S.342, Cr. P. C., could have basis keeping in view rural life in the country and the feudal conspiracies—Accused having already suffered the rigors of trial and incarceration ever since his arrest after he was taken into custody when he was convicted and also keeping in view order whereby he was refused the benefit of suspension of sentence by the High Court, his sentence was reduced to one already undergone while maintaining the quantum of fine and sentence in lieu thereof.

2008  YLR  994   LAHORE-HIGH-COURT-LAHORE

SAEED IQBAL VS State

1. 9(b)—Appreciation of evidence—Sentence, reduction in—Recovery effected from accused was of very small quantity i.e. 150 grams of charas—Possibility that same was for his own consumption was there—Accused had suffered the rigours of trial and was released on bail after more than one year he was taken into custody—Accused in circumstances, had undergone a part of the sentence—All the witnesses were official witnesses, the raid was conducted by. A.S-I. who had partly investigated the case which was an irregularity in view of the S.21 of the Control of Narcotic Substances Act, 1997—Order of conviction, in circumstances, was upheld, but sentence was reduced to one already under­gone—Sentence of fine,’ was also upheld.

2008  YLR  989   LAHORE-HIGH-COURT-LAHORE

ZAFAR IQBAL VS State

1. 9(c)—Appreciation of evidence—Sentence, reduction in—Raid was conducted after proper verification and the accused was caught red-handed with opium weighing two kilograms in his possession–Report of the Chemical Examiner was positive—Mere allegation of mala fide on the part of police was of no avail as the same was not proved on record by the accused—Record did not show any enmity of the police with the accused—Recovery of opium from accused, thus, stood proved—Conviction of accused was consequently maintained—Accused was a young man and was not a habitual offender—Accused had already undergone major portion of his sentence of seven years’ R.I.—Sentence of accused was reduced to the imprisonment already undergone by him in circumstances.

2008  YLR  985   LAHORE-HIGH-COURT-LAHORE

ZAHID IQBAL VS State

1. 9(c)—Appreciation of evidence—Recovery memo. had been prepared at the police station after registration of the case and not at the spot and thus the recovery itself had no value—Recovery witness had admitted that his. statement was recorded at the police station which had made the entire proceedings doubtful—Place of recovery was also not mentioned in the recovery memo.—Investigating Officer had not asked any one of the 20/25 persons to join the recovery proceedings who had gathered there-Police Officer had himself assumed the role of an investigator and made his subordinates to testify to the factum of recovery, which was an unholy practice of the police and such mode of investigation inspired no confidence—Citing of police witnesses was essential when independent people were not present during recovery proceedings—Prosecution version was contaminated with several impurities and illegitimate, whereas defence version put forth by accused under Ss.342 and 340(2), Cr. P. C. was supported by the defence witness—Accused was acquitted in circumstances.

2008  YLR  797   LAHORE-HIGH-COURT-LAHORE

Mst. KHALIDA PARVEEN VS State

S.9(b)—Appreciation of evidence—Council for accused instead of arguing appeal on merits, conceding the impugned judgment, and prayed that sentence awarded to accused by the Trial Court be reduced to one already undergone by her to which State counsel had no objection—Accused was granted bail six months after her arrest and at the time of pronouncement of judgment, accused was again sent to jail to serve her imprisonment and was behind the bars since then—Sentence of imprisonment already undergone by accused would meet the ends of Justice—In view of facts and circumstances of the case, maintaining conviction of accused, sentence was reduced to the one already undergone by her.

2008  YLR  693   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD MUNIR VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9—Bail, grant of—Further inquiry—Accused had no criminal history to his credit as he was not involved in any other similar case—Alleged recovered “Garda Charas” was not narcotic in its entirety and the chemical examiner had not mentioned percentage of narcotic substance, therein, which had made the case of accused that of further inquiry—“Garda” was dust and its meagre quantity allegedly recovered from accused would not make him a trafficker/peddler of contraband—Offence charged was not covered by prohibitory clause of S.497, Cr. P. C. and in absence of any allegation of abscondence or tampering with prosecution evidence by accused, bail was not to be withheld as of punishment, especially when inspite of submission of challan, no prosecution witness had been examined diminishing the chances of conclusion of the trial in the near future—Accused would face the sentence, if ultimately convicted by the Trial Court and for the time being his further detention would not advance prosecution case any more—Accused having made out case for grant of bail, he was admitted to bail, in circumstances.

2008  YLR  543   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD MUMTAZ VS State

S.9(b)—Appreciation of evidence—Sentence, reduction in—Charas of 110 grams was recovered from the accused and both prosecution witnesses, who witnessed recovery proceedings, had supported case of prosecution—Nothing was on record to show that said prosecution witnesses had any enmity against accused to falsely” involve him in the case—Evidence of said witnesses inspired confidence and rang true, which could be relied upon to uphold the conviction of accused—Substance recovered from accused was only 110 grams charas and record of the case was silent with regard to any criminal history of accused—Accused had already undergone quite a reasonable period as under-trial prisoner as well as a convict—Accused was facing the agony of the case since 2005—While dismissing appeal of accused, sentence of imprisonment of accused was reduced to the period already undergone by him and amount of fine was also reduced accordingly.

2008  YLR  538   LAHORE-HIGH-COURT-LAHORE

DILDAR VS State

2008  YLR  385   LAHORE-HIGH-COURT-LAHORE

GHUNCHA GULL VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—“Charas” weighing ten kilograms was allegedly recovered from underneath the seat which was behind the seat of the accused who was driving the bus—Despite the lapse of eleven months challan had not been submitted in the Court—None from the passenger bus was cited as a witness of recovery of narcotics—Presence of passengers in the bus was not even mentioned in the F.I.R.—Although owner of the bus was shown as accused in the F.I.R., yet he was never arrested, rather the bus had been given to him on “Superdari “—Despite the bar contained in S.51 of the Control of Narcotic Substances Act, 1997, Court was competent to grant bail in cases found fit for bail after taking into consideration the overall facts and circumstances—Case being fit for grant of bail, accused was admitted to bail accordingly.

2008  PLD  164   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SHAUKAT VS State

1. 9(c)—Appreciation of evidence—Accused was caught red-handed and from his possession 4 kilograms of heroin, 9 kilograms and 30 grams of opium was recovered–:-Samples were sent to Chemical Examiner for analysis and his report was positive—Recovery witnesses were cross-examined at length, but their testimony was not shaken—No evidence was led in defence to prove the plea of false implication—Conviction could be recorded on the statement of one witness, if his statement was truthful—Law did not require that all the witnesses who witnessed the recovery were to be produced in court—Police Officer and Assistant Director in A.N.F. both witnessed the recovery and signed the recovery memo—Huge quantity having been recovered, hence question of false implication by planting the narcotics was ruled out—Senior Officer who conducted the investigation, had no ill-will or animosity against accused—Accused who’ was in possession of quantity more than 10 kilograms was not entitled to reduction in sentence—Prosecution having fully proved its case beyond reasonable doubt, there was no ground for interference.

2008  PCrLJ  1342   LAHORE-HIGH-COURT-LAHORE

AISH BAHADUR VS State

1. 426—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Suspension of sentence—Accused was not apprehended at the spot—Brother of accused, who was also tried along with accused in the case, was acquitted by the Trial Court—Evidence against accused also required reconsideration—Sentence of accused was suspended and he was released on bail.

2008  PCrLJ  754   LAHORE-HIGH-COURT-LAHORE

KHALID HUSSAIN alias KALA VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail, grant of—Further inquiry—Accused though was named in F.I.R., but no evidence was on record against him regarding sale or purchase of Charas—No independent private witness was associated by the police during the recovery proceedings, which had made the case of accused one of further inquiry—Accused was behind the bars since his arrest and his further detention in the judicial lock up would not serve any purpose—Maximum punishment of the offence was seven years, which did not fall within the prohibitory clause of S.497 Cr.P.C.—Accused was admitted to bail, in circumstances.

2008  PCrLJ  751   LAHORE-HIGH-COURT-LAHORE

Sh. ZAHID JAVED VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 21 & 25—Bail, refusal of—Contention of the counsel for accused that case against accused ought to be disbelieved merely for the reason that raid had been conducted by an A.S.-I. in violation of the Control of Narcotic Substances Act, 1997 had no merit—F.I.R. itself reveals that after conducting raid and effecting recovery of the contraband, the matter had been referred to the Incharge Investigation of the concerned police station for further investigation—Provisions of S.25 of Control of Narcotic Substances Act, 1997, provided a complete answer to objection that while effecting recovery, provisions of S.103, Cr.P.C. had not been followed—Trial Court was to see as to why delay had been occasioned in dispatching the sealed parcels to the Chemical Examiner and what would be its effect—Contention of counsel for accused that C.I.A. personnel could not carry out a raid, was also devoid of any merit inasmuch as nothing was in law which stopped said personnel to enforce the Control of Narcotic Substances Act, 1997—Accused stood involved in as many as sixteen criminal cases out of which at least one dozen were drug related cases—Bail was refused in circumstances.

2008  PCrLJ  750   LAHORE-HIGH-COURT-LAHORE

NAJABAT ALI SHAH VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.2(d)(ii) & 9(c)—Bail, grant of—Further inquiry—Alleged material recovered from accused was sent to the Chemical Examiner and. according to his report, entire recovered material was “Shang”—Contention of counsel for accused that “Shang” was not hemp as defined in S.2(d)(ii) of Control of Narcotic Substances Act, 1997, had made the case of accused one of further inquiry—Accused was behind the bars since long and his further detention in the lock-up would not serve an beneficial purpose—Accused was admitted to bail, in circumstances.

2008  PCrLJ  691   LAHORE-HIGH-COURT-LAHORE

BASHARAT alias KALA VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 14, 15 & 51—Bail, refusal of—Accused was nominated in the F.I.R.—Role ascribed to accused was that he was holding a shopping bag containing the alleged 5 Kgs. Charas—Case of accused was not at par with co-accused who had already been released on bail—Sufficient grounds were available for believing that accused was connected with the alleged crime—Offence against accused fell under the prohibitory clause of S.497, Cr.P.C. and in view of prohibition contained in S.51 of Control of Narcotic Substances Act, 1997, accused could not be released on bail—Bail petition was dismissed.

2008  PCrLJ  679   LAHORE-HIGH-COURT-LAHORE

GUL AFSAR KHAN VS State

Ss. 9(c), 14 & 15—Appreciation of evidence—Report of Chemical Examiner in respect of 23 Kgs. Charas sent for chemical examination, was positive—Prosecution witnesses had fully supported case against accused—Counsel for accused had not been able to indicate any material discrepancy in the statements of prosecution witnesses—Even in the statement under S.342, Cr.P.C., accused had not denied the recovery of such huge quantity of Charas from the shop in question—Accused had not urged any ulterior motive against the police or the prosecution—Cumulative effect of the evidence on record was sufficient to pinpoint accused who had been proved to have been directly concerned with the offence—Appreciation of evidence conducted by the Trial Court did not suffer from any procedural or factual fault—No view different from the one expressed by the Special Judge could be taken—Sentences passed by the Trial Court against accused, however must be construed to run concurrently and the Trial Court was not justified in omitting to specify the concurrent nature of sentences.

2008  PCrLJ  674   LAHORE-HIGH-COURT-LAHORE

FAYYAZ MASIH VS State

1. 426—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Suspension of sentence—Petition for—Allegation against accused was that 400 grams of Charas was recovered from him—Accused, who was convicted and sentenced for six months, had served out imprisonment for one month and 16 days—Accused had already been given the benefit of S.382-B, Cr.P.C.—Sentence awarded to accused being short, he was enlarged on bail, accordingly.

2008  PCrLJ  663   LAHORE-HIGH-COURT-LAHORE

ALI RAZA alias RAZA HAIDER VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51—Bail, grant of—Further inquiry—Record had established that case against accused was result of mala fide—Accused were also got involved in another criminal case though they were not named as accused in that case—Accused were arrested in that case, but were admitted to bail and the Court, while deciding bail application in that case, gave clear finding that case was registered against accused as a result of mala fide—Recovery memo. in the case was without F.I.R. number and alleged recovery had not been effected at the instance of either of accused persons and Charas in question was taken into possession from the courtyard and none of accused was apprehended at the spot—Validity—Law was not to be stretched in favour of prosecution and bail could not be withheld as punishment—Benefit of doubt arising, if any, could be given even at bail stage—Accused was presumed to be innocent till he was proved guilty beyond reasonable doubt by the prosecution—Notwithstanding the bar contained in S.51 of Control of Narcotic Substances Act 1997, bail could be granted to accused—Prima facie reasonable grounds were available to believe that the guilt of accused was a matter of further inquiry falling within the meaning of S.497(2), Cr.P.C.—Accused were admitted to bail, in circumstances.

2008  PCrLJ  645   LAHORE-HIGH-COURT-LAHORE

MAZHAR IQBAL VS State

1. 9(c)—Appreciation of evidence—Benefit of doubt—Recovery had categorically been denied by the accused in his statement under S.342 Cr.P.C.—Contradictions were found in the statements of prosecution witnesses and private persons were not associated during recovery proceedings—Chemical Examiner’s Report showed that the packet which was sent to the Chemical Examiner did not contain heroin—Said report of the Chemical Examiner and wrong observations of the Trial Court that accused never denied recovery, could not be over-looked—Such facts having cast a serious doubt on the prosecution version it could not be said that it had succeeded in proving its case beyond any shadow of doubt—Impugned order of the Trial Court whereby accused was convicted and sentenced, was set aside, and accused was released.

2008  PCrLJ  562   LAHORE-HIGH-COURT-LAHORE

DILDAR VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail, grant of—Accused was a petty street hawker and was addict of Charas, but had no criminal history to his credit as he was not earlier involved in any such case—Meagre quantity of Charas weighing 140 grams allegedly recovered from accused, would not make him trafficker/transporter of narcotics and he being himself an addict, must have kept such quantity for his own consumption—No allegation of sale of Charas by accused was levelled as no purchaser was arrested by the police along with him—Accused remained on physical remand, but nothing except said referred Charas was recovered from him—Person of accused was no more needed for investigation purposes and his further detention would not advance prosecution case any more—Offence charged was not covered by prohibitory clause of S.497, Cr.P.C.—Despite submission of challan trial of the case had not commenced and there was no probability of its conclusion in near future—In absence of any allegation of abscondence or tampering with the prosecution evidence by accused, bail was not to be withheld as of punishment and he would face the sentence, if ultimately he was convicted by the Trial Court on conclusion of the case—Accused having made out a case for his post-arrest bail pending his trial, he was allowed bail.

2008  PCrLJ  550   LAHORE-HIGH-COURT-LAHORE

KHURAM SHAHZAD VS State

3. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9, 25 & 51—Bail, refusal of—Factually 3.5 kilograms opium powder was recovered from the possession of accused on his personal search by the complainant and other officials out of which 50 grams was separated and sent to the Chemical Examiner for analysis—Report of Chemical Examiner had shown that sample sent for analysis tested positive for opium as well as for alkaloid–Keeping in view the report of the Chemical Examiner as well as the quantum of narcotic recovered from accused, it could be safely said that the offence attracted the provisions of Ss.6 & 9 of the Control of Narcotic Substances Act,1997—Provisions of S.103, Cr.P.C. had been expressly excluded from applicability in cases of narcotic substances by virtue of S.25 of Control of Narcotic Substances Act, 1997—Non-compliance with the provisions of S.103, Cr.P.C., thus, could not be considered a valid ground for extending the concession of bail to accused—Accused had not been able to provide any legal justification for keeping such a huge quantity of narcotic in his possession—Bar contained in S.51 of Control of Narcotic Substances Act, 1997 to the grant of bail was attracted with full vigour in the case—Concession of post-arrest bail could not be extended to accused as prima facie, ample incriminating material was available on record to connect accused with crime alleged to have been committed by him.

2008  PLD  159   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SABIR VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(b) & 51—Bail, refusal of—Order sheet of the Trial Court had shown that after framing of charge, prosecution was directed to adduce its evidence, but on three occasions evidence of prosecution was not available–Subsequently two prosecution witnesses were present, but their statements could not be recorded in view of request for adjournment made by accused—On various dates prosecution witnesses were present, but their statements could not be recorded as for various reasons adjournments were sought by the accused—Said orders of the Trial Court had shown that blame of delay could not be attributed to the prosecution, whereas conduct of accused was also blameworthy and bail application could not be allowed on ground of delay—Even otherwise after framing of charge and at stage of recording of evidence, normally bail was not granted in narcotics cases—Section 497 Cr.P.C. required to be read in conjunction with S.51 of Control of Narcotic Substances Act, 1997—Bail application was dismissed in circumstances.

2008  MLD  1549   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD MUDASSAR VS State

1. 9(c)—Appreciation of evidence—Accused admittedly was less than fifteen years of age at the time of occurrence—DSP in investigation had found that the recovered “Charas” did not belong to accused but to another person, who was neither arrested nor joined in investigation—Instead of submitting final report in the light of the said finding of the DSP, accused was challaned on the report of S.H.O. who was accused of accepting bribe of one lac rupees from the aforesaid another person and letting him off–Finding of DSP had demolished the prosecution story with regard to the manner and place for the alleged raid—Three other public witnesses had also vouchsafed for the innocence of accused—Conviction of accused merely on the statements of two police officers of the raiding party, in circumstances, was not in accord with the safe administration of justice—Accused was acquitted accordingly.

2008  MLD  1502   LAHORE-HIGH-COURT-LAHORE

AMANAT ALI VS State

S.9(b)—Appreciation of evidence—Sentence, reduction in—Out of four accused persons one had expired during pendency of the case, second was murdered, third was acquitted and fourth was found guilty and was sentenced—Main argument of counsel for the said accused was about the illegal raid into his premises and it was contended that it had vitiated the entire trial and that there was every possibility that the heroin and charas were planted because accused was not apprehended at the spot—Counsel for accused had further contended that ‘he had already suffered the rigors of trial and incarceration sufficiently and keeping in view the quantum of narcotics, his sentence be redeemed—Held, in view of overall circumstances of the case and the last submission of the counsel for accused, it would serve the interest of justice if his sentence was reduced to one already undergone—Orders were made accordingly—Rest of the order of the Trial Court would remain intact.

2008  MLD  1466   LAHORE-HIGH-COURT-LAHORE

GHULAM ABBAS alias BASU VS State

1. 9(b)—Appreciation of evidence—Prosecution had fully proved the recovery by producing the same in court which was exhibited—Chemical report was positive—Non-production of daily diary of the Police Officer, was not fatal to prosecution case, in circumstances—Provision of S.103 Cr.P.C. having been specifically excluded by S.25 of the Control of Narcotic Substances Act, 1997, contention that non-compliance of provision of S.103 Cr.P.C. would earn acquittal to accused was repelled—Delay in sending parcel, would not affect the prosecution case in absence of any suggestion from accused about its having been tampered with in any manner—Contradictions pointed out in the statements of prosecution witnesses, being trivial in nature, ‘evidence of said witnesses could not be rejected on such-like discrepancies, which were bound to occur, when such statements were recorded after some period of time—Evidence led in defence was of no help to accused as defence witness was real brother of accused who had not appeared before any official during investigation to vouchsafe innocence of accused—Prosecution in circumstances had proved its case against accused beyond reasonable doubt—Conviction and sentence awarded to accused by the Trial Court, were upheld, in circumstances.

2008  MLD  1319   LAHORE-HIGH-COURT-LAHORE

Mst. GHULAM SAKINA VS State

S.9(c)—Appreciation of evidence—Trial Court had ignored all lapses on the part of prosecution witnesses—Major discrepancies and contradictions appearing in prosecution evidence had clearly suggested that the case had been prepared at the police station—Police did not effect the raid immediately after getting the information, although they had no formidable hurdle in their way—Investigating Officer, despite having sufficient time to obtain search warrants under S.20 of the Control of Narcotic Substances Act, 1997, did not do so far the reasons best known to him—Animosity between the accused and the local public existed and the police being gravely offended with the accused, had the motive to build up a false case against her—Reasonable possibility of the defence version being true could not be excluded from consideration—Case was swollen with a large number of real doubts—Accused was acquitted in circumstances.

2008  MLD  932   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AKRAM VS State

1. 426—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 15—Suspension of sentence—Accused could not be deemed to have acquired knowledge of concealment of narcotics by co-accused—Accused was simply driving a motorcycle—No recovery was effected from his person—Conviction, prima facie, had been based on presumption—Accused had made out a case for suspension of sentence—Sentence of accused was suspended accordingly.

2008  MLD  925   LAHORE-HIGH-COURT-LAHORE

GHULAM HUSSAIN VS State

S.9(c)—Reduction ‘in sentence due to sickness and old age—Appeal was not pressed on merits and only reduction in sentence was sought—Accused, according to the report of Jail Medical Officer, was 70/80 years old and was suffering from involuneier continuous tremors of whole head and both hands with unstable gait and he was hypertensive with weak sight of his both eyes—Accused, thus was an extremely sick and old person—Conviction of accused was consequently maintained, but his sentence of ten years’ R.I. was reduced to the imprisonment already undergone by him in circumstances—Sentence of fine of accused was also remitted.

2008  MLD  891   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SHARIF VS State

Ss. 9(c) & 25—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4—Appreciation of evidence—Sentence, reduction in—Recovery of Charas and opium had been proved by prosecution by producing prosecution witness who was posted at C.I.A. Staff at relevant place and said prosecution witness was corroborated by another recovery witness—Defence could not create any dent in the evidence of said prosecution witnesses in cross-examination—Case property/Charas and opium were produced in the court in duly sealed parcels—Reports of the Chemical Examiner tendered in evidence were positive—Accused persons had not produced any evidence in support of their plea that they had been falsely involved in the case by Investigating Officer at the instance of one who was inimical to one of accused persons after taking considerable gratification from said person—Validity—Grievance of accused persons that Investigating Officer had not associated any private person with the recovery proceedings, was not sustainable because S.25 of Control of Narcotic Substances Act, 1997, had dispensed with the association of the private person in the matters pertaining to recovery of narcotics—Prosecution, in circumstances, was able to prove the case against accused persons beyond any shadow of doubt—One Kg. Charas and one Kg. opium of the alleged total narcotics having been proved to be Charas and opium, while upholding the conviction, appeal filed by accused persons was partly allowed qua the sentence—Sentence of imprisonment for life each awarded to accused persons was reduced to 10 years’ R.I.—Sentence of fine, however was maintained.

2008  MLD  802   LAHORE-HIGH-COURT-LAHORE

RAHMAT ULLAH KHAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Nothing was recovered from the accused—Allegation against accused was that he had led the police party to the place where co-accused allegedly involved in the business of sale of narcotics was present and on seeing the police he fled away, while throwing 1300 grams of “Charas”—Question as to how far the accused was liable in the circumstances for the offence falling under S.9(c) of the Control of Narcotic Substances Act, 1997, called for further inquiry—Accused was admitted to bail accordingly.

2008  MLD  788   LAHORE-HIGH-COURT-LAHORE

RAHAM DAD VS State

Ss. 9(c) & 9(b)—Appreciation of evidence—Accused had been apprehended on the spot along with the substance weighing 13 kilograms in the shape of different Chittars/slabs, which looked like “charas”—Recovery witnesses had fully supported the prosecution case and although they were police officials but they had no enmity with the accused to suggest false implication and they were as good witnesses as others—Prosecution witness had stated that sample “charas” of 100 grams was separated only from one Chittar and no evidence was available that the rest of the substance recovered at the instance of accused was also “charas”—Conviction of accused under S. 9(c) of the Control of Narcotic Substances Act, 1997, was consequently altered to S.9(b) of the said Act and his sentence of imprisonment for life was reduced to seven years’ R.I. with fine in circumstances.

2008  MLD  710   LAHORE-HIGH-COURT-LAHORE

ZAHID HUSSAIN VS State

S.9(c)—Appreciation of evidence—Sentence, reduction in—Accused who was sentenced to imprisonment for life and fine of Rs.3,00,000, did not challenge his conviction, but had prayed for reduction of his sentence—Accused was a young man and was a first offender—Proviso to S.9(c) of Control of Narcotic Substances Act, 1997 had indicated the sentencing scheme according to which if the quantity of narcotic substance recovered would exceed ten kilograms, then punishment for the offender could not be less than imprisonment for life—Said proviso had also suggested that for a quantity of narcotic substance less than ten kilograms, sentence to be awarded to the offender could be less than imprisonment for life—In the present case, recovered substance weighed five kilograms and accused was a young man and a first offender—Conviction of accused was maintained, but his sentence of imprisonment for life was reduced to ten years’ R.I. and amount of fine was also reduced from Rs.3,00,000 to Rs.1,00,000, in circumstances.

2008  MLD  676   LAHORE-HIGH-COURT-LAHORE

Mst. ASIFA BIBI VS State

S.9(b)—Appreciation of evidence—Sentence, reduction in—Heroin allegedly recovered from accused falling short of 1000 gms, case against accused fell within the preview of S.9(b) of Control of Narcotic Substances Act, 1997—Accused, who was a woman, was not a previous convict and there was no previous history of her involvement in a drug case—Conviction and sentence against accused had been rightly recorded as prosecution, had comprehensively proved the charge against accused—No enmity existed between accused and complainant or other prosecution witnesses-appearing in the case—Counsel for accused, in that scenario, did not seriously challenge conviction of accused and prayed for a lesser sentence—State counsel had no objection regarding the quantum of sentence—Conviction of accused under S.9(b) of Control of Narcotic Substances Act, 1997 was reduced to 3 years’ R.I. with benefit of S.382-B, Cr.P.C. and amount of fine was also reduced accordingly.

2008  MLD  602   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD TANVEER VS State

S.9(c)—Appreciation of evidence—Sentence, reduction in—Recovery of 1050 grams of heroin from the accused had been supported by the prosecution witnesses who had no enmity or malice against him—Police was not shown to have any reason for making a fake recovery from accused just to show its efficiency by planting a huge quantity of heroin upon him worth Lacs of rupees—Minor discrepancies in evidence were bound to occur due to lapse of four years’ time and the same could neither vitiate the trial nor make the recovery doubtful—Chemical Examiner had certified the recovered substance to be heroin—Police officials having no interest in false implication of accused were as reliable as private witnesses—Conviction of accused was consequently maintained, but in view of the small quantity of heroin recovered from him his sentence of imprisonment for life was reduced to fourteen years’ R.I.—Appeal was disposed of accordingly.

2008  MLD  373   LAHORE-HIGH-COURT-LAHORE

TANVEER AHMED KHAN VS State

2008  MLD  312   LAHORE-HIGH-COURT-LAHORE

ILYAS alias BILLU VS State

S.426—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Suspension of sentence—Petitioner/accused was sentenced only for live years, which was existed a short sentence—No likelihood existed of appeal being taken up in near future—Benefit of S.382-B, Cr.P.C. was also given to the petitioner—Conviction and sentence awarded to the petitioner was suspended till the final decision of his appeal.

2008  MLD  291   LAHORE-HIGH-COURT-LAHORE

ZAHID LATEEF VS State

2008  MLD  103   LAHORE-HIGH-COURT-LAHORE

FALAK SHER VS State

1. 426—Control of Narcotic Substances Act (XXV of 1997), S. 9(b)—Suspension of sentence—Sentence awarded to accused by Trial Court was a short one (four years) and out of the same he had served part of sentence—Appeal was not likely to be heard in the near future—Possibility was that by the time the appeal was fixed for hearing and was decided, the accused would have served his entire sentence—Sentence of accused was suspended in circumstances and he was released on bail accordingly.

2008  MLD  19   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD QASIM VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c)/15—Bail, grant of—Although the offence allegedly committed by the accused was grave in nature but he was behind the bars for the last more than two years without any tangible progress in the trial—Right to life and liberty was a fundamental right guaranteed by the Constitution to a citizen which included the right of accused to a speedy trial—Accused could not be detained in jail for an indefinite period without a trial contrary to the Constitution and law—Co-accused had been allowed bail by High Court on the ground of delay in the trial—Accused was admitted to bail in circumstances.

2008  PLD  554   LAHORE-HIGH-COURT-LAHORE

SHER KHAN VS State

1. 9(c)—Appreciation of evidence—House in which accused was putting up was a rented house, meaning thereby that the police had conducted illegal raid at the house of accused without obtaining search warrant from the Magistrate 1st Class as enunciated in S.105, Cr.P.C. as well as Art.22 of Prohibition (Enforcement of Hadd) Order, 1979—Police had not fulfilled the requirement of S.103, Cr.P.C. by not associating any independent person of the locality as public witness with recovery process—Entire recovery process carried out by the police in circumstances was based on their mala fides—Recovery of Charas had not directly been effected from accused as sufficient evidence was on record which proved the fact that accused had already fled away from his place of residence before arrival of the police—Accused, in circumstances, could not be held liable to be in possession of the alleged narcotic—Conviction and sentence recorded against accused by the Trial Court, were set aside, he was acquitted from all charges and was directed to be released.

2008  PLD  522   KARACHI-HIGH-COURT-SINDH

IMTIAZ JAWED VS State

1. 497(1), first proviso—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c)—Bail on medical ground, grant of—Grant or rejection of bail was a discretionary relief, but such discretion had to be exercised fairly and judiciously—Doctors, in the present case, were unanimous on the point of ailment of accused—Board of Doctors had opined that the accused was suffering from heart disease and they had warned about the risk factor—Accused was also suffering from Hapatitis `C’- which disease apart from being life threatening was contagious as well and could spread such disease amongst the other inmates of the jail, who were crowded in’ barracks, as stated by the Chief Medical Officer of the jail concerned—Accused was admitted to bail on medical ground alone in circumstances.

2008  PLD  374   KARACHI-HIGH-COURT-SINDH

JAMEEL KHAN VS State

Ss. 9(c) & 25—Appreciation of evidence—Sentence, reduction in—Forty-eight packets of opium were recovered from a secret drawer in the cabin of a truck—Each bundle contained 4 kilograms and total opium became 192 kilograms—Only two bundles of 4 kilograms each were sealed separately and were sent for examination and no sample was drawn from remaining 46 bags containing 188 kilograms—Version of the complainant regarding driving of truck in questions by two of accused persons turn by turn from N.-W.F.P. to Sindh Province, and recovery of opium from said truck was corroborated by other prosecution witnesses—Concealment of opium in question in the dash-board of the truck was in the common conscious knowledge of both the accused—No explanation was offered for travelling empty truck without load all the way from Sawabi (N.-W.F.P.) to the place of occurrence—Case of the conscious possession of 192 kilograms of opium was proved beyond reasonable doubt—No independent witness was associated in recovery proceedings and only Police Officials were witnesses in the case—In absence of any enmity or ulterior motives to implicate in the case, evidence of Police Official could be relied upon as Police Officials were as good witnesses as any other citizen unless any mala fides was established against them—Even otherwise provisions of S.103, Cr.P.C. had been excluded under provisions of S.25 of Control of ,Narcotic Substances Act, 1997—Accused persons could not prove that they had only taken lift on truck as their said claim was not corroborated through any other independent witness—Case of acquitted accused was totally on different footing from the case of accused persons—Prosecution had proved its case against both the accused beyond reasonable doubt by producing consistent, corroborative, direct, cogent, confidence inspiring evidence—No illegality, irregularity, infirmity or mis-appreciation of evidence had been pointed out by the defence in findings of Trial Court which convicted accused—Appeal filed against conviction was dismissed, however substantive sentence awarded to accused was modified from life to sentence of 14 years’ R.I., whereas conviction awarded to the third accused was set aside and he was acquitted and released.

2008  YLR  2815   KARACHI-HIGH-COURT-SINDH

MUHAMMAD WAKEEL VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Further inquiry—Quantity of Charas was firstly stated to be recovered by the Assistant Jail Superintendent and then it was handed over to concerned officer who, after keeping it for 19 days with him, sent same for the Chemical Analysis without any explanation regarding said delay—All that made the case of accused of further enquiry—Accused was admitted to bail, in circumstances.

2008  YLR  2787   KARACHI-HIGH-COURT-SINDH

MUMTAZ ALI SHAH VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail, refusal of—Accused persons were named in the F.I.R., Charas was recovered from their possession and chemical report was in positive—No deeper appreciation of evidence could be undertaken at bail stage and only its tentative assessment could be made—No case for grant of bail to accused having been made out, his bail application was dismissed.

2008  YLR  2707   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ISRAR VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, refusal of—Heroin filled capsules weighing 690 grams were recovered from the stomach of accused through medical process—Trial Court had rightly disallowed bail to accused on cogent reasons vide impugned order—Accused being in custody for the last eight months without any progress in the case, Trial Court was directed to record evidence of the complainant and one Mashir within two months, whereafter accused would be at liberty to repeat his bail application in the Trial Court, if so advised—Bail application was dismissed with the said observation.

2008  YLR  2565   KARACHI-HIGH-COURT-SINDH

BADSHAH MIR VS State

1. 497(2)—Control of Narcotic Sub-stances Act (XXV of 1997), Ss.9(c), 12, 13 & 15—Bail, grant of—Further inquiry—Accused was father of absconding accused persons—Nothing incriminating had been recovered from the possession of accused persons—Alleged recovery had been made from the house of absconding accused persons which was a joint family living—Two male members of the family of accused persons had absconded, while two remaining male members had been arrested and no male member was left in the family to look after the women and children—Case of accused was distinguishable from that of absconding co-accused—Allegation of firing on Anti-Narcotic Force was on the absconding accused person, but still Ilaqa Police was not attracted at the place of incident—No body was injured, no empties were found at the place of incident and no one from the Mohallah had heard the fire shots—Colony where incident allegedly occurred was a very thickly populated area where shops and sufficient light was available at the night time—No possibility of abscondence of any one on foot when officials were on vehicle existed—Case against accused persons, requiring further inquiry under S. 497(2), Cr.P.C., they were granted bail.

2008  YLR  2553   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ISMAIL VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Further inquiry—Allegation was that 136 rods of Charas were recovered from accused, but the sample had been taken only from 5 rods—Accused was in custody for the last one year without trial—Car allegedly used in occurrence, was not owned by accused and no evidence was available in the hands of the prosecution to prove that accused had any knowledge regarding the hidden contents of the car—Was yet to be determined by way of evidence, whether accused had any knowledge of Charas hidden in the car and whether he had shared common intention with co-accused, who was driving the car—Case required further inquiry under S.497(2), Cr.P.C. and during pendency of inquiry accused having made out a case for grant of bail, bail was granted to accused.

2008  YLR  2457   KARACHI-HIGH-COURT-SINDH

Malik FAYYAZ VS State

Ss. 498 & 561-A-Control of Narcotic Substances Act (XXV of 1997), S.9(c)-Bail, grant of—Medical grounds—High Court had referred the accused who was in jail since 25-2-2006 to the Director National Institute of Cardiovascular Diseases for constituting a Board for proper report on the present condition of the accused/applicant—Board reviewed the case of accused and observed that he had coronary heart disease and gets efforts angina on mild exertion and his coronary angiography had revealed that he had Tripple Vessels Coronary Artery Disease and needed Surgery—High Court, in circumstances, granted bail to accused.

2008  YLR  2248   KARACHI-HIGH-COURT-SINDH

Mst. PHAPHAN alias FATIMA VS State

Ss.497 & 103 [as amended by Criminal Procedure Code (Second Amendment Ordinance) (XXXV of 2006)]—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, refusal of—Recovery of 11-1/2 kilogram of Charas—Illegal custody—Proof–Affidavits in defence—Female accused sought bail on the ground that provisions of S.103, Cr.P.C. were not complied with during recovery of narcotics whereas she had already been in custody of authorities, at least 36 hours prior to the recovery—Accused produced affidavits of many persons in proof of her illegal detention—Validity—Persons who executed affidavits could appear for accused at the stage of her defence and the same could not be entertained at bail stage, when no legal document was available to show that the lady was in illegal custody—Neither any F.I.R. nor complaint was preferred regarding alleged illegal detention of accused, particularly when she was a political activist and was an office-bearer of women wing of a popular political party—Provisions of S.103, Cr.P.C. were not applicable to recovery of narcotic under Control of Narcotic Substances Act, 1997—High Court refused bail to accused as apparently she with her cousin was arrested with a large quantity of narcotics and the same was substantiated by chemical report—Bail was declined in circumstances.

2008  YLR  2204   KARACHI-HIGH-COURT-SINDH

AMJAD TAQI VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, refusal of—Recovery of 11-1/2 kilograms of Charas—Complainant as Investigating Officer—Illegal custody—Proof—Affidavits in defence—Accused sought bail on the ground that complainant himself investigated the case whereas he had already been in custody of authorities, at least for 36 hours prior to the recovery—Accused produced affidavits of many persons in proof of his illegal detention—Validity—Complainant could investigate the case particularly when it was a case of recovery—Persons who executed affidavits could appear for accused at the stage of her defence and the same could not be entertained at the bail stage, when no other document was available to show that accused was in illegal custody—Neither any report nor complaint was preferred about his illegal detention—Bail application was dismissed in circumstances.

2008  YLR  2101   KARACHI-HIGH-COURT-SINDH

MUHAMMAD YASIN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)—Bail, grant of—State counsel, despite stating that accused had better case on merits and that the case was of further inquiry, had suggested that accused should withdraw his bail application and should file a fresh application before the Trial Court on merits—Validity—Said suggestion of State Counsel would be harsh as accused, on a technical ground, was directed to withdraw bail application, when the case of accused was better on merits—Less than 1 K.G. of allegedly recovered Charas was sent to Chemical Examiner as sample—Accused was not driving the vehicle from which Charas in question was recovered and no driving licence had been recovered from the accused—Accused was taken into custody while he was standing at a Bus stop and he was falsely involved in the case—Case of accused was almost on similar grounds as those of co-accused who had been bailed out by the High Court—Accused, in circumstances was entitled for grant of bail on the principle of consistency—Accused was admitted to bail, in circumstances.

2008  YLR  2080   KARACHI-HIGH-COURT-SINDH

JAN MUHAMMAD VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 21—Bail, grant of—Complainant was Assistant Sub-Inspector of Police who carried out the search of accused, recovered the case property and arrested accused, whereafter the F.I.R. was lodged by him—Validity—Under provisions of S.21 of Control of Narcotic Substances Act, 1997, it was pre-requisite that an officer not below the rank of Sub-Inspector of Police or equivalent authorized in that behalf by the Federal Government or the Provincial Government, should take action regarding the alleged offence—Said mandatory provision of law had been violated by the complainant—Case being fit for grant of bail, accused was allowed bail, in circumstances.

2008  YLR  2016   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ARSHAD VS State

1. 497—Control of Narcotic Sub-stances Act (XXV of 1997), Ss. 6 & 9—Bail, refusal of—Huge quantity of 79, K. G. Charas was recovered from the secret cavities of vehicle which was driven by accused and there was no probability of foisting such huge quantity on the accused—As vehicle in question was without any passenger, there was no question to take any passenger as a Mashir—Bail way refused in circumstances.

2008  YLR  1575   KARACHI-HIGH-COURT-SINDH

KHALILUR REHMAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of–Accused was behind the bars since 2005—Fair and expeditious trial being right of an accused, where accused was able to show that there was unexplained delay on the part of the prosecution to proceed with the case and conclusion of the trial was unexplained, court could enlarge him on bail—Entire quantity of charas not sent for chemical analysis and weighment etc. to confirm the weight of alleged recovered charas—Enmity existed between accused, complainant and his subordinate–Proceedings against the Investigating Officer for false involvement, of persons were also on record—For granting benefit of doubt to accused, it was not necessary that there should be many circumstances creating doubts, if a simple circumstance would create reasonable doubts in the prudent mind about the guilt of accused, then he would be entitled to such benefit not as a matter of grace and concession, but as a matter of right–Accused, in circum­stances was entitled to the grant of bail.

2008  YLR  1560   KARACHI-HIGH-COURT-SINDH

SHAHID HUSSAIN VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of—Further inquiry—Prosecution story, revealed that accused, duly armed with weapons, had fired at the Excise Officials to cause their murder, but no such case was registered by the Excise Officials at any Police Station—Authority of Excise Officials to secure the licensed weapons of accused persons required to be legally examined—Inspite of the fact that the Excise Officials had prior information, they did not make any effort to associate a public witness to witness the recovery and seizure, of narcotic substance coupled with the fact that alleged recovery was effected at 5-00 p.m. and that too at the Bus Stand where the passengers were found available all the time—In view of the pendency of a murder case filed by one of accused persons against the Excise Officials, the possibility of registration of a false case in retaliation could not be ruled out—Case of accused persons, in given circumstances called for further inquiry entitling them to the concession of bail—Accused were admitted to bail, in circumstances.

2008  YLR  1505   KARACHI-HIGH-COURT-SINDH

KHAN MUHAMMAD VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Bail, grant of—Mere fact that the Bus from which 200 kilograms of “Charas” was recovered was carrying only two persons had pointed towards the innocence or at least lack of knowledge on the part of accused that “Charas” was concealed in the Bus—Any person could have concealed “Charas” in the Bus, as occupation of the accused was only that of a cleaner and the owner of the Bus was shown to be an absconder in the Challan—Accused, therefore, at this stage could not be said with certainty that he had concealed the “Charas” in the Bus or had any knowledge about its presence therein—Case of further inquiry into the guilt of accused, thus, was made out and he was allowed bail accordingly.

2008  YLR  1214   KARACHI-HIGH-COURT-SINDH

MUHAMMAD FAIZ VS State

Art. 18(4)—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Investigation-Extent and scope—Entrustment of investigation by the complainant to his own subordinate, being in clear violation of Article 18(4) of the Police Order, 2002, is patently illegal—Though it may not have the effect of vitiating the trial, it will certainly damage the fairness of investigation, one of the main objects sought to be achieved by the Police Order, 2002, as well as the credibility of the officer blatantly violating the law.

2008  YLR  1214   KARACHI-HIGH-COURT-SINDH

MUHAMMAD FAIZ VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b) & 25—Police Order (22 of 2002), Art. 18(4)—Bail, grant of—S.H.O. of the police station had carried out the investigation in clear violation of the mandatory provisions of Article 18(4), Police Order, 2002, which he was not competent to do-.–Although, in view of S.25 of the Control of Narcotic Substances Act, 1997, the provisions of S.103, Cr. P. C. were not applicable in the case, yet the place of recovery and time of recovery had to be kept in view to prevent false implication of innocent people looking at the general conduct of police—Recovery of heroin had been effected from the accused from near a Chowk at noon time where several persons might have been present, but admittedly neither the police procured the attendance of any independent persons from the public, nor made any efforts in that regard—Heroin weighing 270 grams contained in five packets, as per F.I.R., was recovered from the accused, out of which 50 grams of heroin was sent to Chemical Analyser for report—Expert opinion, thus, would be available at the most regarding 54 grams of heroin pertaining to one packet of the case property and the case might even fall under S.9(a) of the Control of Narcotic Substances Act, 1997—Accused was allowed bail in circumstances.

2008  YLR  902   KARACHI-HIGH-COURT-SINDH

Mrs. DOROTHY HINGANDU VS State

S.9—Appreciation of evidence—Accused who was foreigner, attempted to smuggle out from Pakistan 458.8 grams of heroin powder—Accused having pleaded guilty the Trial Court convicted and sentenced her to suffer R.I. for one and a half years and to pay fine of Rs.50,000—Accused in her appeal had challenged only the legality of the sentence awarded to her—Section 9 of the Control of Narcotic Substances Act, 1997, from punishment point of view, had divided the offence relating to narcotics into three categories depending on their quantity—If quantity was 100 grams or less, the punishment of imprisonment could extend to two years, if the quantity exceeded 100 grams, but did not exceed one kilogram, imprisonment could extend to seven years; and if the quantity was more than one kilogram, the punishment could be death or imprisonment for life—Except for said general categorization, the statute did not prescribe any mathematical formula for awarding sentence in a particular case nor it made distinction between different kinds of narcotics such as heroin and Charas—Punishment for trafficking in Charas and heroin of equal quantity, could not be the same as there was vast difference between their value and consequently the benefit which could be derived from their illicit trade—Value of one kilogram of heroin could be much more than that of 100 kilograms of Charas—Accused attempted to export nearly half kilogram of heroin capable of fetching a big profit its punishment, in circumstances needed to be commensurate with its prospective profit—Trial Court having already taken lenient view, appeal was dismissed.

2008  YLR  351   KARACHI-HIGH-COURT-SINDH

SIKANDAR VS State

1. 497—Police Order (22 of 2002), Art.18(4)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Bail, grant of—Admittedly samples had not been drawn from all the pieces of “Charas” allegedly recovered from the accused, but only one piece of 15 grams had been taken as a sample and sent to Chemical Analyser—Remaining 1000 grams of the recovered substance thus could not be treated as a narcotic—Resultantly prima facie S.9(a) of the Control of Narcotic Substances Act, 1997, was attracted, in the case which did not fall within the prohibitory clause of S.497(1), Cr. P. C.-Complainant Investigating Officer had conducted investigation’ in the case who did not belong to Investigation Section, in violation of the provisions of Art.18(4) of the Police Order, 2002, which appeared to be tainted with mala fides creating serious doubts—Accused was admitted to bail in circumstances.

2008  YLR  88   KARACHI-HIGH-COURT-SINDH

MUHAMMAD YOUSUF VS State

Ss.497, 54, 59 & 156(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9, 21 & 22—Bail, refusal of—Counsel for accused had stated that accused were searched and property was allegedly recovered by the complainant who being A.S.I. was not competent to do so in view of mandatory provisions of Ss.21 & 22 of Control of Narcotic Substances Act, 1997—Further contention of accused was that said provisions of law having been violated, accused were entitled to the concession of bail—Validity—Cognizable offence was committed within the view of complainant who was Assistant Sub-Inspector of police—Apart from his own powers under S.54, Cr. P. C., said complainant could arrest accused under S.59, Cr. P. C. , even if he was not authorized to conduct the investigation or search under S.21 of Control of Narcotic Substances Act, 1997–Accused were arrested on the spot–Complainant/A.S.-I. produced them at the Police Station, lodged the F.I.R. and then the investigation was conducted by Sub-Inspector who was competent to investigate the case—No illegality in circumstances was committed in arresting accused and seizing the property–Even otherwise, if investigation was conducted by an unauthorized officer, then S.156(2), Cr. P. C. would protect such proceedings—When the case was challaned and after taking its cognizance by the court, the irregularity in the investigation, would not affect the trial which would not be vitiated—Case against accused was fully supported by the prosecution witnesses and was corroborated by the Chemical Analyzer’s report—Accused in circumstances were not entitled to the concession of bail.

2008  YLR  37   KARACHI-HIGH-COURT-SINDH

IRFAN ALI BHAYO VS State

S.9(c)—Appreciation of evidence—Nothing had been mentioned in the F.I.R. or the mashirnama of the recovery regarding the samples drawn from the recovered narcotics; it could not be presumed, in circumstances that all the rods contained Charas as neither the samples were drawn from all those rods nor those were chemically examined—Samples were received at the laboratory after delay of about 8 days from recovery of narcotics–Parcel containing the samples was not sent under any letter and same neither contained the letter number nor the date-of dispatch—No explanation was available on the record to justify such major lapse an the part of prosecution—Conviction of accused could not be sustained as the case of prosecution was full of doubts—Burden was on the prosecution to prove the charge beyond all reasonable doubts whereas accused was only to create a reasonable doubt in the case of prosecution—Serious doubts having been created in the case of prosecution, judgment of conviction of accused was unsustainable—Conviction was set aside and accused were set at liberty.

2008  PLD  14   KARACHI-HIGH-COURT-SINDH

PERVAIZ AHMED VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(b) & 25—Bail, grant of—Further inquiry—Charas in question was found in the shape of five separate slabs/patties, but only one slab/patti was sent for the chemical analysis report—No expert opinion could be available regarding remaining four slabs/patties, as to whether those contained any narcotic substance or not—Since only one slab/patti of charas was separately sent for the chemical analysis report, which weighed one kilogram, the chemical report would be conclusive only to the extent of one kilogram of charas—Question whether the entire recovered substance was covered by the definition of narcotics, would be properly determined at the stage of trial after sufficient evidence was brought on record—Tentative assessment showed that chemical analysis report to the extent of only one slab/patti weighing one kilogram, prima facie would constitute an offence under S.9(b) Control of Narcotic Substances Act, 1997, which was punishable to the extent of seven years—Place where incident allegedly occurred was situated in the midst of the city which was a thickly-populated area, but no private person from the locality was associated as witness/mashir in the case—Section 25 Control of Narcotic Substances Act,1997, provided that provisions S.103, Cr.P.C. would not be applicable, but still each case had to be seen in its true perspective with regard to the background and surrounding circumstances—In the present case, as a natural circumstance , some persons from the locality, must have been available who had witnessed the incident, but those were not associated-Case of accused calling for further inquiry under S.497(2), Cr.P.C., he was admitted to bail .

2008  PCrLJ  1665   KARACHI-HIGH-COURT-SINDH

EJAZ AHMAD VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, refusal of—Accused was absconding from justice for the last five years and bail application had been filed by his counsel—High Court refrained from making any observation regarding merits of the case as the same could prejudice the case of either party at the trial, however, prima facie case was established against the accused—Bail application, in circumstances was dismissed.

2008  PCrLJ  1540   KARACHI-HIGH-COURT-SINDH

JAFFAR VS State

Ss. 6/9(c)—Appreciation of evidence—Sixty-six capsules containing 750 grams of heroin were recovered from the stomach of accused—Accused had admitted his guilt at the time of framing the charge and had pleaded for mercy stating that this was his first offence and his family members including his old mother and kids depended upon him—Though said contention of accused was not supported by the record, yet he had regretted his involvement in the offence and had expressed remorse—Judgment passed by Trial Court was legal, proper and in accordance with law and did not suffer from any illegality and infirmity—Conviction and sentence of two and a half years’ R.I. of accused were maintained, as he had already been treated leniently by Trial Court in the matter of substantive sentence—However, the fine of accused was reduced from Rs.40,000 to Rs.10,000 in circumstances.

2008  PCrLJ  1447   KARACHI-HIGH-COURT-SINDH

ALTAF HUSSAIN alias ALTAF VS State

1. 497—Control of Narcotic Substances, Act (XXV of 1997), S.9(b)—Bail, grant of—Accused had already been granted bail in the main case—“Charas” according to prosecution case had been recovered in shape of pieces, but sample was not taken from each piece and still it was not determined whether the pieces of material recovered from accused were actually “Charas” or not—When police party entered into the quarter they had found two persons sitting on different cots and main contention was that total 1000 grams of “Charas” was not recovered from the exclusive possession of accused, which was lying on the cot—Case of accused required further probe regarding his guilt—Bail was allowed to accused in circumstances.

2008  PCrLJ  1432   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ISMAIL VS State

1. 9(c)—Appreciation of evidence—Sentence, reduction in—No particulars of enmity had been brought on record by the accused against the prosecution witnesses—Recovery of five Kilograms “Charas” from the accused had been proved by consistent prosecution evidence, which could not be shaken in cross-examination-Even a slight discrepancy could not be pointed out in evidence to cast doubt on prosecution version with regard to the implication of accused in the crime—Chemical Examiner had given positive report about the sample of “Charas” sent to him, which was even not seriously disputed by the defence—Plea taken by accused in his defence of being innocent in the case did not inspire-confidence for the simple reason that such a huge quantity of “Charas” could not be foisted by the prosecution upon any innocent person—Conviction of accused was maintained accordingly—Accused had himself argued his appeal who was more than 55 years old and seemed to be an infirm person—Sentence of accused was substantially reduced in circumstances.

2008  PCrLJ  1414   KARACHI-HIGH-COURT-SINDH

ISRAR AHMAD VS State

1. 9(c)—Evidence—Police witnesses, credibility of—Evidence of Police Officials may be treated as good as evidence of other independent witnesses, who have no mala fides against the accused and their testimony is not damaged in cross-examination.

2008  PCrLJ  1414   KARACHI-HIGH-COURT-SINDH

ISRAR AHMAD VS State

1. 9(c)—Appreciation of evidence—Testimony of eye-witnesses including the complainant Excise Inspector was consistent regarding recovery of fourteen Kilograms of “Charas” from the accused in the shape of fourteen plastic bundles of one Kilogram each—Evidence of police officials could be treated as good as evidence of other independent witnesses, who had no mala fides against the accused—Evidence regarding recovery of such a huge quantity of “Charas” from the accused had not been damaged despite lengthy cross-examination of prosecution witnesses—Trial Court still had relied upon recovery of only two Kilograms of “Charas” which had been sent to Chemical Examiner for report and was found to be “Charas”, and had given benefit to the accused regarding the remaining twelve Kilograms of “Charas—Conviction and sentence of accused were maintained in circumstances.

2008  PCrLJ  1339   KARACHI-HIGH-COURT-SINDH

THE STATE/ANTI-NORCOTICS FORCE through Deputy Director  VS KHAWAR FAYYAZ

1. 497(5)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Cancellation of bail, refusal of—Accused had been attributed specific role of having deprived the complainant of huge amount and were found guilty during investigation—Accused could not claim bail as a matter of right if the offence with which they were charged did not fall within the prohibitory clause of S.497, Cr.P.C.—No illegality or patent infirmity on the face of record resulting in miscarriage of justice was pointed out in the impugned bail granting order—Petition for cancellation of bail was dismissed in limine in circumstances.

2008  PCrLJ  1333   KARACHI-HIGH-COURT-SINDH

ABDUL NABI VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c) & 51—Bail, grant of—Further inquiry–Accused was in jail for more than one year without trial, even charge had not been framed; the Charas was allegedly recovered from the folds of his Shalwar weighing 2 Kgs., which was not possible—Only 20 grams of Charas were sent for Chemical Examination, as such presumption could be drawn that only that much quantity had been recovered from accused—For granting benefit of doubt to accused, it was not necessary that there should be many circumstances creating doubts, but if a simple circumstance would create reasonable doubt in a prudent mind about the guilt of accused, then he would be entitled to such benefit not as a matter of grace and concession, but as a matter of right—Delay in each case was to be judged and weighed on its own merits—Inordinate delay, if not explained, would amount to abuse of process of law even in cases of capital punishment where prosecution was loath in submitting the challan, slow in producing witnesses, failed to produce accused without any justification or delaying tactics used by any person other than accused including complainant—If delay was so shocking and scandalous, it would amount to abuse of process of law—Even where the directions of the superior courts were not complied with without any justifiable reason, same could furnish a good ground for bail—Fair and expeditious trial was the right of an accused—In case where accused was able to show that unexplained delay was on the part of prosecution to proceed with the case and delay in conclusion of the trial was unexplained, court could enlarge accused on bail—Accused in the present case, was languishing in jail for more than one year—Quantity of narcotics could be given importance only when same was linked with accused by cogent evidence—Ban contained in S.51 of Control of Narcotic Substances Act, 1997 would be attracted only when reasonable grounds were found for believing accused guilty of the alleged offence—High Court was competent to grant bail in appropriate cases notwithstanding the provisions of S.51 of Control of Narcotic Substances Act, 1997—No reasonable ground being available for believing accused guilty of offence and case requiring further inquiry into his guilt, accused was admitted to bail.

2008  PCrLJ  1329   KARACHI-HIGH-COURT-SINDH

ABDUL MAJEED VS State

1. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(b)—Bail, grant of—Further inquiry—Alleged recovery of 79 capsules of heroin from accused four days after his arrest—Effect—Accused remained in custody prior to the recovery, but during that period no confessional statement of accused was recorded—Case of accused required further inquiry—Accused was no more required by the police for investigation purpose—Bail was granted to accused, in circumstances.

2008  PCrLJ  863   KARACHI-HIGH-COURT-SINDH

THE STATE through Collector VS Syed MASROORUN NABI

1. 9(c)—Criminal Procedure Code (V of 1898), S.417—Appeal against acquittal—Prosecution had failed to prove the very foundation of its case as none of the witnesses had stated in the Court that he had seen anybody in the yard near the container on the relevant night, hence, the presumption that the accused had inducted the contraband in the container had not been proved—Admittedly presence of any accused in the Mashirnama was not shown, whereas to the contrary names of the accused were mentioned in the F.I.R. and they were shown present at the time of opening of the container and the contraband was recovered in their presence—Officials appearing as witnesses had not corroborated their own case and non-inducting of the customs officials in the case clearly showed that the investigations were partial and biased—Container remained in possession of the complainant agency for twelve hours without any justification and explanation—Trial Court had given valid and cogent reasons for acquittal of accused on benefit of doubt Impugned judgment was based on proper appreciation of evidence and called for no interference—Appeal against acquittal of accused was dismissed in circumstances.

2008  PCrLJ  146   KARACHI-HIGH-COURT-SINDH

SUHAIL KHAN alias SALEH MUHAMMAD VS State

1. 9(c)-Appreciation of evidence—Police witnesses—Police officials are as good witnesses as private witnesses, unless the defence proves that the said police officials had a. bias or enmity with the accused.

2008  PCrLJ  146   KARACHI-HIGH-COURT-SINDH

SUHAIL KHAN alias SALEH MUHAMMAD VS State

Ss. 9(c) & 36(2)—Appreciation of evidence—Sentence, reduction in—Police witnesses had supported the prosecution case unanimously without making any contradiction—Complainant police official could investigate the case himself, but such practice was deprecated and a check was directed to be placed on the activities of the police officials who were themselves becoming complainants, witnesses and Investigating Officers—Section 103, Cr.P.C. being not applicable to cases under the Control of Narcotic Substances Act, 1997, Investigating Officer was not bound to arrange private recovery witnesses, but in the present case no private person had agreed to become a witness despite his efforts—Police witnesses were as good as private witnesses unless proved by the defence to have a bias or enmity against the accused—Weight of heroin samples according to the evidence of recovery, was ten grams each while the report of the Chemical Examiner had shown the same as almost double in each sample—Such a glaring contradiction had not only made the entire weight of heroin doubtful but had also cast doubt on the very recovery itself—Oral evidence being contradictory to the chemical report, Court had to rely on the report of the Government Analyst by virtue of S.36(2) of the Control of Narcotic Substances Act, 1997—Charge against accused regarding the recovery of heroin, thus, was not proved and he was acquitted of the same—Chemical Examiner’s report regarding the samples of Charas was positive which was further corroborated by oral evidence—Recovery of “Charas” from accused having been proved, his conviction for the same was upheld, but keeping in view the weight of Charas his sentence of imprisonment for life was reduced to the imprisonment already undergone by him.

2008  PLD  8   KARACHI-HIGH-COURT-SINDH

KHALIL AHMED VS State

1. 9(c)—Appreciation of evidence—Chemical Examiner’s report revealed that it was not perceivable that material recovered from the possession of accused was charas—After such negative report from the Chemical Examiner, no doubt remained to take a view that material sent to the Chemical Examiner was charas—Case of prosecution, in circumstances suffered an irredeemable damage on that score alone—Record showed that the charas was in the shape of rods, but nowhere in the entire evidence, the number of rods had been mentioned—F.I.R. did not disclose the names of the subordinate staff who accompanied the complainant for the purpose of checking—Even the names of Mushirs were not mentioned in the body of memo of arrest, recovery and seizure of charas—Car in question though was also taken in custody by the Excise Inspector, but neither such memo was prepared nor produced in evidence—Such circumstances had rendered the prosecution story dubious—Recovery was effected on a highway in front of Petrol Pump in the close proximity of town, which was a busiest place, but neither any person from the public was made witness of recovery nor anyone was persuaded to attest the recovery proceedings—Applicability of S.103, Cr.P.C. though had been excluded under the Control of Narcotic Substances Act, 1997, but it would not debar or prohibit the officers making recoveries on such places, which were necessarily surrounded by people to take some steps/measures to associate private persons in the process-House of accused was searched without warrant and without associating any respectable person of the locality—Story as cooked up by the prosecution, being highly improbable and implausible, had created number of doubts—Case of prosecution being highly doubtful, conviction of accused, could not be based on such type of trials which were marred by glaring infirmities—Conviction recorded against accused were set aside and they were directed to be released.

2008  MLD  1426   KARACHI-HIGH-COURT-SINDH

ABDUL MANAN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)—Bail, refusal of—Allegation against the accused was that while he was driving a car, upon searching by the Excise Police, 132 Kgs of Charas in 136 rods was recovered from the concealed cavities under the dashboard of the said vehicle—Co accused was also sitting on the adjacent seat of the car—Contention of the applicant/accused was that bail having been granted to the co-accused, in view of the rule of consistency he was also entitled to bail and that since the samples were not taken from all the recovered rods for chemical analysis the accused deserved grant of bail—Validity—Held, role assigned to the applicant in the case was distinguishable from that of the co-accused, who had been granted bail by High Court and as such applicant/accused could not claim benefit of bail on the rule of consistency—Taking samples from a few rods and leaving other rods could not help the accused at bail stage, as the recovered contraband was available with the Investigating Officer–No enmity had been shown with the Excise Staff for false implication of the accused—Bail was declined by High Court.

2008  MLD  1396   KARACHI-HIGH-COURT-SINDH

Malik FAYYAZ VS State

1. 498—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 48—Bail, grant of—Further inquiry—Property in question had not been recovered from the applicant/accused and the evidence available with the prosecution was the statement of the co-accused that he purchased the property in question from the applicant/accused and the said co-accused had pleaded guilty and had been convicted—One of the Mashirs had been examined who had not supported the prosecution case and as such, the applicant/accused’s case had become of further inquiry—Accused was admitted to bail in circumstances.

2008  MLD  1396   KARACHI-HIGH-COURT-SINDH

Malik FAYYAZ VS State

Ss. 498 & 561-A—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 48—High Court of Sindh Administrative Order dated 6th September, 2007—Bail—Single Judge of the High Court can hear the bail application in exercise of the original jurisdiction of the High Court under S.498, Cr.P.C.—Registrar, Sindh High Court, in consequence of such decision of the High Court issued an Administrative Order dated 6-9-2007 to the effect that “Hon’ble Chief Justice has been pleased to order that all the bail applications filed under S.498, Cr.P.C. read with S.48 of Control of Narcotic Substances Act, 1997 shall now be heard by a Single Bench of High Court instead of Division Bench”.

2008  MLD  1333   KARACHI-HIGH-COURT-SINDH

MIR MUHAMMAD VS State

S.9—Benefit of doubt—Scope—One single circumstance throwing doubt is sufficient to discard prosecution case.

2008  MLD  1333   KARACHI-HIGH-COURT-SINDH

MIR MUHAMMAD VS State

S.9—Qanun-e-Shahadat (10 of 1984), Arts.117 & 120—Guilt of accused—Burden of proof—Principle—Even in case of narcotics the initial burden to prove the guilt of accused is always upon the prosecution.

2008  MLD  1333   KARACHI-HIGH-COURT-SINDH

MIR MUHAMMAD VS State

S.9—Recovery of narcotics—Evidence of officials—Principle—No doubt evidence -of official witnesses is admissible but it does not mean that they are reliable also—Every case is to be seen in the light of facts of its own.

2008  MLD  1333   KARACHI-HIGH-COURT-SINDH

MIR MUHAMMAD VS State

Ss. 9 (c) & 48—Appreciation of evidence—Recovery of 24 kilograms of Charas—Benefit of doubt—Raiding party as recovery witnesses—Effect—Accused was allegedly arrested from a room of hotel where he was statedly packing 24 kilograms of Charas keeping the door of room open—Trial Court convicted the accused and sentenced him for imprisonment for life—Validity—Investigating Officer, while conducting raid at hotel, did not cease register of hotel from which it could have been proved as to who was in possession of the room on the relevant date and at relevant time—Hotel was located at thickly-populated area and availability of independent witnesses at the time of raid was not difficult as admitted by prosecution witnesses—Investigating Officer did not make any effort to invite any citizen to act as Mushir in raiding party—Police constables were available outside the hotel but Investigating Officer had not even asked them to act as Mushir—Investigating Officer relied upon the testimony of his own two subordinates who always accompanied him—Major dent in prosecution case was caused by non-availability and non-appearance of the officer who was supervisor of the raiding party, who was not even cited as prosecution witness although he was the most senior and respectable person amongst the raiding party—Even on Court’s call the said supervisor of raid did not attend the court and prosecution closed its side without examining the supervisor—Benefit of such type of conduct by prosecution agency always had gone to the accused—Plain reading of F.I.R., Mushirnama of recovery and evidence of three witnesses who were the employees of Anti Narcotic Force did not inspire confidence in prosecution case—High Court declined to believe that accused was packing Charas in a hotel room, which was a public place by keeping the door open—High Court set aside the -conviction and sentence awarded by Trial Court and accused was acquitted of the charge—Appeal was allowed in circumstances.

2008  MLD  1061   KARACHI-HIGH-COURT-SINDH

AHMED HUSSAIN VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9, 12, 13, 14, 15, 19 & 37—Bail, grant of—Challan was submitted after about 20 days from occurrence and charge was framed after lapse of four years of incident—No progress was made in the trial of case—Accused could not be kept behind the bars for an indefinite period for no fault of his own in delay of the trial of case—Accused was granted bail, in circumstances.

2008  MLD  978   KARACHI-HIGH-COURT-SINDH

THE STATE through Investigating Officer VS MANSOOR AHMED

Ss.9(c) & 14—Criminal Procedure Code (V of 1898), Ss. 417 & 435—Appeal against acquittal and revision for enhancement of sentence—Accused, was acquitted while his co-accused was convicted for the offence under S.14 of Control of Narcotic Substances Act, 1997 to suffer R.I. for two years and fine—Appeal and revision had been filed with a prayer that accused who had been acquitted be also convicted and that sentence awarded to co-accused be enhanced—Crux of matter was that charge against accused was framed under S.9(c) of Control of Narcotic Substances Act, 1997, which had provided punishment for death or imprisonment for life, while co-accused had been convicted and sentenced for two years convicted under S.14 of the said Ordinance—Flaw/ambiguity appeared in the impugned judgment whereby co-accused had been convicted under S.14 of Control of Narcotic Substances Act, 1997, though the charge proved against him was under S.9(c) of said Act—Revision and acquittal appeal were allowed and case was remanded to the Trial Court for de novo consideration and to decide the matter on its own merits according to law.

2008  MLD  797   KARACHI-HIGH-COURT-SINDH

TAJ MUHAMMAD VS STATE

1. 9(c)—Appreciation of evidence—Entry of departure of excise staff had shown the time of their departure as 8-00 a.m.—Same entry however, had incorporated the arrest of accused, and recovery of contraband items according to which it was effected at 10-00 a.m.—Said entry belied the prosecution story as entry was either afterthought or had been made with dishonest intent to give the benefit to accused—Investigating Officer did not investigate the case honestly—Material contradictions existed between the deposition of both prosecution witnesses—Mere presence of accused in the oil tanker from which contraband was recovered, was not sufficient to connect him with the offence, unless prosecution would bring material to establish that he had the knowledge of contraband articles lying in the said oil tanker—Prosecution in the face of the evidence produced in the case had failed to prove that accused was in the knowledge of contraband articles—Accused was not found to be the owner of the oil tanker—All said factors were sufficient to hold that evidence of both prosecution witnesses was not confidence inspiring and had material contradiction, the benefit of which must be given to accused—Impugned judgment was passed believing the evidence, of the prosecution story though it had material contradictions and reliance upon such evidence, which was not legal to convict accused—Benefit of doubt was given to accused and he was directed to be released.

2008  MLD  678   KARACHI-HIGH-COURT-SINDH

ABID HUSSAIN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 21—Bail, grant of—In the present, case S.9(b) of Control of Narcotic Substances Act, 1997 was attracted wherein maximum punishment provided was seven years which did not fall within the prohibitory clause of S.497, Cr.P.C.—Under S.21 of Control of Narcotic Substances Act, 1997, Assistant Sub-Inspector was not empowered to detain or search accused as was done—Accused was+ granted bail, in circumstances.

2008  MLD  627   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ARSHAD VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, refusal of—Case of prosecution was supported by the witnesses and Chemical Analyzer’s report—Material available on record showed that reasonable grounds were found to exist for believing that accused was involved in the case—Police entry made in the Roznamcha of Police Station, was yet to be produced in the evidence and that was subject to proof by examining the witnesses—Accused appeared to have taken the plea of alibi through said Police entry, which plea had to be examined after producing the evidence at the time of trial—Said points could be properly appreciated after assessing and appreciating the evidence led by the parties—Only tentative assessment of evidence was required to be undertaken at bail stage and the deeper appreciation of evidence was the function of the Trial Court, which could be done at the time of trial—Accused being not entitled to the concession of bail, his bail application was dismissed.

2008  MLD  608   KARACHI-HIGH-COURT-SINDH

MUHAMMAD FARRUKH KHAN ZAI VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)-Bail, grant of—Alleged recovery of 2.5 Kgs., heroin was effected from 265 leather belts in the form of small bags out of which 11 plastic bags of tube size were sent to the Chemical Examiner with, gross weight of 54.400 grams—Investigating Officer having secured powder in small bags, entire property was required to be sent to Chemical Analysts to prove that each bag contained heroin powder, wherefrom a small quantity of heroin powder was proved in accordance with law—Since total commodity recovered from the possession of accused having not been sent to the Chemical Examiner, it would not be presumed that sample was taken out from each and every bag—Accused was admitted to bail, in circumstances.

2008  MLD  442   KARACHI-HIGH-COURT-SINDH

MUHAMMAD SHAHID CHIRAGO VS State

2008  MLD  314   KARACHI-HIGH-COURT-SINDH

ABDUL MAJEED VS State

S.9(c)—Appreciation of evidence—Contention of counsel for accused that Police Inspector, who was complainant of the case, could not act as Investigating Officer, was not reasonable and plausible as no law existed by which any restriction had been imposed on the Police Officer not to act as complainant and Investigating Officer at the same time—No embargo was placed on any Police Officer in whose presence an offence had been committed to act as Investigating Officer—Counsel for accused had further contended that as only samples from each of the packets were sent to the Chemical Examiner for analysis instead of the whole quantity of charas, the remaining quantity of charas not sent to Chemical Examiner, could not be treated as charas recovered from accused, was repelled—Whole quantity of narcotic substances could not be sent to the Chemical Examiner for analysis and samples sent to him were sufficient—If the report of the Chemical Examiner was positive, the whole quantity of narcotic substance secured from accused could be treated as contraband narcotic—Persons of locality though were present at the time of recovery, but no one was ready to become the witness—Accused had not alleged any enmity between him and complainant so as to implicate accused falsely in the case—Prosecution witnesses had fully supported the arrest of accused and recovery of narcotic from him—Said prosecution witnesses had been cross-examined at great length, but the arrest of accused and recovery of huge quantity of charas from accused had not been disproved—Presence of accused at the time of his arrest had not been disputed, nor the recovery of huge quantity of charas had been disproved through any independent evidence led by accused—Report of Chemical Examiner also affirmed that substance sent to him for analysis was charas—Defence evidence brought on record by accused, did not inspire confidence—Prosecution, in circumstances had succeeded in bringing home guilt to accused and no illegality or irregularly on the face of record was available so as to interfere with the judgment passed by the Trial Court—Appeal against judgment of the Trial Court, was dismissed.

2008  PLD  112   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ESSA VS State

1. 497(2)-Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 14 & 15—Bail, grant of—Further inquiry—Before lodging F.I.R. in the case, prosecution had lodged earlier F.I.R. which was the main case—Nothing had been recovered from the possession of accused in the main case earlier filed against him through F.I.R., which case ended in his acquittal—Trial Court held prosecution of said case as false and directed Authorities to take action against the Department—Accused was already arrested by A.N.F. officials from International departure of the airport—Subsequent arrest of accused in later F.I.R., would create doubt and require further inquiry—Prosecution had shown five kilograms of charas in the present case which was alleged to have been recovered from the car not from the possession of accused who was in continuous custody and had been acquitted in the main case-Accused was granted bail, in circumstances.

2008  PLD  97   KARACHI-HIGH-COURT-SINDH

ABDUL KHALIQ VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)—Bail, grant of—Recovery of Charas in shape of rods from vehicle—Submission of challan in court after 20 days of registration of F.I.R. without explaining such delay—Prosecution alleged accused to be driver of vehicle, while he did not know driving—Mushirnama did not show that samples of Charas were sealed and signed at the spot—From whole Charas recovered in shape of rods, only 9 samples had been taken and not from each rod—Total weight of samples taken became 90 grams, which fell within definition of Ss.6 & 9(a) of Control of Substances Act, 1997 carrying punishment for two years—Accused was granted bail in circumstances.

2007  SCMR  1378   SUPREME-COURT

MUHAMMAD IRSHAD VS State

—S. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Huge quantity of opium contained in bags was recovered from the possession of accused in presence of witnesses and he was arrested at the spot—Recovery was proved by the member of raiding party

2007  SCMR  393   SUPREME-COURT

MUHAMMAD YOUNAS and others VS Mst. PERVEEN alias MANO

—Ss. 6, 7 & 9—Criminal Procedure Code (V of 1898), S.173—Narcotic Substance, recovery of—Accused found to be innocent during investigation–Validity–Competent Court vested with jurisdiction either to accept or not to accept police report recommen

2007  SCMR  206   SUPREME-COURT

NIAZ-UD-DIN VS State

—-S. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Reappraisal of evidence—Sentence, reduction in—First offender—Allegation against accused/petitioner was’ that 5 Kgs. of heroin was recovered from him—High Court upheld conviction of accus

2007  SCMR  1951   SUPREME-COURT

TAJ WALI VS State

—S. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Charas weighing 1.2000 grams was allegedly recovered from the accused who, at the time of framing the charge admitted the recovery of only 2000 grams of Charas. from. his possession and he in his

2007  SCMR  1905   SUPREME-COURT

GUL KHITAB VS State

—S. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Accused instead of contesting the charge had confessed his guilt during recording of evidence and again in his statement recorded under S.342, Cr.P.C., with the exception of leniency in the matter

2007  SCMR  1671   SUPREME-COURT

MUHAMMAD AKRAM VS THE STATR

—-Ss. 9(c) & 21—Constitution of Pakistan (1973), Art.185(3)—Re­appraisal of evidence—Charas weighing 13 Kgs—Raid and search by Assistant Sub-Inspector—Search warrant, dispensing with—On spy information, Assistant Sub-Inspector conducted a r

2007  SCMR  1591   SUPREME-COURT

Mst. TAJ BIBI VS State

—S. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Sentence, reduction of—Recovery was satisfactorily proved in the case reinforced by the physical arrest of the accused on the spot as well as the report of Chemical Examiner which was in positiv

2007  SCMR  1437   SUPREME-COURT

DAULAT KHAN VS State

—S.9(c)—Constitution of Pakistan (1973), Art:185(3)—Leave to appeal was granted by the Supreme Court to consider questions as to whether the accused could be held guilty for possessing 30 kilograms of contraband Charas when out of 30 packets possess

2007  SCMR  1435   SUPREME-COURT

WAJID KHAN VS State

–S. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Recovery of 189 kilograms Charas and 12 kilogram opium from accused was duly proved by the prosecution—Each packet of Charas and opium weighing one kilogram, provisions of S.9(c) of the Control o

2007  SCMR  1385   SUPREME-COURT

MUHAMMAD GUL VS State

—-S. 9—Constitution of Pakistan (1973), Art.185(3)—Leave to appeal was granted to accused to consider inter alia the contentions that neither he was produced before any Magistrate immediately after his arrest, nor the delay of four days in lodging t

2007  PLD  155   QUETTA-HIGH-COURT-BALOCHISTAN

State VS FAZAL MUHAMMAD

—-Ss. 6, 9 & 2(t)—Control of Narcotic Substances (Regulation of Drugs of Abuse, Controlled Chemical, Equipment and Materials) Rules; 2001—Percentage of morphine present in poppy capsules or poppy straw not to be necessarily proved by prosecution—C

2007  PLD  155   QUETTA-HIGH-COURT-BALOCHISTAN

State VS FAZAL MUHAMMAD

—Ss. 2(t) & 9—Opium—Poppy capsules—Poppy capsule of any species of papaver is included in the definition of `opium’ as assigned under S.2(t) of the Control of Narcotic Substances Act, 1997 and possession thereof is punishable under 5.9 of the said

2007  YLR  2640   PESHAWAR-HIGH-COURT

NOOR HABIB VS State

1. 497—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of—Contraband Charas, no doubt;, allegedly was recovered from the residential room of house of accused, but record had shown that said house was not in exclusive use of the accused—Despite having prior knowledge about the selling of Charas, none from the locality was associated with recovery of alleged contraband—Provisions of S.103, Cr. P. C., it circumstances had not been complied with—Search warrant was issued by Judicial Magistrate whereby S.H.O. concerned was authorized to enter the house and arrest accused, whereas search warrant in question could only be issued by Judge, Special Court A.N.F. and not by Judicial Magistrate—Samples were received in Forensic Science Laboratory after delay of one month and twenty seven days and no explanation was given as to where the samples had been for such a long period—Accused was released on bail, in circumstances.

2007  YLR  2341   PESHAWAR-HIGH-COURT

MUHAMMAD YOUSAF VS State

1. 9(c)—Criminal Procedure Code (V of 1898), S.156(2)—Appreciation of evidence—Protection to investigation conducted by an officer not empowered to investigate—Contention of accused was that arrest and investigation in the case having been carried out by C.I.A. Staff who was not ‘authorized to conduct investigation, the very foundation of the case was illegal and subsequent proceedings including the conviction and sentence were void—Validity—Section 156(2), Cr.P.C. gave protection to investigation conducted by an officer not empowered to investigate—On the strength of statute whereunder Government had issued S.R.Os. read with the law laid down by the apex Court, the arrest and investigation conducted by C.I.A. staff who was part of the police Department, would not vitiate the trial; if on the basis of cogent evidence, it was proved by the prosecution that narcotics were ,found in possession of or under the control of accused such accused could not claim that because of deficiencies or incompetent investigation he was entitled to acquittal—Where an accused by investigation conducted by a wrong Investigating Agency, was prejudiced in his defence, that might be taken as one of the grounds amongst others while recording final judgment, but that by itself, could not be a ground for holding that accused was entitled to acquittal—Accused had not alleged in S.342, Cr.P.C. statement, that he had been prejudiced by the investigation conducted by C.I.A. police—Both defence witnesses could not be believed as they had belatedly stated and such like oral evidence was easy to procure at any stage of the investigation and at the trial—Prosecution had proved to the hilt the charge of possession and control of accused over the narcotics recovered—Accused having not admitted his presence with .the motor car nor the possession of narcotics, he could not argue that to the extent of samples sent, the recovery would be accepted and not beyond that—Samples were taken from the packets recovered were sent to the Chemical Examiner and the samples were sent under an application carrying F.I.R. number of the case in question—Nexus of the samples with the case F.I.R. and the case properly had been made out—Appeal was dismissed accordingly.

2007  YLR  1962   PESHAWAR-HIGH-COURT

WAHID GUL VS State

—-Ss. 9(c) & 25—Control of Narcotic Substances (Government Analysts) Rules, 2000, Rr.4 & 5—Appreciation of evidence—Prosecution witnesses were unanimous on all the broad features of the case and their statements bore all shades of truthfulness—N

2007  YLR  1908   PESHAWAR-HIGH-COURT

BANARAS KHAN VS State

—Ss. 516-A & 561-A—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 32, 33(4) & 74—Superdari of vehicle, petition for—Nothing was on record to show that vehicle in question had been used in the commission of crime with the knowledge of p

2007  YLR  1822   PESHAWAR-HIGH-COURT

MIR ZAMAN VS State

–S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of—Two type of Charas i.e. “Pukhta” or consolidated and “garda” were sent to Forensic Science Laboratory for Chemical examination and both had been opined to be Charas, but w

2007  YLR  1799   PESHAWAR-HIGH-COURT

ABDUL HASSAN VS State

—Ss. 9(c) & 25—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5—Appreciation of evidence—Sentence, reduction in—Both witnesses were subjected to lengthy and searching cross-examination in order to shatter prosecution ve

2007  YLR  1767   PESHAWAR-HIGH-COURT

IBRAHIM VS State

—Ss. 9(c) & 25—Appreciation of evidence—Sentence, reduction in—Both prosecution witnesses had fully supported prosecution story and had remained absolutely consistent, coherent and had successfully faced the test of cross-examination—Contradicti

2007  YLR  1728   PESHAWAR-HIGH-COURT

ZEWAR VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of—Allegedly the police took action on the spy .information that accused was selling Charas—No indication existed that any sale proceed was recovered from the accused—No

2007  YLR  904   PESHAWAR-HIGH-COURT

SABIR KHAN VS State

—-Ss. 9, 20 & 25—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Provisions of S.103, Cr. P. C. had been excluded under the provisions of S.25 of Control of Narcotic Substances Act, 1997—Provisions of S.20 of the Act were dir

2007  YLR  904   PESHAWAR-HIGH-COURT

SABIR KHAN VS State

—S. 9—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5—Appreciation of evidence—Delay in receiving samples by Forensic Science Laboratory—Accused had contended that samples separated from the seized Charas were received

2007  YLR  904   PESHAWAR-HIGH-COURT

SABIR KHAN VS State

–Ss. 9 & 29—Penal Code (XLV of 1860), Ss.419, 420, 170 & 171—Appreciation of evidence-Both prosecution witnesses seemed to he independent witnesses having no reason to falsely implicate accused in the case—No material discrepancy was found at all i

2007  YLR  851   PESHAWAR-HIGH-COURT

MIRMAT KHAN VS State

—S. 540—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Application for re-summoning witnesses for re-examination—Prosecution, after examining two witnesses, closed its cas

2007  YLR  839   PESHAWAR-HIGH-COURT

HAIDER ALI SHAH VS State

—-S. 9(c)—Appreciation of evidence—Sentence, reduction in—Where prosecution wanted to prove that the entire quantity of substance recovered was narcotics, it had to be specifically proved by taking samples from each slab so that no doubt was left

2007  YLR  836   PESHAWAR-HIGH-COURT

NISAR KHAN VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Counsel for accused had stated at bar that accused was neither a previous convict nor had been booked for similar offences in the past and such factual position remain

2007  YLR  713   PESHAWAR-HIGH-COURT

HAZAR GUL VS State

—S. 9(c)—Appreciation of evidence—Samples certificate and destruction certificate, were issued by Civil Judge/Judicial Magistrate Ist Class, whereas competent Court to put accused to trial was ,the Court of Judge, Special Court (C.N.S.) and not the

2007  YLR  373   PESHAWAR-HIGH-COURT

GHUNCHA GUL VS State

—Ss. 9(c), 25, 29 & 48—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Sentence, reduction in—-Search proceedings—Both prosecution witnesses were consistent on material points and no contradiction whatsoever could be pointe

2007  PCRLJ  1677   PESHAWAR-HIGH-COURT

GULBAR KHAN VS State

—-Ss. 9(c), 20, 21, 22 & 25—Criminal Procedure Code (V of 1898), Ss.103 & 537—Spy information—Opium weighing 1100 grams was recovered on the pointation of accused from the house which belonged to his host—Search warrant under Ss.20, 21 & 22 of C

2007  PCRLJ  1306   PESHAWAR-HIGH-COURT

THE STATE through A.N.F. Gilgit VS CHIDI

—-Ss. 179 & 180—Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 14—Jurisdiction of criminal court in inquiries and trial—Anti-Narcotic Force Police arrested a lady, a citizen of China and lodged F.I.R. against her alleging recovery of 800

2007  PCRLJ  1113   PESHAWAR-HIGH-COURT

SAHIB ZADA JEHANGIR VS State

—-S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Further inquiry—Points agitated by the counsel for accused regarding recovery and quantity of narcotics etc., required thorough scrutiny by the Trial Court—Tri

2007  PCRLJ  514   PESHAWAR-HIGH-COURT

MUHAMMAD HASSAN KHAN VS State

—S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9—Dangerous Drugs Act (II of 1930), Ss.8 & 14—Bail, grant of—Further inquiry—Complainant/Investigating Officer, despite lapse of more than one and a half month, had failed to

2007  PCRLJ  483   PESHAWAR-HIGH-COURT

GUL AMIN VS State

—-S. 9(c)—Appreciation of evidence—Benefit of doubt—No credible evidence was on record to connect accused with the commission of offence—Prosecution even had failed to disclose any connection of accused either with the motorcar from which contra

2007  PCRLJ  483   PESHAWAR-HIGH-COURT

GUL AMIN VS State

—-S. 9(c)—Appreciation of evidence—Prosecution primarily was supposed to establish guilt against accused beyond shadow of reasonable doubt by bringing trustworthy, convincing and cogent evidence for the purpose of awarding conviction—To inflict ca

2007  MLD  639   PESHAWAR-HIGH-COURT

State VS RAZA KHAN

—Ss. 9 & 25-Appreciation of evidence—Petition for enhancement of sentence—Accused were convicted and sentenced to suffer ten years’ R.I. each along with fine—State in its revision petition had sought enhancement in sentence awarded to accused by t

2007  MLD  501   PESHAWAR-HIGH-COURT

MUNIR KHAN VS State

—Ss. 9(c) & 29—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5—Appreciation of evidence—Both prosecution witnesses were subjected to lengthy and searching cross-examination, but defence could not shatter their veracity o

2007  MLD  408   PESHAWAR-HIGH-COURT

Mst. NOOR BIBI VS State

—Ss. 9(c), 25 & 29—Appreciation of evidence—Sentence, reduction in—Prosecution witnesses had supported the recovery of 6900 grams of Charas from the possession of accused—Both said witnesses had demonstrated complete unanimity on material points

2007  PLD  160   PESHAWAR-HIGH-COURT

MUHAMMAD RAMZAN VS State

—Ss.9(c) & 25—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Sentence, reduction in—Prosecution had proved its cast against accused beyond any shadow of doubt—Marginal witnesses were put to the test of cross-examination, b

2007  PLD  158   PESHAWAR-HIGH-COURT

ABDUL ALI VS State

—S.9(c)—Appreciation of evidence—Benefit of doubt—Arrest of accused was proved on record on 13-11-1997, but same was shown on 14-11-1997—Since both the agencies i.e. police and Frontier Constabulary Staff were suppressing the facts which were bo

2007  PLD  135   PESHAWAR-HIGH-COURT

AAMIR KHAN VS State

–Ss. 9(c), 25 & 29—Appreciation of evidence—Prosecution witnesses who were marginal witnesses of memo. of recovery through which contraband charas was taken into possession and Investigating Officer, were subjected to lengthy and searching cross-exam

2007  YLR  2880   LAHORE-HIGH-COURT-LAHORE

GHULAM NABI SHAH VS State

1. 9(c)—Appreciation of evidence—Sentence, reduction in—Substantial quantity of “Charas” and opium was recovered from the possession of accused, who was apprehended at the spot—An amount of Rs.7600 was also recovered from personal search of accused—F.I.R. was promptly lodged—Four prosecution witnesses had proved the recovery of narcotics from the accused, who had successfully faced the test of cross- examination—Reports of Chemical Examiner in respect of the recovered “Charas” and opium were positive—Conviction of accused was maintained in circumstances—-Sentence of accused however, was reduced from 10 years’ R.I. to 7 years’ R.I. in view of his ailment, with increase in his fine.

2007  YLR  2867   LAHORE-HIGH-COURT-LAHORE

GHULAM ZOHRA alias RANI VS State

1. 9(b)—Appreciation of evidence—Sentence, reduction in—Counsel for accused did not assail the order of conviction of accused, though according to him raiding party consisted of only the officials which gave rise to a doubt with respect to the weight of narcotics recovered—Credibility of the witnesses having not been impeached, order of conviction was upheld, but was a fit case ‘where sentence awarded to accused could be modified—Sentence was reduced from two years to one year R.I. and sentence of fine was also reduced from Rs.20,000 to Rs.10, 000.

2007  YLR  2518   LAHORE-HIGH-COURT-LAHORE

IZHAR MUBARAK VS State

1. 9(c)—Appreciation of evidence—Recovery of 60 Kgs. Poast in front of shop of accused was proved to the hilt by two prosecution witnesses, besides, the statement of another prosecution witness, had also rendered substantial corroboration to the statements of said prosecution witnesses—Chemical Examiner in his report had observed that it contained broken pieces of poppy heads, straw and dust—All the four packets sent to Chemical Examiner, were reported to contain narcotic material and his report was positive—In presence of statements of prosecution witnesses and report of Chemical Examiner, deposition of Investigating Officer of the recovered contraband materials as ” tumma “, was of no legal value as he was not an expert–Accused did not cross-examine any of prosecution witnesses that recovery effected from him was that of “tumma “—Accused did not even suggest that aspect of the matter to any of witnesses; including prosecution witness whose statement stood rejected by an expert i.e. Chemical Examiner—Recovery memo. and complaint, duly proved by the prosecution witnesses, had left no room to hold that accused was not in active possession of recovered contraband, as he was caught by the police the moment he unloaded four bags in front of his shop—Since the Trial Court had examined the ‘Poast’ recovered from accused, its non-exhibiting, was of no significance and would not result in vitiating the registration of case or trial, held in accordance with law—No material contradiction existed between statements of prosecution witnesses, and minor discrepancies pointed out by counsel for accused, had no reflexes on prosecution case as their statements were recorded after lapse of more than a year from the date of occurrence—Documents produced in defence were not enough to displace the proved case of prosecution of huge quantity of narcotic material—Scan of record and Impugned judgment had revealed that accused was correctly convicted and sentenced for the offence charged without committing any error of law/facts–Impugned judgment passed by the Trial Court, was maintained.

2007  YLR  1867   LAHORE-HIGH-COURT-LAHORE

ABDUL BASIT VS State

—S. 9(c)—Appreciation of evidence—Accused had led to recovery of charas weighing 17 kilograms and opium weighing 15 kilograms, which had been proved by witnesses having no ill-will or bitterness against him—Samples of the recovered substance were

2007  YLR  1490   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ARSHAD QAYYUM VS State

—-S. 9(c)—Evidence—Police witnesses, credibility of—Principle—Police witnesses are competent witnesses in the eye of law and unless they are demonstrated to have any motive or reason to falsely implicate the accused, their testimony cannot be di

2007  YLR  1490   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ARSHAD QAYYUM VS State

—-S.9(c)—Appreciation of evidence—Chemical Examiner’s report regarding sample of the recovered heroin was in positive—Recovery evidence supported by the said positive report inspired confidence—Accused had not challenged the nature of the recove

2007  YLR  1026   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ISHAQUE VS State

—-S. 497—-Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9—Bail, refusal of—Contention of accused was that a quantity of 250 grams of `Post’ was recovered from him which was sent to Chemical Examiner who reported that it contained 0.081

2007  YLR  387   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD YOUSAF VS State

—S. 497(2) —Control of Narcotic Substances Act (XXV of 1997), S.9(b)-Bail, grant of—Further inquiry—According to police record, Investigating Officer, who had recorded the statements of all prosecution witnesses under S.161, Cr. P. C.; had admitte

2007  YLR  385   LAHORE-HIGH-COURT-LAHORE

GHULAM HUSSAIN VS State

—S.426—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Suspension of sentence—Sentence awarded to accused being short (1-1/2 years) was suspended.

2007  YLR  269   LAHORE-HIGH-COURT-LAHORE

Mst. SHAH TAREENA VS State

—Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Sentence, reduction in—Police witnesses—Competency—Violation of S.103 of Cr.P.C.-Effect—Allegation against accused/appellant was that 12 Kgs. of Charas was

2007  YLR  242   LAHORE-HIGH-COURT-LAHORE

MIR HASSAN VS State

–Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Huge quantity of heroin weighing 25-Kilograms was recovered from the bonnet of the motorcar driven by accused—Recovery of narcotic substance had been made from acc

2007  PCRLJ  1502   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SHAFIQUE alias SHEEQA VS State

—Ss. 9(c), 21, 25 & 31—Appreciation of evidence—Prosecution witnesses having no malice or enmity against the accused had supported recovery of 1010 grams “Charas” from him—Fake plantation of such quantity of “Charas” was not probable without any a

2007  PCRLJ  896   LAHORE-HIGH-COURT-LAHORE

State VS Syed SHAFIQ-UR-REHMAN

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.51 & 9(c)—Bail, grant of—Section 51 of Control of Narcotic Substances Act, 1997 is no bar in appropriate cases for grant of bail—Courts in appropriate cases have the power to grant ba

2007  PCRLJ  896   LAHORE-HIGH-COURT-LAHORE

State VS Syed SHAFIQ-UR-REHMAN

—S. 497(5)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Cancellation of bail, refusal of—Conclusions arrived at by Trial Court were based on genuine and logical reasons—No direct evidence was available on record to connect the accuse

2007  PCRLJ  873   LAHORE-HIGH-COURT-LAHORE

State VS MUNAWAR HUSSAIN

–S. 516-A—Control of Narcotic Substances Act (XXV of 1997), Ss.6/7/8/9(c)/14/15/16—Entire case property was directed by Trial Court to be produced before the Court—Validity—Poppy straw weighing 9013. Kgs. allegedly recovered from accused was lyin

2007  PCRLJ  839   LAHORE-HIGH-COURT-LAHORE

NAZIR AHMAD VS State

—S. 9(c)—Appreciation of evidence—Benefit of doubt—One accused’ was neither apprehended at the spot” nor any “Charas” was recovered at his instance—Escape of accused from the spot in, the presence of police party comprising nine police officials

2007  PCRLJ  755   LAHORE-HIGH-COURT-LAHORE

ASKARI LEASING LIMITED through Branch Manager VS State

—Ss. 516-A & 439—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—“Superdari” of the vehicle refused by Sessions Court to the petitioners—Validity—Vehicle admittedly vested in the petitioner-Company which had been leased out to the accus

2007  PCRLJ  426   LAHORE-HIGH-COURT-LAHORE

MITHA KHAN VS State

–Ss. 9(c), 25 & 48—Appreciation of evidence—Sentence, reduction in—No material contradiction existed either in prosecution version as given in F.I.R. or deposition made by prosecution witnesses, whose statements had been reappraised—Said prosecut

2007  PCRLJ  156   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SAEED VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 2(g)(h)(t)(u)(za), 3 & 51—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)—Bail—Refusal of—Recovery of Psychotropic substance—Delay of nine days in se

2007  MLD  1994   LAHORE-HIGH-COURT-LAHORE

FAZAZ ABBAS VS State

—Ss.9(c) & 15—Criminal Procedure Code (V of 1898), Ss.265-C &
412—Appreciation. of evidence—Accused after submission of challan, were produced in the court and case was adjourned for appoint-went of counsel by accused as well as for distribution o

2007  MLD  1852   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SHAFIQ VS State

—S.497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c)/15—Bail, grant of—Further inquiry—Special Prosecutor Anti-Narcotic Force, in all fairness had submitted that after a thorough probe, accused had been found to be innocent as a l

2007  MLD  1372   LAHORE-HIGH-COURT-LAHORE

State VS FARUUKH NADEEM through Branch Manager

—S. 516-A—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c)/15, 74 & 32—Release of vehicle on Superdari—Validity—Trial Court while ordering interim release of the .vehicle to the respondent company had rightly observed that no evidence w

2007  MLD  1058   LAHORE-HIGH-COURT-LAHORE

AMJAD ABBAS VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Quantity of 1000 grams Charas was recovered from the shopping bag lying underneath the driver’s seat of the car—Co-­accused had been admitted to bail and case of ac

2007  MLD  623   LAHORE-HIGH-COURT-LAHORE

NOOR MUHAMMAD VS State

—-S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Further inquiry—Co-accused had been admitted to bail and Court while granting bail to co-accused had observed that no legally incriminating material was on the f

2007  MLD  169   LAHORE-HIGH-COURT-LAHORE

BABAR ALI alias SAJOO VS State

—S. 9(c)—Appreciation of evidence—Witnesses being unanimous in respect of all aspects of prosecution case, their statements could be termed as true and confidence inspiring—Despite lengthy cross-examination by defence, testimony of witnesses could

2007  MLD  81   LAHORE-HIGH-COURT-LAHORE

FAROOQ HUSSAIN VS State

—S. 9(c)—Appreciation of evidence—Sentence, reduction in—Counsel for accused instead of arguing appeal on merits, conceded impugned judgment of the Trial Court, and prayed that sentence of accused be reduced to the extent of half to which, counsel

2007  MLD  46   LAHORE-HIGH-COURT-LAHORE

FAZAL NABI VS State

—-Ss. 9(b) & 25—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Sentence, reduction in—Violation of S.103, Cr.P.C.—Effect—Police witnesses—Competence of—Accused a first offender and previous non-convict—Allegation a

2007  YLR  3144   LAHORE-HIGH-COURT-LAHORE

NADEEM VS State

—S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail, grant of—Allegation of sale of narcotics by the accused was. not supported- by any evidence with the prosecution—No prospective purchaser .was named or arrested at the time of

2007  YLR  3130   LAHORE-HIGH-COURT-LAHORE

OBIAQWU EZEKEKE VS State

—-S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 15—Bail, grant o/~–Further inquiry—.Nothing had been recovered from accused ‘s possession during investigation of the case–Accused had been implicated in the case upon state

2007  YLR  3123   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SARWAR VS State

—S.9(b)—Sentence, reduction in—Conviction of accused was not challenged and only reduction in sentence was sought—Statedly accused was an elderly man of about sixty years of age—Wife of accused was present in Court who stated that she had two yo

2007  YLR  3105   LAHORE-HIGH-COURT-LAHORE

HANOOK BABAR MASIH VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c); 25 & 51—Bail, refusal of—Accused could not establish that he had been involved in case mala fide due to enmity with one Head Constable of the Police–~-Narcotic material/Charas wei

2007  YLR  3082   LAHORE-HIGH-COURT-LAHORE

OBIAQWU EZEKEKE VS State

—-S. 9(c)—Criminal Procedure Code (V of 1898), S.265-K— Appreciation of evidence—No narcotic substance had been ‘recovered from the possession of accused persons and no word had been uttered by any of the prosecution witnesses in their statements

2007  YLR  3034   LAHORE-HIGH-COURT-LAHORE

VICTOR MASIH alias CHHOOTO VS State

—S.9(c)—Appreciation of evidence—One accused had been apprehended cat the spot, while his co-accused who had succeeded to .flee away was arrested on dismissal of his application for pre-arrest bail by Trial Court—Accused had failed to produce any

2007  YLR  3029   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD NAWAZ VS State

—S.497—Control of Narcotic Substances Act (XXV of 1997), S. 9(b)—Bail, grant
of— “Charas ” was neither recovered from person of the accused nor from his place of abode—Accused was not previously involved in any such case—Six police officials c

2007  YLR  3021   LAHORE-HIGH-COURT-LAHORE

Mst. FAZEELAT BIBI VS State

—-Ss. 6, 9 & 2(d)—Prohibition (Enforce­ment of Hadd) Order (4 of 1979), Art.4—Application and scope—Bhang/ hemp, recovery of—When Bhang/hemp is referred to without specification of any particular part of the cannabias plant and without the othe

2007  YLR  3021   LAHORE-HIGH-COURT-LAHORE

Mst. FAZEELAT BIBI VS State

—S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9 & 2(d)—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.4—Bail, grant of—F.I.R. memorandum of recovery and the Chemical Examiner’s report did not specify as to whether the s

2007  YLR  2943   LAHORE-HIGH-COURT-LAHORE

MUMTAZ AHMAD VS State

—S.9(c)—Appreciation of evidence—Benefit of doubt—According to. the statement of prosecution witness,: recovery was allegedly effected of “Poppy Straw in grinded form”, whereas quantity produced before the court was in solid form—Such fact had k

2007  YLR  2894   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ILYAS VS State

—S. 9(c)—Appreciation of evidence—F.I.R. as well as in the Memorandum of Recovery, had not specified as to the shape in which `Charas’ had been recovered from accused ‘s possession,. but both witnesses of the alleged recovery had categorically state

2007  PLD  562   KARACHI-HIGH-COURT-SINDH

Syed QAMAR ALI SHAH VS State

—-S. 9(c)—Appreciation of evidence—Discrepancies in evidence—Effect—Accused was arrested while travelling in a public transport and was carrying 5 kilograms of charas—Accused was convicted by Trial Court and sentenced to 14 years of imprisonme

2007  PLD  562   KARACHI-HIGH-COURT-SINDH

Syed QAMAR ALI SHAH VS State

—-S. 9(c)—Criminal procedure Code (V of 1898), S.516-A, proviso three—Recovery of charas—Proof—Sending of samples for chemical examination—Plea raised by accused was that material not sent to Chemical Examiner was not proved to be charas—Val

2007  PLD  555   KARACHI-HIGH-COURT-SINDH

ALI MURAD VS State

—S. 9(c)—Appreciation of evidence—Benefit of doubt—Recovery of 2 kilograms of Charas—Proof—Receiving of sample by Chemical Examiner—Un-explained delay—Accused was convicted by Trial Court and sentenced to eight years’ imprisonment for poss

2007  YLR  2626   KARACHI-HIGH-COURT-SINDH

GULZAR CHANDIO VS State

S.497—Control of Narcotic Substances Act. (XXV of 1997), S.9(c)—Bail, grant of—-One of the parcels containing the sample had in it the stuff containing the traces of charas only and the other one was not clearly indicating as to from which it had been drawn and it was yet to be established during trial as to whether stuff allegedly recovered from the accused was charas or it contained the traces of charas—Accused having a case for bail, he was admitted to same, in circumstances.

2007  YLR  2620   KARACHI-HIGH-COURT-SINDH

ZULFIQAR ALI VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of—Chemical Examiner’s report had mentioned that examination of samples of the recovered material, had proved them to be containing only “traces of charas “—Special Prosecutor appearing for Anti-Narcotic Force had stated at the bar that they were making up their mind to challenge said report of the Chemical Examiner—Accused had remained in jail since long —Accused having made out a case for grant of bail was admitted to bail, in circumstances.

2007  YLR  2073   KARACHI-HIGH-COURT-SINDH

SAJJAN VS State

—S. 9(b)—Police Order (22 of 2002), Art.18(4)—Appreciation of evidence—Case was replete with contradictions including glaring and major ones, but those either were over-looked by the Trial Court or could not attract its attention—In view of said

2007  YLR  1973   KARACHI-HIGH-COURT-SINDH

NOOR MUHAMMAD VS State

—S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Accused was arrested having a shopper in his hand containing eleven small shoppers—Entire material was taken out and was weighed which was eleven kilograms of Charas-

2007  YLR  1601   KARACHI-HIGH-COURT-SINDH

NAZAR HUSSAIN VS State

—-S. 9(c)—Appreciation of evidence—Accused was allegedly sitting by the side of driver co-accused when the Truck was intercepted and he was not shown to be in joint possession or control of the same, nor he had any concern with the recovered “Charas

2007  YLR  1601   KARACHI-HIGH-COURT-SINDH

NAZAR HUSSAIN VS State

—Ss.9(c), 6 & 29—Appreciation of evidence—Prosecution witnesses were unanimous on salient features and material aspects of the case, who had categorically stated that the accused was the Driver of the Truck from secret cavity of which 560 Kg of “Cha

2007  YLR  1500   KARACHI-HIGH-COURT-SINDH

AMIR GHULAM alias MASTER VS State

—S.9(c)—Accused tried by Court having no territorial jurisdiction—Case remanded—Excise Inspector ‘H’ recovered 200 grams of “Charas” from co-accused at place ‘H’ and lodged the F.I.R.—During investigation accused was found involved in the case a

2007  YLR  1156   KARACHI-HIGH-COURT-SINDH

GHULAM ALI MOGHIMI VS State

—Ss. 9(c) & 29—Qanun-e-Shahadat (10 of 1984), Art.117—Appreciation of evidence—Benefit of doubt—Delay of three months in sending case property to Chemical Examiner despite putting specific question in that regard, delay had not been explained by

2007  YLR  1022   KARACHI-HIGH-COURT-SINDH

MUHAMMAD NOOR VS State

—S. 497, 54, 59 & 156(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9, 21 & 22—Bail, refusal of—Counsel for accused had contended that complainant who searched accused and allegedly recovered property from them being A.S.-I. of police

2007  PCRLJ  1984   KARACHI-HIGH-COURT-SINDH

State VS SAJJAD MUHAMMAD JAFFER

—Ss. 9, 34, 35, 36 & 48—Appreciation of evidence—Government Analyst, report of—Allegation against accused was that their consignment contained narcotics but report of Government Laboratory was negative—Authorities again sent the sample to a Rese

2007  PCRLJ  1805   KARACHI-HIGH-COURT-SINDH

ABDUL GHAFOOR alias GHAFFAR VS State

–S. 497—Control of Narcotic Substances Act (XXV of 1997),. S.9(b)—Bail, grant of–Accused was allegedly found in possession of 500 grams of Charas in the shape of two pieces, out of which only one piece weighing 200 grams was shown to have been sent

2007  PCRLJ  1615   KARACHI-HIGH-COURT-SINDH

Mst. SHAMIM alias SHAMI VS State

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, refusal of—Charas weighing 2 Kilograms was secured from the possession of accused and whole quantity was sent for Chemical Examination—In the absence of established or reaso

2007  PCRLJ  1575   KARACHI-HIGH-COURT-SINDH

AMIR KHAN VS State

—S. 9(c)—Appreciation of evidence—Both counsel for accused and A.A.-G. had conceded that impugned judgment could not be sustained, same be set aside and case of accused be remanded—Judgment to the extent of conviction awarded to accused thus was s

2007  PCRLJ  1364   LAHORE-HIGH-COURT-LAHORE

IMRAN ALI VS PROVINCE OF SINDH through Secretary, Home Department, Sindh Secretariat, Karachi

—Ss. 3 & 9(4)—Control of Narcotic Substances Act (XXV of 1997), S.9(b)(c)—Constitution of Pakistan (1973), Art.199—Constitutional petition—Conviction in foreign country—Petitioner/accused who was apprehended in foreign country, was convicted a

2007  PCRLJ  1103   KARACHI-HIGH-COURT-SINDH

MUHAMMAD FAROOQ KHAN VS State

—S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)—Bail, grant of—Further inquiry—Accused had levelled allegation of enmity against complainant/D.S.P. under whose jurisdiction police station concerned was situated—In view

2007  PCRLJ  1019   KARACHI-HIGH-COURT-SINDH

AMIR BUX VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail, grant of—Only ten grams of narcotic was sent for chemical examination—Allegations as to the enmity as alleged by accused under the political set up, could not be altogether r

2007  PCRLJ  875   KARACHI-HIGH-COURT-SINDH

KHALIDA AKRAM VS State

—S. 497 [as amended by Code of Criminal Procedure (Second Amendment) Ordinance (XXXV of 2006), S.2]—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, refusal of—Bail application of female accused had already been dismissed by High Cou

2007  PCRLJ  493   KARACHI-HIGH-COURT-SINDH

State VS KASHIF ALI

—S. 497(5)—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9 & 25–Bail, cancellation of—Bail was granted to accused-on the ground that prosecution had failed to arrange private witnesses to act as Mashirs—Validity—Spy information

2007  PCRLJ  462   KARACHI-HIGH-COURT-SINDH

DESSER MAL VS State

—S. 9(c)—Appreciation of evidence—Accused allegedly was arrested by Rangers on account of his enmity with a Ranger’s Inspector, from whom accused got a house vacated on account of ill ‘repute of said Inspector—Such fact had created doubt regarding

2007  PCRLJ  139   KARACHI-HIGH-COURT-SINDH

Sayed GHULAM MUSTAFA VS State

—-Ss. 497 & 561-A—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Quashing of proceedings—Only allegation against co-accused was that he having a shopping bag in his hand was with the accused and had run away on seeing th

2007  PCRLJ  139   KARACHI-HIGH-COURT-SINDH

Sayed GHULAM MUSTAFA VS State

–S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 25—Bail, grant of—Accused was apprehended in the town in broad-daylight, but no person from public had been cited as witness—Provisions of S.25 of Control of Narcotic Substances

2007  PCRLJ  89   KARACHI-HIGH-COURT-SINDH

MUHAMMAD FAROOQ KHAN VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51—Bail, grant of—Case of further inquiry—Quantity of narcotics—Tentative assessment of evidence—During raid, police arrested three persons and recovered 25 kilograms of Cha

2007  PLD  238   KARACHI-HIGH-COURT-SINDH

THE STATE/ANTI-NARCOTICS FORCE through Deputy Director (Law), Karachi VS MUHAMMAD IRSHAD

—Ss. 6, 9(c) & 48—Criminal Procedure Code (V of 1898), Ss.516-A & 537—Destruction of recovered property—Procedure—Presence of accused at the time of destruction of recovered property—Necessity—Defects in destruction of property—Effect—Wh

2007  MLD  1846   KARACHI-HIGH-COURT-SINDH

MUHAMMAD NAWAZ VS State

—S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9—Bail, grant of—Out of 10 Kgs. of Charas contained in 10 bags of 1 Kg each, which were allegedly recovered from accused, only one Kg. Charas was sent for chemical examination and no

2007  MLD  1696   KARACHI-HIGH-COURT-SINDH

PIR BUX VS State

—-S. 497, (2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 25—Bail, grant of—Further inquiry—Notwithstanding the bar contained under S.25 of Control of Narcotic Substances Act, 1997 thereby excluding the applicability of S.103, Cr

2007  MLD  1127   KARACHI-HIGH-COURT-SINDH

MUHAMMAD AMIN VS State

—S. 498—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51—Penal Code (XLV of 1860), Ss.302, 324, 353 & 365—Bail before arrest, refusal of—Complainant had resiled from the story narrated in the F.I.R. and had given a totally new stor

2007  MLD  1092   KARACHI-HIGH-COURT-SINDH

NADEEM VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Punishment to accused was provided in view of S.9 of Control of Narcotic Substances Act, 1997 keeping in view the quantity of narcotic which was recovered from accused

2007  MLD  825   KARACHI-HIGH-COURT-SINDH

HABIBULLAH VS State

—-S. 9(c)—Appreciation of evidence—Principles—Finding of guilt against accused must rest surely on the evidence of unimpeachable character and all factors and circumstances leading to doubt are to be resolved in favour of accused and cannot be wit

2007  MLD  825   KARACHI-HIGH-COURT-SINDH

HABIBULLAH VS State

—S. 9(c)—Appreciation of evidence—Benefit of doubt—Contradictions in prosecution evidence being very material and major in nature, could neither be reconciled nor brushed aside, more particularly when the prosecution witnesses were literate and ex

2007  MLD  263   KARACHI-HIGH-COURT-SINDH

ASLAM PERVEZ VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of—Contention of accused as that he had been implicated on the statement of co-accused and that narcotics were not recovered from his possession—Accused was granted bail .

2007  MLD  240   KARACHI-HIGH-COURT-SINDH

ABDUL LATEEF VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—State counsel had no objection to grant of bail to accused—Police did not show as to how much quantity of Charas was secured from personal search of accused—Total

2007  PLD  110   KARACHI-HIGH-COURT-SINDH

AHUDHA MANLIKI VS State

—Ss. 6, 7, 8 & 9—Drug trafficking, smuggling and normal possession of drugs—Drug trafficking and smuggling from Pakistan to another country—Criteria and yardstick for examining the cases of normal possession or transportation of narcotic drugs, sh

2007  PLD  110   KARACHI-HIGH-COURT-SINDH

AHUDHA MANLIKI VS State

–S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 51—Bail, refusal of—Accused being foreign national, possibility of absconding of accused, could not be ruled out and once he would leave the country through any illegal method his att

2007  YLR  3125   KARACHI-HIGH-COURT-SINDH

SHAHNAZ ANWAR VS BABAR

—S.497—Penal Code (XLV of 1860), S.420—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9—West Pakistan Arms Ordinance (XX of 1965), S.13(4)—Constitution of Pakistan (1973), Art.199—Constitutional petition—Bail, grant of—Arrest of

2007  YLR  3096   KARACHI-HIGH-COURT-SINDH

BILAL VS State

—S.9(c)—Appreciation of evidence—Accused was the clearner of the Bus, from the secret cavities of which 372 Kilograms of “Charas” had been recovered and which was being driven by the convicted co-­accused—Mere presence of the accused in the bus w

2007  YLR  3096   KARACHI-HIGH-COURT-SINDH

BILAL VS State

—Ss. 9(c) & 29—Appreciation of evidence—Prosecution witnesses had withstood the test of cross-examination and nothing had come on record to discard their evidence—Report of Chemical Examiner regarding samples of “Charas” was positive—“Charas” we

2007  YLR  3087   KARACHI-HIGH-COURT-SINDH

SHAFIULLAH VS State

—-S.9(c)—Appreciation of evidence—Entire prosecution case hinged upon the Chemical Analyzer’s report—Delay of four days occurred in between the periods, of sending the sample and receipt of the name by the Chemical .Analyzer, which had hat been ex

2007  YLR  3087   KARACHI-HIGH-COURT-SINDH

SHAFIULLAH VS State

—S.9(c)—Appreciation of evidence—Benefit of doubt—Principles—Every doubt is required to be resolved in favour of the accused.

2007  YLR  3080   KARACHI-HIGH-COURT-SINDH

MUHAMMAD PANAH VS State

—-Ss.9(e) & 9(b)—Appreciation of evidence—Sentences, reduction in—Prosecution evidence was unanimous on all material aspects of the case having no material contradictions or discrepancies and the same was credible—Tests conducted by Chemical Ana

2007  YLR  3055   KARACHI-HIGH-COURT-SINDH

SHAUKAT KHAN VS State

—-S.9(c)—Appreciation of evidence—Prosecution had proved its case against accused beyond any reasonable doubt for the reasons that vehicle from which contraband articles were recovered belonged to the brother of accused who was maternal uncle of co-

2007  YLR  2968   KARACHI-HIGH-COURT-SINDH

MAHBOOB ALI VS State

—-S.497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Further inquiry—Contraband charas weighing 1010 grams had been recovered from the possession of accused during raid—Said quantity having marginally exceeded the

2007  PCRLJ  815   FEDERAL-SHARIAT-COURT

ASHRAF GUL VS State

—Arts. 3 & 4—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Appreciation of evidence—Accused persons had admitted in his cross-examination that the police had no enmity towards them—Counsel for accused was unable to pinpoint as to what

2006  SCMR  1051   SUPREME-COURT

WARIS KHAN and 2 others VS State

—S. 9(c)—Reappraisal of evidence—Sentence, reduction in—Chemical examination—Failure to send samples from each packet containing narcotics—Effect—Both the accused were convicted for transporting and possessing 48 kilogram of Charas and 1.2 k

2006  SCMR  1041   SUPREME-COURT

Mst. HUSNA SAADAT VS State

–S. 9—Reappraisal of evidence—Sentence, reduction in—Recovery of 9.5 kilogram Charas—Carrier—Quantum of sentence—Accused lady was convicted for transporting Charas weighing 9.5 kilogram and was sentenced to ten years’ imprisonment—Validity-

2006  SCMR  953   SUPREME-COURT

AZMAT ULLAH VS State

–S. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Recovery witnesses had no malice or reasons to falsely implicate the accused with the possession of a huge amount of “Charas” weighing five kilograms and their testimony could not be discarded mere

2006  SCMR  800   SUPREME-COURT

ZULFIQAR AHMAD VS State

—S. 9(c)—Criminal Procedure Code (V of 1898), S.103—Constitution of Pakistan (1973), Art.185(3)—Section 103, Cr.P.C. having been specifically excluded under the provisions of the Control of Narcotic Substances Act, 1997, non-citing of any witness

2006  SCMR  468   SUPREME-COURT

Sh. MUHAMMAD TASLEEM VS State

—S. 497-Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9(c), 14, 15 & 16—Constitution of Pakistan (1973), Art.185(3)—Bail, refusal of—Investigating agency, after carrying out investigation in the matter, had placed the name of the a

2006  SCMR  351   SUPREME-COURT

MUHAMMAD NAEEM VS State

–S. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Prosecution evidence supporting the case against the accused was consistent and convincing—Initial onus had been successfully discharged by the prosecution by substantiating that the accused on t

2006  SCMR  304   SUPREME-COURT

EHSANU LLAH VS State

–S. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Prosecution evidence was natural and convincing—Huge quantity of 19 kilograms of opium had been recovered from the house of accused at his pointation, which in ordinary circumstances, could not b

2006  SCMR  299   SUPREME-COURT

KHAIR MUHAMMAD VS THE STATE

—S. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Accused had led to the recovery of 61 Kgs. “Charas” from the secret parts of the Pajero Jeep about which he alone had the exclusive knowledge—Samples sent to the Chemical Examiner were confirmed

2006  PLD  61   SUPREME-COURT

GHULAM QADIR VS THE STATE

—S. 9(c)—Appreciation of evidence—Driver’s responsibility regarding the narcotics being carried in his vehicle—Driver cannot be absolved from the responsibility if the contraband items are being transported openly on the roof of the vehicle driven

2006  PLD  61   SUPREME-COURT

GHULAM QADIR VS THE STATE

—S. 9(c)—Appreciation of evidence—No acquittal on technicalities—Courts in such like cases are supposed to dispose of the matter with dynamic approach, instead of acquitting the drug paddlers on technicalities.

2006  PLD  61   SUPREME-COURT

GHULAM QADIR VS THE STATE

—S. 9(c)—Constitution of Pakistan (1973), Art. 185(3)—Poppy Flowers weighing 320 kg. packed in eight sacks were allegedly recovered from the vehicle being driven by the accused—Presence of the accused being a driver of the vehicle was not denied–

2006  PLD  265   SUPREME-COURT

SIKANDAR RAZA VS State

–S. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Irrespective of the ocular testimonies judicial confession of the accused had also been brought on record—Huge quantity of 30 kgs. of “Charas” had been secured at the pointation of accused from i

2006  SCMR  1826   SUPREME-COURT

AZIZ-UR-REHMAN VS State

—S. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Reappraisal of evidence—Plea though plausible but not supported by evidence—Allegation against accused was that Charas weighing 30 Kgs. was recovered from the dashboard ‘of car in which accuse

2006  SCMR  1539   SUPREME-COURT

JOSHUA CHIGBOGU VS State

—S. 9—Punishment—Sentence is to be proportionate to the heroin powder in the form in which it is marketable, regardless of its composition.

2006  SCMR  1539   SUPREME-COURT

JOSHUA CHIGBOGU VS State

–S. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Sentence—Accused being a foreigner was not a consideration for determining the quantum of sentence as the penal law of the country had to be applied with same rigor to everyone subjected to it, r

2006  SCMR  1378   SUPREME-COURT

MUHAMMAD RIAZ and 2 others VS State

–S. 9(c)-Constitution of Pakistan (1973), Art.185(3)—Punishment—Sentence, reduction in—Three accused involved in the offence, one male and two females—Contention of the accused persons was that evidence on record showed opium and Charas allegedly

2006  SCMR  1343   SUPREME-COURT

ANWAR KHAN and another VS State

—-S. 9(c)—Criminal Procedure Code (V of 1898), 5.164—Constitution of Pakistan (1973), Art.185(3)—Reappraisal of evidence—Retracted confession—Nothing had been brought on record to suggest that the confession of the accused was the result of co

2006  SCMR  1302   SUPREME-COURT

THE STATE through Advocate-General, Sindh VS DAWOOD

—S. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Trial Court convicted accused, but High Court on reassessment of evidence on record directed his acquittal which had been called in question through present petition—Reasons recorded by High Cou

2006  SCMR  1265   SUPREME-COURT

THE STATE through Force Commander, Anti-Narcotics Force, Rawalpindi VS KHALID SHARIF

—S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 14 & 15—Bail—Affidavits of witnesses exonerating accused after having provided incriminating evidence involving the accused in the offence at investigation stage—Effect—Cases o

2006  SCMR  1265   SUPREME-COURT

THE STATE through Force Commander, Anti-Narcotics Force, Rawalpindi VS KHALID SHARIF

—S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 14 & 15—Bail—Bail applications are to be disposed of on the basis of material available on the record and the Court is required to form a tentative assessment of the evidence avail

2006  SCMR  1183   SUPREME-COURT

AMEER NAWAZ VS State

–S. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Reappraisal of evidence—Accused could not refer to any misreading, non-appraisal of evidence or any glaring irregularity in the impugned judgment of the High Court—Prosecution had fully establi

2006  PCRLJ  902   QUETTA-HIGH-COURT-BALOCHISTAN

BALOCH KHAN VS State

—Ss. 9(c) & 21—Appreciation of evidence—Prosecution had failed to prove that entire material recovered, was narcotics, but had been able to prove that two of the bundles recovered from the possession of each of accused, contained narcotics, weighing

2006  PLD  39   PESHAWAR-HIGH-COURT

MUHAMMAD MUSHTAQ VS State

—S. 9(c)—Control of Narcotics (Government Analysts) Rules, 2001, Rr.4 & 5—Appreciation of evidence—Delay in sending samples of narcotics to Forensic Science Laboratory—Rules 4 & 5 of Control of Narcotics (Government Analysts) Rules, 2001, had pl

2006  PLD  39   PESHAWAR-HIGH-COURT

MUHAMMAD MUSHTAQ VS State

–Ss. 9(c), 25, 29, 35 & 36—Criminal Procedure Code (V of 1898), Ss.103 & 516-A—Appreciation of evidence—Prosecution, in order to prove apprehension of accused and recovery of Charas and opium from the secret cavities of the car, had produced two wi

2006  YLR  2243   PESHAWAR-HIGH-COURT

AKHTAR-UL-ISLAM VS State

—Ss. 9(c), 20, 21 & 25—Criminal Procedure Code (V of 1898), 5.103—Appreciation of evidence—Neither a search warrant was obtained nor a lady constable was taken to the house of accused for the purpose of raid—Provisions of S.103, Cr. P. C. though

2006  YLR  1132   PESHAWAR-HIGH-COURT

MUHAMMAD RAMZAN VS State

—-S. 497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3—Control of Narcotic Substances Act (XXV of 1997), S.9(a)—Bail, grant of-Recovery of 20 grams heroin—Accused was not a previous convict and had suffered eight months’ detention–

2006  YLR  1111   PESHAWAR-HIGH-COURT

FAIZULLAH VS State

–S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(b)(c), 20 & 21—Bail, refusal of-Recovery of three plastic bags containing heroin, charas, bhang and opium weighing 30 grams, 600 grams, 800 grams and 50 grams respectively—Non­ associat

2006  YLR  1100   PESHAWAR-HIGH-COURT

AKRAM VS State

–S. 497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3—Control of Narcotic Substances Act (XXV of 1997), S.9(a)—Bail, grant of-Recovery of 15 kilograms “Shang” from house of accused—Raid was conducted at 10 p.m. without search warrant

2006  YLR  401   PESHAWAR-HIGH-COURT

MAMOOR SHAH VS State

–S. 9(b)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.6—Appreciation of evidence—Prosecution, in case of narcotics, was under a heavy legal obligation to prove that material recovered from the possession of accused was narcot

2006  YLR  378   PESHAWAR-HIGH-COURT

Mst. SABIHA VS State

—S. 9(c)-Appreciation of evidence—Prosecution witnesses produced to prove factum of apprehension of accused and recovery of contraband Charas from her possession, had fully supported prosecution story—From perusal of statements of said witnesses and

2006  YLR  340   PESHAWAR-HIGH-COURT

MUNIR KHAN VS State

—S. 9(c)—Appreciation of evidence—Defence version—When an accused at a criminal trial would take a specific plea, the onus invariably would shift on him and he would be required to produce evidence and prove his plea which at least should be suppo

2006  YLR  340   PESHAWAR-HIGH-COURT

MUNIR KHAN VS State

—Ss. 9(c), 20 & 25—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Two recovery witnesses seemed to be independent witnesses having no reason to false

2006  YLR  340   PESHAWAR-HIGH-COURT

MUNIR KHAN VS State

–S. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5—Appreciation of evidence—Delay in dispatching samples for test or analysis–Contention of accused was that samples separated from the seized Charas was received by

2006  YLR  207   PESHAWAR-HIGH-COURT

GUL REHMAN VS State

—S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4—Bail, grant of—Further inquiry—Tender age of accused was not denied and his status of being regular student was

2006  PLD  201   PESHAWAR-HIGH-COURT

REHMAT WALI VS State

—-S. 9(c)—Appreciation of evidence—Contradictions were appearing both in the relevant documents as well as in the statements of prosecution witnesses recorded in the case with regard to the recovery of contraband charas as well as its quantity—For

2006  PLD  176   PESHAWAR-HIGH-COURT

MAQSOOD AKBAR VS State

—-Ss. 9(c) & 25—Appreciation of evidence—Both complainant and prosecution witness had supported recovery of 1900 grams of opium from possession of accused at the given date, time and place—Both said witnesses had demonstrated complete unanimity on

2006  PCRLJ  1061   PESHAWAR-HIGH-COURT

MUHAMMAD AMIN VS State

—Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Sentence, reduction in—Prosecution, in order to prove apprehension of accused and recovery of contraband Charas from his possession, had produced two witnesses—

2006  PCRLJ  1061   PESHAWAR-HIGH-COURT

MUHAMMAD AMIN VS State

–S. 9(c)-Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5—Appreciation of evidence—Delay in dispatching sample for analysis—Effect—Accused had contended that as samples separated from contraband Charas was dispatched for

2006  PCRLJ  988   PESHAWAR-HIGH-COURT

AMJAD VS State

—S. 9(c)—Control of Narcotic Substances (Government Analysts) Rules 2001, Rr.4 & 5—Delay in sending sample to Forensic Science Laboratory—Contention of accused was that samples separated from seized Charas were received by Forensic Science Laborat

2006  PCRLJ  988   PESHAWAR-HIGH-COURT

AMJAD VS State

—Ss. 9(c), 20 & 25—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Non-associating two respectable persons of locality in search and recovery proceedings—Effect—Objection with regard to non-compliance of provisions of S.103

2006  PCRLJ  988   PESHAWAR-HIGH-COURT

AMJAD VS State

–Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Prosecution witnesses had fully supported prosecution story—Said witnesses remained absolutely consistent, coherent and had successfully faced the test of cross-ex

2006  PCRLJ  887   PESHAWAR-HIGH-COURT

SAID ALAM VS State

—-S. 9(c)—Appreciation of evidence—Co-accused was also convicted and sentenced with accused—Both accused and co-accused were not related to each other—Community of interest between both of them, had not been shown—Mere fact that both of them w

2006  PCRLJ  887   PESHAWAR-HIGH-COURT

SAID ALAM VS State

–S. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5—Appreciation of evidence—Delay in sending sample to Forensic Science Laboratory—Accused had contended that as sample separated from seized Charas was sent to Fore

2006  PCRLJ  887   PESHAWAR-HIGH-COURT

SAID ALAM VS State

–Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S.103—Appreciation of’ evidence—Sentence, reduction in—Prosecution witnesses were unanimous on all broad features of the case and their statements bore all shades of truthfulness—No reason app

2006  PCRLJ  846   PESHAWAR-HIGH-COURT

IQBAL KHAN VS State

–Ss. 9(c), 21, 25, 29, 35 & 36—Criminal Procedure Code (V of 1898), S.103—Penal Code (XLV of 1860), S.75—Appreciation of evidence—Prosecution, in order to establish its case had produced two witnesses—Defence could not prove as to why police wo

2006  PCRLJ  846   PESHAWAR-HIGH-COURT

IQBAL KHAN VS State

–S. 9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5—Appreciation of evidence—Delay in sending samples for analysis—Counsel for accused had submitted that samples separated from the seized Charas were sent after thr

2006  PCRLJ  840   PESHAWAR-HIGH-COURT

INAYAT ULLAH VS State

—S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)—Bail, grant of—Further inquiry—Report of the Laboratory revealed that sample was received in Laboratory a

2006  PCRLJ  835   PESHAWAR-HIGH-COURT

MUHAMMAD UMAR VS State

–S. 9(c)—Appreciation of evidence—Murasila as well as statements of two Police Officers showed that bag containing Charas in question was taken by a Head Constable who searched it—Said Head Constable had been abandoned for no reason—In presence o

2006  PCRLJ  830   PESHAWAR-HIGH-COURT

TAJ MUHAMMAD VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Forensic Science Laboratory report had been received with delay—Complete challan could be submitted to the Trial Court in accordance with provisions of law well with

2006  PCRLJ  726   PESHAWAR-HIGH-COURT

SHERIN MUHAMMAD VS State

–S. 497(2)—Control of Narcotic Substances Act (XXV of’ 1997), S.9—West Pakistan Arms Ordinance (XX of 1965), S.13—Bail, grant of–Further inquiry—Contraband Charas weighing 1130 grams had been recovered from the house of accused during raid, whic

2006  PCRLJ  316   PESHAWAR-HIGH-COURT

FIDA MUHAMMAD VS State

—Ss. 9(c) & 29—Appreciation of evidence—Prosecution had proved the guilt of accused beyond reasonable doubt and had successfully discharged its burden through consistent and confidence inspiring evidence—Accused was supposed to have shown that Cha

2006  PCRLJ  316   PESHAWAR-HIGH-COURT

FIDA MUHAMMAD VS State

—Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Recovery proceedings—Accused had contended that as per statement of prosecution witness independent witnesses were available at the scene of occurrence, but they

2006  PCRLJ  316   PESHAWAR-HIGH-COURT

FIDA MUHAMMAD VS State

–Ss. 9(c), 20, 21 & 22—Criminal Procedure Code (V of 1898), Ss.516-A & 537—Appreciation of evidence—Non-obtaining of warrant and non-issuance of notice to accused before destruction of contraband Charas—Legality—Accused had contended that despi

2006  PCRLJ  301   PESHAWAR-HIGH-COURT

SAJID MUHAMMAD VS State

–S. 9(c)—Criminal Procedure Code (V of 1898), S.340—Appreciation of evidence—Right of accused to be defended—Accused remained unrepresented throughout the proceedings and was prejudiced in his defence—Only on one date attendance of counsel for

2006  PCRLJ  228   PESHAWAR-HIGH-COURT

NIAZ MUHAMMAD VS State

—S. 9(b)—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5—Appreciation of evidence—Delay in sending sample to Forensic Science Laboratory and delay in receiving report—Accused had contended that sample separated from se

2006  PCRLJ  228   PESHAWAR-HIGH-COURT

NIAZ MUHAMMAD VS State

—Ss. 9(b) & 25—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Search and recovery proceedings—Witnesses produced by prosecution to prove factum of

2006  PCRLJ  110   PESHAWAR-HIGH-COURT

MAQBOOL VS State

—S. 9(c)—Criminal Procedure Code (V of 1898), S.540—Appreciation of evidence—Prosecution, in order to prove factum of apprehension of accused and recovery of contraband Charas from the secret cavities of the truck in question, had produced five wi

2006  MLD  1501   PESHAWAR-HIGH-COURT

AZIZ KHAN VS State

—Ss. 9 & 20—Appreciation of evidence—Only defence of accused was that discrepancies were appearing in the case and that contraband item was not recovered from his personal possession and that accused in other cases whose statement was recorded on th

2006  MLD  1121   PESHAWAR-HIGH-COURT

MUHAMMAD ALI VS State

—-Ss. 9(c) & 29—Presumption of possession of illegal articles—Where prosecution was made under Control of Narcotic Substances Act, 1997, S.29 of said Act there was presumption of possession of illicit articles, unless the person prosecuted, rebutted

2006  MLD  1121   PESHAWAR-HIGH-COURT

MUHAMMAD ALI VS State

—S. 9(c)—Control of Narcotic (Government Analysts) Rules, 2001, Rr.4 & 5—Appreciation of evidence—Delay in sending samples to Laboratory for analysis—Effect—Control of Narcotic (Government Analysts) Rules, 2001, had placed no bar on Investigat

2006  MLD  1121   PESHAWAR-HIGH-COURT

MUHAMMAD ALI VS State

—Ss. 9(c), 25 & 29—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Both complainant and other prosecution witness had supported recovery of 129 kilograms Charas from one motor car and 322.400 kilograms from the other—Both wit

2006  MLD  747   PESHAWAR-HIGH-COURT

KHAN BADSHAH alias KHANO VS State

—-S. 9(c)—Control ‘of Narcotics (Government Analysts)’ Rules, 2001, Rr.4 & 5—Appreciation of evidence—Late dispatch of sample to Laboratory for Chemical examination—Rules 4 & 5 of Control of Narcotics (Government Analysts) Rules, 2001 had placed

2006  MLD  747   PESHAWAR-HIGH-COURT

KHAN BADSHAH alias KHANO VS State

—S. 9(c)—Appreciation of evidence—Prosecution had produced sufficient evidence to connect accused with crime in question—No ill-will or motive on the part of witnesses could be pointed out by accused in course of trial—All witnesses were subject

2006  MLD  361   PESHAWAR-HIGH-COURT

Mst. GRANA VS State

—-Ss. 9(c) & 77—Control of Narcotic (Government Analysts) Rules, 2001, Rr.4 & 5—Appreciation of evidence—Dispatch of sample for test of analyst—Contention of accused that samples dispatched for analysis beyond seventy two hours and report receiv

2006  MLD  361   PESHAWAR-HIGH-COURT

Mst. GRANA VS State

—Ss. 9(c), 25 & 29—Criminal Procedure Code (V of 1898), Ss.52 & 103—Appreciation of evidence—Report of Chemical Examiner was in positive and all prosecution witnesses were consistent on material points and no contradiction whatsoever could be poin

2006  MLD  361   PESHAWAR-HIGH-COURT

Mst. GRANA VS State

—Ss.9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Recovery and search proceedings—Purpose of S.103, Cr.P.C.—Purpose of S.103, Cr.P.C. was to ensure that testimony given in Court in regard to the result of a search, should not depend upon

2006  MLD  154   PESHAWAR-HIGH-COURT

IBRAHIM VS State

–S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of—Exclusive possession of accused regarding alleged recovery of contraband Charas, especially in the light of non-availability of accused at the time of raid, could be prove

2006  MLD  143   PESHAWAR-HIGH-COURT

ISRARUDDIN VS State

—Ss.497 & 173—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of—Challan of case, though was completed and signed after four days of occurrence, but was not put in Court—Mere signing of complete challan Form was not observance

2006  PLD  128   PESHAWAR-HIGH-COURT

Mst. ZUBAIDA SADRUDDIN VS State

—-S. 9(c)—Appreciation of evidence—Not a single witness had stated that at any stage of investigation, accused was asked, if she was the owner of suit-case in question from which heroin was recovered—No evidence was led by the prosecution to prove

2006  PLD  74   PESHAWAR-HIGH-COURT

MUHAMMAD DAUD VS State

–Ss. 9(c), 21, 22, 25 & 29—Criminal Procedure Code (V of 1898), Ss.103 & 537—Appreciation of evidence—Search and seizure proceedings—Prosecution had established factum of recovery beyond shadow of doubt—Arrest, seizure and investigation by an i

2006  PLD  300   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SHAFIQ QURESHI VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, refusal of—Quantity of the contraband recovered from the accused would determine the punishment of the offence and not the percentage of the same as worked out by the Chemical

2006  YLR  3095   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD RAMZAN VS State

—Ss. 497(2) & 561-A—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 15 & 51(1)—Bail, grant of—-Further inquiry—Prosecution’s own case was that no narcotic substance had been recovered from physical possession of the accused—Nothing

2006  YLR  3039   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD FAISAL VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, refusal of—Co-accused was sitting on driving seat of relevant vehicle and he had himself got opium recovered from a cavity on the door of that vehicle towards the driver’s side

2006  YLR  3039   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD FAISAL VS State

—Ss. 497(2) & 561-A—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51(1)—Bail, grant of—Further inquiry—Nothing had been recovered from physical possession of accused or at his instance—Accused was not sitting on the driving seat

2006  YLR  3009   LAHORE-HIGH-COURT-LAHORE

GHULAM QADIR VS State

—S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Bail, grant of—Further inquiry—Accused had pleaded that motorcycle from which narcotic substance was allegedly recovered, did not belong to him and that he had no link with the

2006  YLR  2979   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD RASHID VS State

–S. 9(c)—Qanun-e-Shahadat (10 of 1984), Art.132—West Pakistan Arms Ordinance (XX of 1965), S.13—Appreciation of evidence—Benefit of doubt—Examination-in-Chief and cross-examination, recording of—Recovery of narcotics—Proof—Site plan, prep

2006  YLR  2972   LAHORE-HIGH-COURT-LAHORE

1. ASLAM VS State

–S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 21—Bail, grant of—Further inquiry—Case had been registered on the report of Assistant Sub-Inspector of police who prepared the recovery memo. and also recorded statements of a

2006  YLR  2969   LAHORE-HIGH-COURT-LAHORE

SHAMIM alias TANVIR VS State

—S. 9(c)—Appreciation of evidence—Defence evidence had not furnished any basis to prove the innocence of accused—Positive report of the Chemical Examiner, admittedly, related to that particular slab of “Charas ” out of which the sample was taken a

2006  YLR  2960   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ASHFAQ VS State

—Ss. 9(c), 15, 47 & 48—Appreciation of evidence—Witnesses, who had carried the raid, effected the seizure and arrested accused, though were all official witnesses, but nothing was on record to suggest any ill-will against any of the prosecution witn

2006  YLR  2927   LAHORE-HIGH-COURT-LAHORE

RASHID AMUDALA VS State

—S. 9(c)—Appreciation of evidence—Heroin weighing 1300 grams contained in 89 Capsules was recovered from the stomach wash of the accused—Accused was stated to be a first offender who had been misled to act as a carrier for a person who was living

2006  YLR  2826   LAHORE-HIGH-COURT-LAHORE

IFTIKHAR AHMED alias ALI VS State

–Ss. 6, 9, 36(2) (1) & 47—Control of Narcotic Substances (Government Analysts) Rules 2001, R.6—Criminal Procedure Code (V of 1898), S.510—Report of Chemical Examiner —Evidenciary value—Scope—Non-observance of R.6 of Control of Narcotic Substa

2006  YLR  2811   LAHORE-HIGH-COURT-LAHORE

CHARAGH SHAH VS State

—S. 9(b)—Appreciation of evidence—Recovery of narcotic substance—Sentence, reduction in—Accused had prayed only for reduction of sentence in the circumstances of the case—Prosecution witnesses had no previous enmity or ill-will against accused

2006  YLR  2801   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD NAEEM SHAH VS State

—-. 9(c)—Appreciation of evidence— Defence despite lengthy and searching cross-examination, had failed to shatter the credibility of the recovery witnesses who belonged to police department—Nothing was brought on the record to show that the recove

2006  YLR  2797   LAHORE-HIGH-COURT-LAHORE

Mirza MUHAMMAD IQBAL BAIG VS FEDERATION OF PAKISTAN

—S. 2—Prohibition (Enforcement of Hadd) Order (4 of 1979), Preamble and Art. 314— Control of Narcotic substances Act (XXV of 1997), Preamble & S.9—Constitution of Pakistan (1973), Art.199—Constitutional petition—Placing of the name of the peti

2006  YLR  2756   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD IQBAL VS State

—-S. 9(c)—Appreciation of evidence—Sentence, reduction in—Accused had not challenged his conviction recorded by the Trial Court against him, but had only requested for reduction of his sentence—Accused was apprehended red-handed while in possess

2006  YLR  2668   LAHORE-HIGH-COURT-LAHORE

HASSAN RAZA alias TAIDI VS State

—Ss. 9 & (c)— Appreciation of evidence—Record had shown that recovered narcotic substance was never exhibited as a case property nor it was put to accused during their statement under S.342, Cr. P. C. —Non production of recovered substance in the

2006  YLR  2642   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SADIQ VS State

—S. 9(b)—Appreciation of evidence—Nothing was recovered from the person of accused—Recovery of “Charas ” was allegedly effected from the “Dera of the accused which was a cattle shed meant for tethering of cattle and was not in his exclusive posses

2006  YLR  2642   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SADIQ VS State

—S. 9(b)—Appreciation of evidence—Police officials were the only prosecution witnesses in the case and the anxiety of the local police to rope in all the male members of the family of the accused was borne out from the record—Nothing was recovered

2006  YLR  2487   LAHORE-HIGH-COURT-LAHORE

SHAHID ALI VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b) & 51(2)—Bail, grant of—Two separate raids were conducted within a period of four hours by same complainant/police officer on the same house and separate quantity of heroin was alle

2006  YLR  2464   LAHORE-HIGH-COURT-LAHORE

ZULFIQAR ALI VS State

–S. 9(c)—Appreciation of evidence—Evidence of prosecution was consistent and confidence-inspiring, which testimony was not shaken in cross-examination—No ill-will had been mentioned against police or officials who were present on patrol party—Acc

2006  YLR  2378   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ABBAS VS State

—-S. 9(a) (c)—Appreciation of evidence—Alleged recovery of narcotic substance, though had been effected from possession of accused, but none of prosecution witnesses had uttered even a single word as to what had happened to recovered substance after

2006  YLR  2376   LAHORE-HIGH-COURT-LAHORE

ASMAT ULLAH alias BILLA PATHAN VS State

—S. 9(a) (c)—Appreciation of evidence—Police Officer concerned, had acknowledged before the Trial Court that at the time of recovery from accused’s possession, Charas was in the form of various pieces and sample of that Charas was taken only from on

2006  YLR  2061   LAHORE-HIGH-COURT-LAHORE

JAVED IQBAL VS State

—S. 9(c)—Appreciation of evidence—Escape of the accused in three successive raids by the police leaving behind incriminating articles was not believable—Accused, after having escaped in three raids would not straightaway proceed to his residential

2006  YLR  2003   LAHORE-HIGH-COURT-LAHORE

SHAUKAT ALI alias BILLA VS State

—S. 9(c)—Appreciation of evidence–Inspector Anti-Narcotic Force prepared a report on basis of which formal F.I.R. was drawn and he made detailed statement in accordance with the said report—Inspector had been fully supported by other prosecution wi

2006  YLR  1975   LAHORE-HIGH-COURT-LAHORE

MUMTAZ AHMAD VS State

—S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Further inquiry—Persons named in F.I.R. were alleged to be openly selling narcotics, but no such activity was found by the raiding party—Accused was apprehended

2006  YLR  1919   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AFZAAL VS State

—S. 9(b)—Appreciation of evidence—Sentence reduction in—Counsel for accused at the very outset opted not to challenge conviction of accused, but had only prayed for reduction in the sentence on the ground that accused were not previous convicts—

2006  YLR  1919   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AFZAAL VS State

–S. 9(b)—Appreciation of evidence—Sentence reduction in—Counsel for accused at the very outset opted not to challenge conviction of accused, but had only prayed for reduction in the sentence on the ground that accused were not previous convicts—A

2006  YLR  1834   LAHORE-HIGH-COURT-LAHORE

Dr. EMMANUEL ONUWABUCHI KEKE VS State

—Ss. 9(c) & 15—Criminal Procedure Code (V of 1898), S.265-K—Appreciation of evidence—Accused had not been arrested at the spot and no narcotic substance had been recovered from his possession during investigation of the case—F.I.R. itself showed

2006  YLR  1833   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD RAZZAQ VS State

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 51-A—Bail, refusal of—Accused was apprehended with one kilogram of “Phakki” which was a narcotic substance—Bail could not be granted to accused in view of S.51-A of Control of

2006  YLR  1732   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD RAFIQ VS State

—Ss. 516-A & 439—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 32—Superdari of car—Criminal revision had been filed against order passed by Additional Sessions Judge, through which application of petitioner for superdari of car was r

2006  YLR  1583   LAHORE-HIGH-COURT-LAHORE

SHAHZAD alias BAGGO VS State

—S. 9(c) —Appreciation of evidence—Both recovery witnesses, though were public servants, but nothing was on record to show that they had any feeling or ill-will or motive to falsely implicate accused—In cross-examination no suggestion was given to

2006  YLR  1554   LAHORE-HIGH-COURT-LAHORE

ARSHAD MEHMOOD VS State

—S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51(2)—Bail, grant of—Further inquiry–D.S.P. (Investigation) had given a clean chit to accused as well as to co-accused and had propounded a new story which had brought case of

2006  YLR  1554   LAHORE-HIGH-COURT-LAHORE

ARSHAD MEHMOOD VS State

–Ss.9(c)—Conflicting opinions expressed by two Investigating Officers could not be left unsettled before submission of final’ report—One of the two opinions was wrong—Huge quantity of narcotic substances having been recovered by the police, case re

2006  YLR  1435   LAHORE-HIGH-COURT-LAHORE

IRFAN ALI VS State

—S. 9(c)—Appreciation of evidence—Sentence, reduction of—Accused had not assailed order of their conviction, but had challenged quantum of sentence being harsh and excessive—Official witnesses had not been impeached and there was no doubt about

2006  YLR  1234   LAHORE-HIGH-COURT-LAHORE

UMAR HAYAT VS State

–S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9—Bail, grant of—Ziminis and statements of witnesses under S.161, Cr.P.C. which were shown to have been recorded by Investigating Officer concerned, in fact were not in his handwriti

2006  YLR  1217   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD YASEEN VS State

–Ss. 6, 9 & 15—Criminal Procedure Code (V of 1898), S.265-K—Application under S.265-K, Cr.P.C. for acquittal—Trial Court had misread the F.I.R. as it was nowhere given in F.I.R. that Charas in question was purchased from the accused—Accused Wrigh

2006  YLR  1191   LAHORE-HIGH-COURT-LAHORE

ALOZIE MARTINS VS State

–S. 9(b)—Sentence, reduction in—Case against accused was established as prosecution witnesses had successfully stood the test of cross-examination—Counsel for accused did not assail order of conviction of accused, but laid emphasis on the reduction

2006  YLR  1141   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AKRAM VS State

—S. 9(b)—Appreciation of evidence—Trial Court, found allegations and charges against accused confidence-inspiring and consistent which deserved to be believed—Trial Court believed ocular account, recovery evidence and held that prosecution had suc

2006  YLR  1056   LAHORE-HIGH-COURT-LAHORE

ZULFIQAR ALI alias BILLA VS State

—S. 9(c)—Criminal Procedure Code (V of 1898), S.156(2)—Appreciation of evidence—Both prosecution witnesses gave details of incident—Total effect of the evidence of both the witnesses, was .that each packet of Charas was weighed at the time of re

2006  YLR  930   LAHORE-HIGH-COURT-LAHORE

ABDUL REHMAN VS State

—S. 9(c)—Appreciation of evidence—Prosecution having proved its case against the accused beyond any shadow of doubt by producing cogent evidence, defence counsel did not challenge his conviction and simply prayed for reduction in his sentence, which

2006  YLR  800   LAHORE-HIGH-COURT-LAHORE

KHALID HUSSAIN VS State

—Ss.9(c) & 21—Appreciation of evidence—Sentence, reduction in—Non­conformity with the procedure as laid under S.21of the Control of Narcotic substances Act, 1997, in the facts and circumstances of the case, would amount to an irregularity which w

2006  YLR  579   LAHORE-HIGH-COURT-LAHORE

TAFSEEL HUSSAIN alias MANTO VS State

–Ss. 9 & 51(2)—Criminal Procedure Code (V of 1898), S. 497—Bail, grant of—Quantity of narcotic substance recovered from accused not alarmingly big—Non ­receipt of report of Chemical Examiner regarding recovered substance being narcotic substance

2006  PCRLJ  1962   LAHORE-HIGH-COURT-LAHORE

KHURRAM ZEESHAN VS ASSISTANT DIRECTOR, POLICE STATION ANTI-NARCOTICS FORCE, FAISALABAD

—Ss. 9(c) & 15—Drugs Act (XXXI of 1976), S.7—Drugs (Licensing, Registering and Advertising) Rules, 1976, Rule 8—Punjab Drugs Rules, 1988, Rr.2(e), 15(iii), 17(2)(3), 21(i)(B&C) & Sched. B—Constitution of Pakistan (1973), Art.199—Constitutional

2006  PCRLJ  1898   LAHORE-HIGH-COURT-LAHORE

KHAYBER ALI VS State

—S. 9(c)—Criminal Procedure Code (V of 1898), S.561-A—Accused, who was convicted, was sentenced to imprisonment for life and fine of Rs.10,00,000, but in the judgment, there was no mention of period of imprisonment which accused was to suffer in cas

2006  PCRLJ  1745   LAHORE-HIGH-COURT-LAHORE

Rana WARIS ALI VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51—Bail, refusal of—Only reason put forward by counsel for accused for grant of bail to accused was that accused had been falsely implicated in the case on account of political ri

2006  PCRLJ  1595   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ASLAM VS State

—S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.2(d)(ii) & 9(c)—Bail,- grant of—Further inquiry—Alleged material recovered from accused was sent to Chemical Examiner and according to the report, entire recovered material was “Bha

2006  PCRLJ  1535   LAHORE-HIGH-COURT-LAHORE

SAJJAD alias SHADA VS State

—S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Further inquiry—Investigating Officer who appeared in the Court had stated that real accused lady who was arrested in some other case, had confessed that she had

2006  PCRLJ  1455   LAHORE-HIGH-COURT-LAHORE

GHULAM ABBAS VS State

—S. 9(b)—Appreciation of evidence—Alleged recovery of narcotic substance from possession of accused had also been witnessed by a police officer who had been given up by prosecution as unnecessary—Stand taken by said Police Officer during investiga

2006  PCRLJ  1431   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ASHRAF VS State

—Ss. 9(B)(c) & 18—Appreciation of evidence—Sentence, reduction in—Two F.I.Rs. were registered against accused in same Police Station; in first F.I.R. it was alleged that accused was found in possession of 100 grams of Charas and 225 grams of opium

2006  PCRLJ  1237   LAHORE-HIGH-COURT-LAHORE

DILDAR HUSSAIN VS State

–S. 9(c)-Appreciation of evidence—Both prosecution witnesses who allegedly had witnessed recovery had not indicated the time when raid was conducted and recovery was effected—Evidence of prosecution was not trustworthy—Time of occurrence was not di

2006  PCRLJ  974   LAHORE-HIGH-COURT-LAHORE

ABDUL REHMAN VS State

—S. 9(c)—Appreciation of evidence—Recovery witnesses, all public servants, had no background of any ill-will or bitterness against the accused so as to falsely implicate him in the case, and they had made consistent statements which inspired confide

2006  PCRLJ  966   LAHORE-HIGH-COURT-LAHORE

TARIQ JAVED and another VS State

—S. 9(c)—Appreciation of evidence—Prosecution witnesses had no enmity with the accused to falsely involve them in the case—Such witness had remained consistent regarding the time, place and manner of the recovery effected from the accused—Police

2006  PCRLJ  867   LAHORE-HIGH-COURT-LAHORE

KHADIM HUSSAIN VS State

–S. 9(c)—Appreciation of evidence—Report of Chemical Examiner did not support prosecution case and while trial was in progress an application was made to the Area Magistrate for preparing fresh parcel, without issuing any notice to accused and withou

2006  PCRLJ  515   LAHORE-HIGH-COURT-LAHORE

SANAULLAH VS State

—S. 9(b)—Appreciation of evidence—Sentence, reduction in—F.I.R. and evidence of prosecution witnesses had revealed that accused had made a plan to falsely involve another person in case of narcotic and for this purpose concealed 600 grams of Chara

2006  PCRLJ  410   LAHORE-HIGH-COURT-LAHORE

MIR ZAMAN VS State

—S. 9(c)—Appreciation of evidence—Reduction in sentence—Complainant though should not himself be an Investigating Officer of the case, but until and unless a serious prejudice had been caused to accused by double role of Investigating Officer, his

2006  PCRLJ  251   LAHORE-HIGH-COURT-LAHORE

Mst. LATIFAN BIBI VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—No evidence had been collected to ascertain as to what was the quantity of narcotics allegedly recovered from the possession of accused—Accused, who was a female had

2006  MLD  1863   LAHORE-HIGH-COURT-LAHORE

TAJ MUHAMMAD alias TAJI VS State

–S. 9(c)—Appreciation of evidence—Sentence, reduction in—Counsel for accused was only asking for reduction in sentence, which would mean that he was not impeaching the credibility of witnesses, though they all were officials—Conviction of accused

2006  MLD  1815   LAHORE-HIGH-COURT-LAHORE

ABDUL MAJEED VS State

–S. 9(c)—Appreciation of evidence—Trial Court, despite having observed that serious irregularities had been committed during investigation of the case; and that accused was not given an opportunity by Investigating Officer to produce evidence in defe

2006  MLD  1598   LAHORE-HIGH-COURT-LAHORE

PERVEZ AHMAD VS State

—Ss. 9(c) & 9(b)—Appreciation of evidence—Recovery witness had deposed that only 200 grams “charas” was recovered from the accused—Other recovery witness had been given up by the prosecution without any reason which had cast doubt on the prosecuti

2006  MLD  1596   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SHAFI KHAN VS State

–Ss. 9(c) & 6—Sentence, reduction in—Convictions of accused having not been contested the same were upheld—Sentences of each accused were, however, reduced in view of the principle laid down in 2004, PCr.LJ 1424—Sentences of death and imprisonmen

2006  MLD  1555   LAHORE-HIGH-COURT-LAHORE

NASIR MEHMOOD VS State

—-S. 9(c)—Appreciation of evidence—Case property consisted of two pieces and it was not clear as to from which of the two pieces the sample of narcotics was taken for submission to the Chemical Examiner—Admittedly only one sample was taken and the

2006  MLD  1546   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SARFRAZ alias SAFFA VS State

–Ss. 9(c) & 15—Criminal Procedure Code (V of 1898), S.516-A—Appreciation of evidence—Framing of charge—Object—Error in charge sheet as to place of recovery—Effect—Accused were arrested and tried for carrying Charas weighing 80 Kgs. in a veh

2006  MLD  1519   LAHORE-HIGH-COURT-LAHORE

ELOCHUKWU TONY VS State

—S. 9(c)—Appreciation of evidence—Sentence, reduction in— Order of conviction of accused, had not been assailed before High Court nor there was any cogent objection raised against Investigating Agency—Counsel for accused had candidly stated that

2006  MLD  1048   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD IQBAL VS State

–S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9—Bail, grant of–Further inquiry—Investigation in case had not been completed because Investigating Officer who had gone on training, had taken away case file with him—Investig

2006  MLD  738   LAHORE-HIGH-COURT-LAHORE

ZULFIQAR ALI VS State

—Ss.9(c), 14 & 15—Criminal Procedure Code (V of 1898), S. 439–Petitioner who had claimed ownership of confiscated motorcar allegedly used in occurrence, his case was that respondent rented out said vehicle which was used by accused in the case—Peti

2006  MLD  738   LAHORE-HIGH-COURT-LAHORE

ZULFIQAR ALI VS State

–Ss. 9(c), 14, 15 & 25—Appreciation of evidence—All seven prosecution witnesses had supported recovery of 67 kilograms of Charas and 2 kilograms of opium from vehicle driven by accused—Incriminating statements of prosecution witnesses on oath were

2006  MLD  704   LAHORE-HIGH-COURT-LAHORE

Mian MUHAMMAD IDREES VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51—Bail, refusal of—Accused had sought bail on ground of ailment, contending that he being a cardiac patient, his life was in danger and he could not be given proper treatment in

2006  MLD  610   LAHORE-HIGH-COURT-LAHORE

BASHIR AHMAD alias BASHIRI VS State

—S. 9(c)—Criminal Procedure Code (V of 1898), Ss.173 & 265-K—Appreciation of evidence—In subsequent report submitted under 5.173, Cr.P.C., it had been positively alleged that narcotic substance had been planted by police officer upon accused and c

2006  MLD  459   LAHORE-HIGH-COURT-LAHORE

FAIZ AHMAD VS State

—S. 9(c)—Appreciation of evidence—Sentence, reduction in—Mitigating circumstances—Entire prosecution case though Tested on testimony of police employees and there were some discrepancies in their statements, but all such discrepancies were minor

2006  MLD  415   LAHORE-HIGH-COURT-LAHORE

NASEER AHMAD VS State

–S. 9(c)—Appreciation of evidence—Reduction in sentence—Accused, at the very outset, opted not to challenge his conviction, but simply prayed for reduction in sentence on the ground that nothing was on record to show previous conviction of accused

2006  PLD  780   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD IDREES VS State

—Ss. 6, 9 & 25—Criminal Procedure Code (V of 1898), Ss.103 & 156(1)(2)—Appreciation of evidence—Investigation was conducted by C.I.A. officials—Non-compliance of S.156(1)(2), Cr.P.C.—Effect—On secret information, C.I.A. official/complainant

2006  PLD  552   KARACHI-HIGH-COURT-SINDH

SABIR MASEEH VS State

—S. 9(c)—Appreciation of evidence—Accused was a physically disabled person as his right leg was cut—Looking to the condition of accused and taking into consideration the fact that he was a beggar and not a person who was involved in corrupting the

2006  PLD  325   KARACHI-HIGH-COURT-SINDH

Mst. SHABANA RIYASAT VS State

–Ss. 9(c) & 25—Appreciation of evidence—Recovery had been effected from one of the rooms of the house of co-accused in his absence—Said recovery was effected in presence of two Mashirs, but prosecution had not examined one of the said Mashirs—Pol

2006  PLD  244   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ASGHAR MOGHAL VS State

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail on medical grounds—Principles—For releasing an accused on bail on medical ground strong reasons must exist to believe that despite advanced medical technology and availabilit

2006  PLD  244   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ASGHAR MOGHAL VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail on medical grounds—Criterion—Bail may be granted to an accused on medical ground if his sickness or ailment cannot be properly treated within the jail premises and he needs so

2006  PLD  244   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ASGHAR MOGHAL VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail on medical grounds, refusal of—Ailment mainly pressed for grant of bail was diabetes from which the accused was suffering for the last twelve or thirteen years—Medical reports

2006  PLD  244   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ASGHAR MOGHAL VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail when trial is at advanced stage—When trial of accused is at advanced stage, then superior Courts shall abstain from exercising their discretion pertaining to grant of bail to hi

2006  YLR  1394   KARACHI-HIGH-COURT-SINDH

GHULAM RASOOL VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—According to Chemical Examiner’s report total weight of parcel of Chars was 385 grams and net weight was 375 grams—Total weight of recovered Chars, in circumstances

2006  YLR  1381   KARACHI-HIGH-COURT-SINDH

JAHAD WALI VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail, grant of—Accused was minor and State Counsel had also conceded to grant of bail—Accused was admitted to bail, in circumstances.

2006  YLR  1042   KARACHI-HIGH-COURT-SINDH

SHABIR AHMAD VS State

—Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Property secured from possession of accused beyond doubt was Charas—Witnesses did not specifically state that 10 grams of Charas were drawn from one packet only b

2006  PCRLJ  2005   LAHORE-HIGH-COURT-LAHORE

DHANI BUX alias IJAZ VS State

—S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of—Complaint was presented before Civil Judge, seven days before Sessions Judge passed orders for holding preliminary enquiry—Both said actions were taken before regist

2006  PCRLJ  1251   KARACHI-HIGH-COURT-SINDH

QADIR BAKHSH VS State

—Ss. 497 & 188—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9, 12, 13, 14, 15, 19 & 37—Qanun-e-Shahadat (10 of 1984), Art.38—Bail, grant of—Captain of foreign ship called personnel of Anti-Narcotic Force, at his ship and handed

2006  PCRLJ  1239   KARACHI-HIGH-COURT-SINDH

MUHAMMAD HAYAT VS State

—Ss. 439 & 494—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Revision application—Withdrawal of case—Application for—Transfer of case—Application filed by District Attorney under S.494, Cr.P.C., for withdrawal of case against accu

2006  PCRLJ  993   KARACHI-HIGH-COURT-SINDH

MUNEER AHMED VS State

—S. 426—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Suspension of sentence—Application for—Sentence was short (three years) and accused had already remained behind the bars for over two months while appeal was not likely to be heard

2006  PCRLJ  921   KARACHI-HIGH-COURT-SINDH

REFERENCES BY JUDGE SPECIAL COURT-II (C.N.S.): In the matter of VS REFERENCES BY JUDGE SPECIAL COURT-II (C.N.S.): In the matter of

—S. 9—Anti-Terrorism Act (XXVII of 1997), Ss.12, 13 & 21(g)—Juvenile Justice System Ordinance (XXII of 2000), Ss.4 & 5—Jurisdiction of Anti-Terrorism Court to try juvenile offender—On reading S.21(g) of Anti-Terrorism Act, 1997 and S.12 thereof,

2006  PCRLJ  625   KARACHI-HIGH-COURT-SINDH

LUQMAN RAJ1 ADEWANMI VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, refusal of—Bail was sought on the ground that Trial Court had not complied with the direction of Supreme Court to examine the complainant within a period of two months—Circumsta

2006  PCRLJ  278   KARACHI-HIGH-COURT-SINDH

ABDUL LATEEF VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail, grant of—Police did not show as to how, much quantity of Charas was secured from the personal search of accused—Total weight of Charas which was secured from possession of ac

2006  PCRLJ  58   KARACHI-HIGH-COURT-SINDH

HUSSAIN ABID JAFFARY VS State

—S. 9(c)—“Possession”, meaning and scope—Word “Possession” implied a physical capacity to deal with the thing as one liked to the exclusion of every one else and a determination to exercise that physical power on one’s own behalf—“Possession” impl

2006  PCRLJ  58   KARACHI-HIGH-COURT-SINDH

HUSSAIN ABID JAFFARY VS State

—S. 9(c)—Appreciation of evidence—Officials of Anti-Narcotics Force entered into an official premises which was in joint possession of many officers/ officials of the Excise and Taxation Department—Evidence showed that most of properties found lyi

2006  MLD  1961   KARACHI-HIGH-COURT-SINDH

IMTIAZ ALI VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of—Contents of F.I.R. and mashirnaina of recovery and arrest, clearly mentioned that 20 K.Gs. of Charas were allegedly recovered from the possession of accused in the shape

2006  MLD  183   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ASHRAF SHAHEEN VS State

—S. 9(c)—Appreciation of evidence- -Possession—Connotation—Allegation against accused was that three packets of heroin powder and one packet of heroin were recovered from Almirah and a wooden box in a room in possession of accused—Alleged Almira

2006  PLD  698   KARACHI-HIGH-COURT-SINDH

KHAN BACHA VS State

—S. 9(b)—Qanun-e-Shahadat (10 of 1984), Art.49—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Benefit of doubt—Facts mentioned in `Mashirnama’ were beyond scope of S.103, Cr.P.C.—Non-sealing of sample immediately after r

2005  SCMR  859   SUPREME-COURT

SHAHZAD AMJAD VS State

–S. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Accused had admitted his guilt in his statements recorded under Ss.342 and 340(2), Cr.P.C.—Plea that the accused had no knowledge about the narcotics concealed inside the layer of the bag had no

2005  SCMR  1897   SUPREME-COURT

THE STATE through Advocate-General VS Mian MUHAMMAD ARSHAD

—S. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Leave to appeal was granted to the State by Supreme Court to reappraise the evidence on record in order to ascertain as to whether acquittal of accused had been recorded by the High Court in viola

2005  SCMR  1689   SUPREME-COURT

MUHAMMAD SADIQ VS THE STATE

–Art. 185(3)—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Accused/petitioner while in possession of heroin weighing 200 grams, was apprehended red-handed by raiding police party and was convicted and sentenced by the Court—Petitioner ha

2005  SCMR  1487   SUPREME-COURT

IKRAM HUSSAIN VS State

—Ss. 9(c) & 29(d)—Constitution of Pakistan (1973), Art.185 (3)—Re­appraisal of evidence—Presumption—Failure to discharge the burden of proof of recovery against accused—Recovery of one kilogram and forty grams of Charas–Accused was employee

2005  YLR  2805   QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL QUDDUS VS State

—S. 9(c)—Appreciation of evidence—No evidence was available on record to show whether the samples were drawn from the alleged recovered material or when the same were sealed and who sealed them—Record also did not show as to when the samples were

2005  PCrLJ  1864   QUETTA-HIGH-COURT-BALOCHISTAN

SYED MUHAMMAD VS State

—S. 9(c)—Criminal Procedure Code (V of 1898), S.465—Appreciation of evidence—Trial Court had rightly tried the accused without adhering to the provisions of 5.465, Cr.P.C. because no plea regarding insanity of accused was taken at the time of comm

2005  PLD  197   PESHAWAR-HIGH-COURT

NOORAB KHAN VS State

– S. 9(c)—Appreciation of evidence—Investigating Officer as prosecution witness had stated that accused was holding a black bag containing Charas in his hand while other prosecution witness had contradicted him by saying that accused had tied Charas o

2005  YLR  3326   PESHAWAR-HIGH-COURT

RASHID KHAN VS State

—Ss. 9(c), 20 & 21—West Pakistan Arms Ordinance (XX of 1965), S.13—Appreciation of evidence—Investigating officer on receipt of information conducted raid on the house of accused and recovered contraband Charas along with arms and ammunitions from

2005  YLR  3269   PESHAWAR-HIGH-COURT

Mst. NOREENA VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9—Bail, grant of—Accused being female was searched through a lady constable, but name of said lad) constable had not been mentioned in Murasila as well as in F.I.R. and that lady constab

2005  YLR  2448   PESHAWAR-HIGH-COURT

Mst. SHAKEELA VS State

—S. 9—Appreciation of evidence–Contraband had been sent to Forensic Science Laboratory thirteen days after recovery of’ same and no plausible explanation was on record for such delay—Material contradictions were found in statements of two marginal

2005  YLR  2346   PESHAWAR-HIGH-COURT

AMBAR SHAH VS State

—S. 9—Appreciation of evidence—All witnesses consistently deposed that accused was apprehended on the spot pursuant to a raid and that Charas weighing 2016 grams was recovered from a shopping bag held by him in his right hand—Samples taken from th

2005  YLR  605   PESHAWAR-HIGH-COURT

GHULAM SADDIQUE VS State

—S. 9—West Pakistan Arms Ordinance (IX of 1965), S.13—Appreciation of evidence—Accused at the time of occurrence was driving vehicle from which Charas and arms and ammunition was recovered—Nothing was recovered from the personal possession of ac

2005  YLR  529   PESHAWAR-HIGH-COURT

JALAT KHAN VS State

–Arts. 3/4—Control of Narcotic Substances Act (XXV of 1997), Ss. 9 & 25–­Criminal Procedure Code (V of 1898), 5.103—Appreciation of evidence–­Prosecution, in order to prove factum of apprehension of accused and recovery of Charas from possession

2005  YLR  287   PESHAWAR-HIGH-COURT

SHEREEN ZADA VS THE STATE

—-Ss.497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss. 9, 25, 74 & 76—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4—Bail, refusal of—Accused had contended that no person from the locality having been associated with

2005  PLD  180   PESHAWAR-HIGH-COURT

GHULAM KHAN VS State

—-S. 9—Appreciation of evidence—Sentence, reduction in—Narcotic substance was recovered from immediate possession of. accused and respectable persons of area had pointed out to the Police about selling of narcotic by accused—Prosecution witness

2005  PLD  166   PESHAWAR-HIGH-COURT

SARDAR KHAN VS State

—-S. 9(c)—Appreciation of evidence—Police witnesses—Police officials are competent witnesses of recovery memo. and their statements cannot be discarded merely because they belong to police department.

2005  PLD  166   PESHAWAR-HIGH-COURT

SARDAR KHAN VS State

—S. 9(c)—Entire recovered bulk not to be sent to Chemical Examiner—Law does not require that the entire bulk recovered from the accused should be sent to Chemical Examiner for opinion and report–­Meagre quantity separated out of the lot sent for a

2005  PLD  166   PESHAWAR-HIGH-COURT

SARDAR KHAN VS State

—S. 9(c)—Appreciation of evidence—Prosecution evidence was consistent on all material particulars, worthy of credence and inspired confidence—Recovery witnesses were not shown to be motivated by any ill-will or enmity towards the accused—No disc

2005  PLD  166   PESHAWAR-HIGH-COURT

SARDAR KHAN VS State

—S. 9(c)—Multiple capacity of police officer—No legal prohibition exists for a police officer to be a complainant if he is a witness to the commission of an offence and also to be an Investigating Officer so long as it does not in any way prejudice

2005  PLD  162   PESHAWAR-HIGH-COURT

GUL DIN VS State

—-S. 9(b)—Appreciation of evidence—Serious discrepancies and infirmities in the testimony of all the three prosecution witnesses had destroyed the evidentiary worth of the prosecution evidence making the recovery of the narcotics from the accused hi

2005  PCrLJ  2034   PESHAWAR-HIGH-COURT

QAYUM VS State

—S. 9(b)—Appreciation of evidence—Delay of six days occurred in sending samples to Laboratory, delay of 22 days had occurred in checking samples and preparation of report and delay of 15 days had occurred in receiving back the report of Forensic Sci

2005  PCrLJ  2030   PESHAWAR-HIGH-COURT

QASEEM VS State

—-S. 9—Appreciation of evidence—Significant contradictions appeared in prosecution evidence—Investigating Officer had stated that raid on the hotel was conducted at 1.00/1.30 p.m. whereas marginal witness had categorically stated that incident had

2005  PCrLJ  1972   PESHAWAR-HIGH-COURT

Mst. BAKHTA VS State

—-Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S.103–Appreciation of evidence—Positive report of Chemical Examiner and’ both prosecution witnesses had supported recovery of five Kilo grams Charas from possession of accused—Evidence of said

2005  PCrLJ  1966   PESHAWAR-HIGH-COURT

Mst. NAWSHADA VS State

–Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), Ss.103 & 340(2)—Appreciation of evidence—Sentence, reduction in—Prosecution witnesses had fully supported prosecution story—Said witnesses had remained absolutely consistent, coherent and had

2005  PCrLJ  1958   PESHAWAR-HIGH-COURT

AKHTAR HUSSAIN VS State

—-S. 9(c)—Sentence, reduction in—Sentence awarded-to accused was on higher side as it did not commensurate with quantity of heroin recovered—Conviction of accused was maintained, but his sentence was reduced from 5 years’ R.I. to 3 years’ R.I. and

2005  PCrLJ  1958   PESHAWAR-HIGH-COURT

AKHTAR HUSSAIN VS State

—S. 9(c)—Appreciation of evidence—Onus to prove—When an accused at criminal trial would take a specific plea, the onus invariably would shift and accused would be required to produce evidence and prove his plea or at least his plea should be suppo

2005  PCrLJ  1958   PESHAWAR-HIGH-COURT

AKHTAR HUSSAIN VS State

—Ss. 9(c) & 25—Appreciation of evidence—Report of Chemical Examiner was positive—Prosecution witnesses had unanimously deposed that heroin in alleged quantity had been recovered from car in question at given time—Complete harmony was in depositi

2005  PCrLJ  1949   PESHAWAR-HIGH-COURT

SARTAJ ALI VS State

—Ss. 9 & 25—Appreciation of evidence—Sentence, reduction in—Both prosecution witnesses had unanimously deposed that Charas in alleged quantity had been recovered from accused on pointed date and time—Complete unanimity was found in depositions o

2005  PCrLJ  1858   PESHAWAR-HIGH-COURT

AFSAR KHAN VS State

—S. 9(c)—Appreciation of evidence—Chemical examination of recovered material—Since it was not stated anywhere either in Control of Narcotic Substances Act, 1997 or in Rules made thereunder as to how much quantity from seized narcotics should be se

2005  PCrLJ  1858   PESHAWAR-HIGH-COURT

AFSAR KHAN VS State

—S. 9(c)—Appreciation of evidence—Police witnesses—Police witnesses were competent witnesses in the eyes of law and unless it could be demonstrated that police officials bad any motive or reason to falsely implicate accused, their statements could

2005  PCrLJ  1858   PESHAWAR-HIGH-COURT

AFSAR KHAN VS State

—S. 9(c)—Reduction in sentence—Accused was a previous non-convict and he was a young man and entire future lay before him—Conviction of accused was maintained, but his sentence was reduced from three years’ R.I. to one year’s R.I. and fine was als

2005  PCrLJ  1858   PESHAWAR-HIGH-COURT

AFSAR KHAN VS State

–Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Recovery proceedings—Section 25 of Control of Narcotic Substances Act, 1997, had excluded application of S.103, Cr.P.C.

2005  PCrLJ  1858   PESHAWAR-HIGH-COURT

AFSAR KHAN VS State

–S. 9(c)—Appreciation of evidence—Both the important witnesses who were police officials, had made consistent statement on material points and accused had failed to point out any discrepancy in their statements—Both said witnesses had supported rec

2005  PCrLJ  1562   PESHAWAR-HIGH-COURT

Mst. PARVEEN VS State

—Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S. 103—Appreciation of evidence—Accused was alleged to have in her possession 7 packets of Charas weighing 7 kilograms–Meagre quantity was separated out of the lot and was sent to Forensic Scien

2005  PCRLJ  1506   PESHAWAR-HIGH-COURT

JANGREZ KHAN VS State

–S. 9—Appreciation of evidence—Charas recovered from accused was in shape of 7 slabs, but only one sample of 10 grams was separated from the whole lot—In view of one sample separated from narcotics recovered and not taking samples from each slab, p

2005  PCRLJ  1421   PESHAWAR-HIGH-COURT

GUL REHMAN VS State

—-S. 9(c)—Appreciation of evidence—Sentence, reduction in—Accused while travelling in vehicle was found in possession of a “Gathri” lying in between his feet—Search of said “Gathri” led to recovery of “Pukhta Charas” which was weighed and found

2005  PCRLJ  1278   PESHAWAR-HIGH-COURT

FIDA MUHAMMAD VS State

—S. 9—Penal Code (XLV of 1860), Ss.419/171/472—Appreciation of evidence—Non-production of case property at the time of trial in the absence of any order or certificate regarding its destruction, had created a serious doubt about existence of the s

2005  PCRLJ  1245   PESHAWAR-HIGH-COURT

IFTIKHAR alias JARMAN VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)—Bail, grant of—Accused had been shown as a boy, but his exact age had not been mentioned—Application of t

2005  PCRLJ  1198   PESHAWAR-HIGH-COURT

GUL KHAN VS State

—S. 9(c)—Appreciation of evidence—Stopping of the Bus from which the narcotics were recovered at the scene of occurrence as well as in the presence of passengers therein, was not proved—Said Bus though allegedly used for commission of the offence

2005  PCRLJ  1173   PESHAWAR-HIGH-COURT

ARIF ULLAH VS State

—S. 9(c)—Appreciation of evidence—Recovery of Charas from the accused had been proved by reliable and convincing prosecution evidence—However, no separate sample was taken from each of the 15 slabs recovered from the accused and thus, it could not

2005  PCRLJ  305   PESHAWAR-HIGH-COURT

MUHAMMAD RIAZ VS State

-S. 497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art. 3—Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 21–­Bail, grant of—Accused was in jail ever since his arrest—Investigation of case was almost complete and accused was n

2005  PCRLJ  120   PESHAWAR-HIGH-COURT

Mst. KHURSHIDAH alias RASHEEDA BEGUM VS THE STATE

—-S. 9(c)—Appreciation of evidence—Sentence, reduction in–Prosecution witnesses were consistent on all material particulars and no contradiction whatsoever could be pointed out by accused to cause dent in prosecution case—However, keeping in view

2005  PCRLJ  76   PESHAWAR-HIGH-COURT

RAEES KHAN VS THE STATE

—-Ss. 9(b), 20 & 21—Appreciation of evidence—Inspector, who had conducted raid, had admitted that no one from adjoining houses was associated in investigation, search and seizure and for such omission no reason had been shown in the case diaries—I

2005  MLD  1991   PESHAWAR-HIGH-COURT

Syed WALI VS State

—Ss. 9(c) & 25—Appreciation of evidence—Prosecution witnesses had fully supported prosecution story and had remained absolutely consistent, coherent and had resolutely withstood lengthy cross-examination—Evidence of said witnesses had established

2005  MLD  1949   PESHAWAR-HIGH-COURT

KHAN SAHIB alias DOCTOR VS State

—S. 9(c)—Appreciation of evidence—Both the prosecution witnesses were fully consistent on all important material particulars and had not waived at all—Said witnesses were subjected to lengthy and searching cross-examination, but they stood to the

2005  MLD  1949   PESHAWAR-HIGH-COURT

KHAN SAHIB alias DOCTOR VS State

—Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Evidence of police—Recovery proceedings—Contention of accused concerning violation of S.103, Cr.P.C. seemed to be fallacious when examined in the light of provi

2005  MLD  1935   PESHAWAR-HIGH-COURT

MUHAMMAD SAUD VS State

—-Ss. 9(c) & 25—Appreciation of evidence—Huge quantity of Charas weighing seven kilo grams had been recovered from secret cavity of “teapais” in question, owned by accused—Trial Court had discussed every aspect of the case with minute particulars

2005  MLD  963   PESHAWAR-HIGH-COURT

Mst. GULSHAN BIBI VS State

–Ss. 497 & 52-Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 34—S.R.O. 596(I)/97, dated 7-7-1997-Bail refusal of-­Accused was found in conscious possession of 15 K.Gs. Charas and recovery had been supported by witnesses of recovery memo.

2005  PLD  81   PESHAWAR-HIGH-COURT

MUHAMMAD UZAIR SIDDIQUI VS State

—S. 9(a)(b)(c)—Appreciation of evidence—Severity of punishment–­All three clauses i.e. (a)(b)(c) of S.9 of Control of Narcotic Substances Act, 1997 had provided different quantum of sentences of imprisonment including death sentence depending enti

2005  PLD  81   PESHAWAR-HIGH-COURT

MUHAMMAD UZAIR SIDDIQUI VS State

—S. 9—Penal Code (XLV of 1860), Ss.417/418/468—Appreciation of evidence—No entry was found in daily diary of police regarding secret information allegedly received by, the Police—Prosecution had failed to establish beyond reasonable doubt that 4

2005  PLD  81   PESHAWAR-HIGH-COURT

MUHAMMAD UZAIR SIDDIQUI VS State

–Ss. 9 & 33(4)—Criminal Procedure Code (V of 1898), S.516-A–­Appreciation of evidence—Destruction of remaining quantity of narcotics—Procedure—To establish that a particular quantity of narcotics was recovered from accused, prosecution was duty

2005  PLD  81   PESHAWAR-HIGH-COURT

MUHAMMAD UZAIR SIDDIQUI VS State

-S. 9—Appreciation of evidence—No one would be construed into a crime in absence of legal proof/evidence.

2005  PLD  1   PESHAWAR-HIGH-COURT

BASHIR AHMAD VS THE STATE

—-S. 9(c)—Appreciation of evidence—Prosecution case was that police who had gone to the house of accused in order to arrest a proclaimed offender who was alleged to be close friend of the accused and was hiding in his house—Said proclaimed offende

2005  PLD  638   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AFZAL VS State

—Ss.382-B & 561-A—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Benefit of S.382-B, Cr.P.C., grant of—Accused on the reduction of his sentence of death to imprisonment for life by the High Court was entitled to get the benefit of S.382

2005  PLD  440   LAHORE-HIGH-COURT-LAHORE

KHAIR-UL-REHMAN VS THE STATE and others

—-S. 2(s))(t)(w)(v), 4, 5, 6, 7, 8 & 9—Poast or Doda, being apart of a poppy plant, falls within the definition of “opium” and, therefore, the same has to be treated and accepted as “narcotic drug” for the purpose of S.2(s), Control of Narcotic Substa

2005  YLR  3124   LAHORE-HIGH-COURT-LAHORE

MAHMOOD AZAM VS State

–S. 9(b)—Appreciation of evidence—Members of the raiding party and the witnesses of recovery had supported each other and the prosecution case on all material aspects—Prosecution evidence was trustworthy and confidence-inspiring and the contradicti

2005  YLR  3037   LAHORE-HIGH-COURT-LAHORE

MAVAIZ KHAN VS State

—S. 9(c)—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Accused was caught red handed with huge quantity of narcotics—Recovery evidence was consistent and inspired confidence—Contradictions in the said evidence were minor

2005  YLR  2610   LAHORE-HIGH-COURT-LAHORE

SHAHBAZ AHMED VS State

—S.9(c)—Appreciation of evidence–Sizable quantity of contraband narcotics recovered from the accused could not be believed to have been planted on them by the local police—No bitterness or ill-will existed between the recovery witnesses and the acc

2005  YLR  2586   LAHORE-HIGH-COURT-LAHORE

SARFRAZ alias FARZO VS State

—S. 9(c)—Appreciation of evidence—Complaint had manifestly revealed that time of occurrence was added subsequently as shade of ink and handwriting regarding time were different from the shade of ink and handwriting of complaint—Contradiction exist

2005  YLR  2321   LAHORE-HIGH-COURT-LAHORE

SHERZADA KHAN VS State

—-Ss. 6 & 9—Sentence, reduction in—Mitigating circumstance—Accused claimed himself to be an ailing person of advanced age—Huge quantity of heroin was recovered from the active possession of the accused, who was not of an advanced age to create a

2005  YLR  1957   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ASLAM VS State

—Arts. 3 & 4—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Appreciation of evidence—Sentence, reduction in—No ill-will or motive on the part of witnesses could be pointed out by accused in the course of trial—Prosecution case again

2005  YLR  1769   LAHORE-HIGH-COURT-LAHORE

ASMAT ULLAH alias BILLA PATHAN VS State

—S. 426—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)–­Suspension of conviction and sentence–­Petitioner had already undergone sentence of imprisonment for a period of five years as was obvious from the report of Superintendent of

2005  YLR  1728   LAHORE-HIGH-COURT-LAHORE

Malik MUSHTAQ alias BLACK PRINCE VS State

—Ss. 337, 338, 265-C & 439—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 15 & 47—Granting pardon to approver —Challan was submitted in Trial Court and one of accused persons was declared approver under S.337, Cr.P.C. and was granted p

2005  YLR  1574   LAHORE-HIGH-COURT-LAHORE

Mst. MUNAWAR BIBI VS State

–S. 426—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Suspension of sentence—Accused was a lady who had been sentenced to 2-1/2 years’ R.I. and was in Jail for the last two months and ten  days—Sentence of accused was suspended in circ

2005  YLR  1421   LAHORE-HIGH-COURT-LAHORE

MAZHAR SHAH VS State

–Ss. 9(c), 14, 15, 25 & 48—Appreciation of evidence—All the seven prosecution witnesses had supported recovery of 67 Kilograms of Charas and 2 Kilograms of Opium from vehicle which was admittedly being driven by accused—Incriminating statements of

2005  YLR  1411   LAHORE-HIGH-COURT-LAHORE

State VS MALIK AMIR

—S. 497(5)—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 47, 50 & 71—Bail, cancellation of— Maintainability of petition—Accused had raised a preliminary objection regarding competence of petitioner to maintain petition for cancella

2005  YLR  1411   LAHORE-HIGH-COURT-LAHORE

State VS MALIK AMIR

—S. 497(5)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Qanun-e-Shahadat (10 of 1984), Art.40—Bail, cancellation of— Two co-accused, after their arrest and making inculpatory statements regarding accused, led to further recovery of c

2005  YLR  1409   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD DIDAR KHAN VS State

–S. 9(c)—Appreciation of evidence—Material contradictions appeared in the statements of two recovery witnesses and the recovery memo.—One of prosecution witnesses had stated that Charas was buried under the ground and was recovered from there—Oth

2005  YLR  1340   LAHORE-HIGH-COURT-LAHORE

Haji NOOR-UL-ISLAM VS State

–Ss. 221, 265-C & 265-D — Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 15—Framing of charge—Non-supply of requisite copies of documents—Petitioner/accused, in revision, had called in question charge-sheet framed by Trial Court on t

2005  YLR  1293   LAHORE-HIGH-COURT-LAHORE

Mst. NUSRAT alias PATHANI VS State

–S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 51—Bail, refusal of—One hundred and twenty five grams Heroin was recovered from accused at the spot by police party—Under provisions of S.51(2) of Control of Narcotic Substances A

2005  YLR  1062   LAHORE-HIGH-COURT-LAHORE

Sheikh MUHAMMAD AHMAD VS State

—-S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 15—Bail, refusal of—Accused had sought bail on sole ground of delay in trial, but order sheet had shown that alleged delay in the trial was caused from  accused side and not due t

2005  YLR  1024   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SAJID VS State

–S. 426—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art. 3/4—Control of Narcotic Substances Act (XXV of 1997), S. 9(b)—Suspension of sentence—Accused had served out one half of sentence and no likelihood was of early hearing of appeal an

2005  YLR  1002   LAHORE-HIGH-COURT-LAHORE

TAHIR BASHIR VS State

–S. 9(c)—Appreciation of evidence—Recovery witnesses, nodoubt, belonged to police department, but they were independent witnesses having no reason to falsely implicate the accused in the case—Recovery evidence was unanimous and did not suffer from

2005  YLR  742   LAHORE-HIGH-COURT-LAHORE

REHMAT ALI VS State

—S. 540—Control of Narcotic Substances Act (XXV of 1997), Ss. 36(2) & 6/9–­Summoning of Chemical Examiner—Trial Court had dismissed the application of the accused for summoning the Chemical Examiner as Court witness to elucidate his report, with t

2005  YLR  652   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SUGHEER VS THE STATE

–S.497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)—Bail, grant of—Further inquiry–­Accused had been declared innocent in police investigation and had been placed in Column No. 2 of challan report—Nothing was on record to t

2005  YLR  228   LAHORE-HIGH-COURT-LAHORE

ROOH-UL-AMEEN  VS THE STATE

—-Ss.9(c), 14 & 15—Appreciation of evidence—Statement of recovery witness with regard to recovery of huge quantity of heroin from vehicle driven by accused, was corroborated by complainant and other prosecution witnesses—Report of Chemical Examine

2005  YLR  16   LAHORE-HIGH-COURT-LAHORE

IJAZ-UD-DIN VS THE STATE

—-S. 9(a) (c)—Criminal Procedure Code (V of 1898), S.516-A—Appreciation of evidence—Destruction of remaining quantity of narcotics—Allegation against accused was that 20 K.G. Charas was recovered from his possession—Out of said recovered quant

2005  PCrLJ  1947   LAHORE-HIGH-COURT-LAHORE

AKHTAR ALI VS State

–S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 14, 15 & 51—Bail, grant of—Further inquiry—`Charas’ in question had been recovered from suit-case lying in the vehicle which was hired by co-accused—Prosecution had yet to pr

2005  PCrLJ  1823   LAHORE-HIGH-COURT-LAHORE

FAZAL ABBAS VS State

—S. 9(b)—Conviction recorded on confession—Validity—Accused had neither denied his confession in memo. of appeal nor before the Court—Accused had admitted his guilt on his own without any pressure, coercion, inducement or promise and he could no

2005  PCrLJ  1779   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD FAROOQ VS State

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail, grant of—On personal search of accused, 500 grams of Charas had allegedly been recovered from his possession—Case of accused did not fall within prohibitory clause of S.497,

2005  PCRLJ  1520   LAHORE-HIGH-COURT-LAHORE

NAZAR HUSSAIN VS State

—-S. 9(c)—Appreciation of evidence—Inspector/S.H.O. who was complainant of the case and had also drafted all the important investigational documents whereby the narcotic substance was allegedly recovered from each accused, was not examined by the pr

2005  PCRLJ  1472   LAHORE-HIGH-COURT-LAHORE

NABEELA BIBI VS State

—Ss. 497 & 561-A—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail application—Conversion into petition for quashing of F.I.R.—Complaint, recovery memo. and statement under S.161, Cr.P.C. were not drafted by Investigating Officer himsel

2005  PCRLJ  726   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SIDDIQUE alias BHERIA VS State

—S. 9(c)—Criminal Procedure Code (V of 1898), S. 510—Appreciation of evidence—In order to prove the guilt of accused under S.9(c) of Control of Narcotic Substances Act, 1997, prosecution was duty bound to have proved in evidence that substance rec

2005  PCRLJ  603   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD IJAZ VS State

–S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 15—Bail, grant of—House from where narcotics were allegedly recovered did not belong to accused, but belonged to co-accused—Nothing was recovered at the instance of accused—Pro

2005  PCRLJ  574   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD RIAZ VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9—Bail, grant of—Allegation against accused was that he was found in possession of 200 grams of indigenous charas — Maximum sentence in case would not fall under prohibitory clause a

2005  PCRLJ  568   LAHORE-HIGH-COURT-LAHORE

ALLAH DITTA VS State

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9, 21 & 25—Bail, grant of—Contention was that accused who was found in possession of two Kgs. of poppy-straws at the time of his arrest, was unaware of the fact whether poppy-straws wou

2005  PCRLJ  207   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD BILAL VS State

-S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9—Bail, grant of—Further inquiry—Case of prosecution was that a bag containing “Posst” weighing 50 Kgs. was recovered from accused who allegedly admitted to have carried said bag at

2005  MLD  1718   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AKRAM VS State

—S. 9(c)—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Assistant Sub-Inspector of Police was justified in searching the accused without search warrants and arresting him in given circumstances of the case—Section 103, Cr.P.

2005  MLD  1084   LAHORE-HIGH-COURT-LAHORE

ZULFIQAR ALI alias ZULFI VS State

—S.497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4 —Control of Narcotic Substances Act (XXV of 1997), S.9(b)–­Bail, grant of—First Information Report revealed that small quantity of 150 grams of Opium was recovered from the acc

2005  MLD  1056   LAHORE-HIGH-COURT-LAHORE

SHAH NAWAZ VS State

–S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9—Bail, grant of—Accused had no criminal history and was never involved in any criminal case of like nature—Accused also did not have the notoriety as drug pusher—Case against accuse

2005  MLD  966   LAHORE-HIGH-COURT-LAHORE

KHALIQ JAN VS State

-S.9(c)—Evidence—Police officials—Police witnesses are competent witnesses in the eye of law unless they are shown to have any motive or reason to falsely implicate the accused and their testimony cannot be discarded only because they happened to be

2005  MLD  966   LAHORE-HIGH-COURT-LAHORE

KHALIQ JAN VS State

–Ss.9(c) & 25—Criminal Procedure Code (V of 1898), S.103–­Appreciation of evidence—Police Officer was not prohibited under the law to be a complainant if he was a witness to the commission of the offence and also to be an Investigating Officer—Ap

2005  MLD  966   LAHORE-HIGH-COURT-LAHORE

KHALIQ JAN VS State

-S.9(c)—Evidence—Police witness—Dual capacity—Police Officer is not prohibited under the law to be a complainant if he is a witness to the commission of an offence and also to be an Investigating Officer.

2005  MLD  926   LAHORE-HIGH-COURT-LAHORE

NASRULLAH alias NASRULLI VS State

—S. 9(b)—Appreciation of evidence—Both prosecution witnesses had unanimously deposed that 503 grams heroin had been recovered from accused—No major or material discrepancy had been found in deposition of said two witnesses—Slight variation in st

2005  MLD  865   LAHORE-HIGH-COURT-LAHORE

Malik KHALID HUSSAIN VS State

—S. 497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4—Control of Narcotic  Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Co-accused was declared innocent by Investigating Officer while accused was arrested in case about 1

2005  MLD  630   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD NAWAZ VS MUHAMMAD WASEEM AFZAL

–S. 9(c)—Constitution of Pakistan (1973), Art. 199—Constitutional petition—Petitioner/accused during investigation in case was found to be innocent and alleged recovery of narcotics was found to have been planted upon him by Investigating Officer–

2005  MLD  586   LAHORE-HIGH-COURT-LAHORE

NAEEM ARSHAD VS SUPERINTENDENT OF NEW CENTRAL JAIL, MULTAN

–S.397—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Constitution of Pakistan (1973), Art.199—Constitutional petition—Trial of accused simultaneously in two cases and conviction on same day—Petition to treat sentence in both cases co

2005  MLD  145   LAHORE-HIGH-COURT-LAHORE

AHMAD VS THE STATE

—-S.9(c)—Appreciation of evidence—Alleged making of judicial confession by accused before prosecution witness, having not been put to accused during his examination under S.342, Cr.P.C. said piece of, evidence could not be considered against accused

2005  PLD  498   SUPREME-COURT

ABDUL KARIM BROHI VS State

—-S. 9(c)–Criminal Procedure Code (V of 1898), S.561-A—Government of Sindh Notification No.V(3)SOJ/98, dated 15-9-1999—Quashing of Order—De facto doctrine—Applicability—Additional Sessions Judge had exercised the jurisdiction bona fide under

2005  YLR  1862   KARACHI-HIGH-COURT-SINDH

RAYASAT ALI VS State

—-S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(b)–­Bail, grant of –Further inquiry–­Mashirnama of recovery and F.I.R., showed that 1100 grams of Charas were recovered from possession of accused, while according to Chemical Exam

2005  YLR  1257   KARACHI-HIGH-COURT-SINDH

ASHRAF ALI VS State

–S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant    of—Prosecution had based its case on the alleged version of the accused that he was cleaner of the Truck—“Charas” according to F.I.R. was secured from the possessi

2005  YLR  861   KARACHI-HIGH-COURT-SINDH

SHAMSUDDIN VS THE STATE

—S.9(b)—Criminal Procedure Code (V of 1898), S.342—Appreciation of evidence–­Examination of accused- –Report of Chemical Analyser in respect of Charas allegedly recovered from the accused, was in positive, but such report was not put to accused i

2005  YLR  236   KARACHI-HIGH-COURT-SINDH

AHMED  VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51—Bail–Accused was not released on bail for want of deposit of security amount in cash—High Court had directed the accused to be released on bail subject to furnishing securit

2005  PCrLJ  1998   KARACHI-HIGH-COURT-SINDH

ABU BAKAR VS State

—S. 9(b)—Criminal Procedure Code (V of 1898), S.537—Appreciation of evidence—Sentence, reduction in—Accused had not denied his arrest on the day of incident—Pleas taken by accused regarding his mala fide arrest by the police due to enmity and

2005  PCrLJ  1998   KARACHI-HIGH-COURT-SINDH

ABU BAKAR VS State

—Ss. 9(b), 21 & 22—Criminal Procedure Code (V of 1898), 5.537-Violation of Ss.21 & 22 of the C.N.S. Act does not vitiate the trial—Arrest of accused by an officer below the rank of A.S.-I. in violation of the provisions of Ss.21 & 22 of the Control

2005  PCRLJ  846   KARACHI-HIGH-COURT-SINDH

MAZHAR AHMED VS State

–S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51—Bail, refusal of—Accused was apprehended while going on a motorcycle and one and half kilograms of opium was recovered from his personal search in the presence of witnesses whic

2005  PCRLJ  643   KARACHI-HIGH-COURT-SINDH

MUMTAZ ALI VS State

—S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Further inquiry—Chemical Examiner in his report had stated that he had found that substance received by him for examination had ‘traces of Charas’ and Chemical Ex

2005  PCRLJ  248   KARACHI-HIGH-COURT-SINDH

LUQMAN RAJI ADEWUNMI VS State

-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)–­Bail, refusal of—Question raised about identity of accused through Passport and other documents, would required deeper appreciation of evidence which could not be done at bail stage a

2005  MLD  1261   KARACHI-HIGH-COURT-SINDH

Mst. JEEJAL VS State

—-S.9(c)—Appreciation of evidence—Report of the Chemical Analyzer had belied the statements of the complainant and the Mashir—Different property had been sent to the Chemical Analyzer for examination and report, which did not pertain to the presen

2005  MLD  950   KARACHI-HIGH-COURT-SINDH

ANWAR VS State

–S. 497(2)—Control  of  Narcotic  Substances Act (XXV of 1997), S.9—Bail, grant of—Further inquiry—Narcotic substance viz Charas was not recovered from actual possession of accused and according to contents of F.I.R. man had escaped from the scen

2005  MLD  943   KARACHI-HIGH-COURT-SINDH

ABDUL WAHEED VS State

—Ss. 86, 87, 76 & 561-A—Control of Narcotic Substances Act (XXV of 1997), Ss. 16, 15 & 9(c)—Application under S. 561-A, Cr.P.C.—Applicant had been arrested in a case registered at Lahore for an offence under Ss. 16, 15 & 9(c) of the Control of Nar

2005  MLD  869   KARACHI-HIGH-COURT-SINDH

SAS CARGO (PVT.) LTD. KARACHI through Manager Transport VS State

—Ss. 516-A & 439—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 74—Superdari of vehicle—Term “individual” used in S.74 of the Control of Narcotic Substances Act, 1997, would include the applicant being a private limited Company and it

2005  MLD  514   KARACHI-HIGH-COURT-SINDH

SAIFULLAH VS State

—Ss.497, 498 & 561-A—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail, grant of—Reduction of security amount–­Application for—Accused was granted bail subject to furnishing security in the sum of Rs.2,00,000 and PR bond in like am

2005  MLD  501   KARACHI-HIGH-COURT-SINDH

ZAREEF KHAN VS State

—-Ss. 9(c) & 15—Appreciation of evidence—Prosecution had stated that six packets of samples were sent to Chemical Analyzer, whereas report of Chemical Analyzer had shown that he had received only two packets—Property received by Chemical Analyzer,

2005  MLD  452   KARACHI-HIGH-COURT-SINDH

MOULADAD alias BABA VS State

—-S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)–­Bail, grant of—Specimen which was to be received by Chemical Examiner on same day or at the most on next day, was delivered to him after 40 days; as to where said specimen remained

2005  PLD  4   KARACHI-HIGH-COURT-SINDH

KARL JOHN JOSEPH VS THE STATE

—Ss. 9(c) & 25—West Pakistan Arms Ordinance (XX of 1965), S.13(e)—Appreciation of evidence—Conviction of accused—Both prosecution witnesses were cross-examined at length, but nothing could be brought on record to contradict evidence of both witn

2005  PLD  142   KARACHI-HIGH-COURT-SINDH

ANSAR-UL-ISLAM VS State

-S. 9(c)—Appreciation of evidence–Recovery of 1400 grams of Heroin powder—Benefit of doubt—Delayed sending of samples for chemical examination—Case property, examination of—Jurisdiction of appellate Court—Accused was convicted under S.9(c) of

2005  PLD  128   KARACHI-HIGH-COURT-SINDH

TAJ WALI VS State

–Ss. 9(c) & 21—Appreciation of evidence—Mashirs and all prosecution witnesses had made improvements in their statements recorded by the Court as against the F.I.R. and those recorded under 5.161, Cr.P.C. on material aspects of the case—Such improve

2005  PLD  125   KARACHI-HIGH-COURT-SINDH

State VS Syed QAISER SHAH

—Ss. 497(5), 156(2) & 173—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51—Anti-Narcotics Force Act (III of 1997), S.6(2)—S.R.O.600(I)/97—Bail, cancellation of—Bail was granted to accused on the ground that complainant/Investiga

2005  PCRLJ  45   FEDERAL-SHARIAT-COURT

DILWAR VS THE STATE

—-Arts. 3/4—Control of Narcotic Substances Act (XXV of 1997), S.9–Criminal Procedure Code (V of 1898), S.537—Appreciation of evidence—Accused at the commencement of trial was charge-sheeted for offences under Arts.3 & 4 of Prohibition (Enforcemen

2004  PLD  394   SUPREME-COURT

Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ VS KARL JOHN JOSEPH—Petitioner

—-S. 9(c)—Constitution of Pakistan (1973), Art.185(3)—Petition for leave to appeal—Explanation furnished by the prosecution being convincing and natural, non-joining of private persons as Mashirs of recovery was of no consequence—Case of accused

2004  PLD  856   SUPREME-COURT

MUHAMMAD HASHIM VS THE STATE

—-S.9(c)—Reappraisal of evidence—Record and recovery memo. showed that 4 grams of Charas was taken as sample out of total of 288 rods and nothing was available on record to show whether the sample for examination by the Chemical Examiner was taken o

2004  SCMR  1361   SUPREME-COURT

NASEER AHMAD VS THE STATE

—-S. 9(c)—Constitution of Pakistan (1973), Art. 185(3)—Co-accused or officials of the Anti-Narcotics Force had no ill-will, prejudice or malice against the accused to falsely implicate him in the case—Huge quantity of heroin was recovered by the r

2004  SCMR  1106   SUPREME-COURT

GHULAM RASUL VS THE STATE

—-S. 9(c)—Constitution of Pakistan (1973), Art. 185(3)—Trial Court as well as High Court had believed the evidence of Sub-Inspector of police who had conducted the raid and effected the recovery of the narcotics on the pointation of accused—Chemic

2004  SCMR  988   SUPREME-COURT

RIAZ AHMAD VS THE STATE

—-S.9(c)—Constitution of Pakistan (1973), Art.185(3)—Accused was apprehended when he was carrying 5 kilograms of Charas in a shopper bag—Contentions of the accused were that the conviction had simply been recorded on the testimony of the police of

2004  PLD  118   QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL REHMAN VS THE STATE

—-S. 9(c)—Qanun-e-Shahadat (10 of 1984), Art.40—Appreciation of evidence—Prosecution version was supported by all the witnesses who had remained firm despite lengthy cross-examination–Recovery of narcotics-was not controverted by the defence, acc

2004  PLD  246   PESHAWAR-HIGH-COURT

Mian GUL BACHA KHAN VS THE STATE

—-Ss. 9, 20, 21, 25—Criminal Procedure Code (V of 1898), S.103–Appreciation of evidence—Huge quantity of foreign-made Charas weighing 2870 Kilograms having been recovered in the case, it could not be believed that such a large quantity of contraban

2004  PLD  230   PESHAWAR-HIGH-COURT

INAYATULLAH VS THE STATE

—-S. 9(c)—Appreciation of evidence—Complainant on whose report case was registered against accused; was not examined and prosecution witness who had produced alleged recovered narcotics was also not examined at the trial whereas it was he who could

2004  PLD  228   PESHAWAR-HIGH-COURT

Mst. SIRAJA and 2 others VS THE STATE

—-Ss. 497 & 52—Control of Narcotic Substances Act (XXV of 1997), S. 9—Bail, grant of—As there was prior information about the smuggling of contraband through female folk, it was morally incumbent upon S.H.O., who was heading the search party to ha

2004  YLR  1226   PESHAWAR-HIGH-COURT

AURANGZEB VS THE STATE-

—-S. 9(b)(c)—Appreciation of evidence–Investigation in the case had been made in a very superficial manner without application of mind and without adhering to the law and rules—Evidence of prosecution, except statement of, one prosecution witness,

2004  YLR  1051   PESHAWAR-HIGH-COURT

IMRAN-UD-DIN VS THE STATE

—-S. 9(c)—Appreciation of evidence–Burden of proof—Prosecution would want the Court to believe that prosecution witnesses were truthful, so would the defence like that evidence led by its witnesses should be believed as against prosecution evidence

2004  YLR  439   PESHAWAR-HIGH-COURT

TAJ ALI KHAN VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of–Recovery of 1500 grams of Charas–Quantity of 500 grams exceeded upper limit of 1000 grams—Such was a border line case between cls. . (b) & (c) of S. 9 of Control of Na

2004  PCRLJ  2007   PESHAWAR-HIGH-COURT

KHAN GUL VS THE STATE

—-S. 9(c)—Appreciation of evidence—Conductor of vehicle from which box allegedly containing Charas, was recovered, though was an independent witness, but he instead of supporting prosecution evidence, had deviated from his previous stance and stated

2004  PCRLJ  1992   PESHAWAR-HIGH-COURT

MINHAJ VS THE STATE

—-S. 9—Appreciation of evidence—Prosecution story was that accused was travelling in a bus at the relevant time—Though no evidence was on the file regarding other passengers in the bus, but being a public transport which did not belong to the accu

2004  PCRLJ  1224   PESHAWAR-HIGH-COURT

SAWAR JAN VS THE STATE

—-S. 9—Appreciation of evidence—Mere fact that the police witnesses had no enmity or motive to falsely implicate the accused, by itself, was not a strong circumstance to hold that whatever had been alleged by the prosecution should be implicitly rel

2004  PCRLJ  1194   PESHAWAR-HIGH-COURT

AKBAR KHAN VS THE STATE

—-S. 9—Appreciation of evidence—Chemical Examiner’s report was in positive—Recovery of Charas from the accused had been proved by the S.H.O. and a police constable who had no enmity or malice against him for his false implication and had fully sup

2004  PCRLJ  56   PESHAWAR-HIGH-COURT

IRSHAD VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9–Bail, grant of-One thousand grams of opium was recovered from the possession of accused—Recovery was witnessed by two police officials, who were as good witnesses as any other persons–

2004  PCRLJ  22   PESHAWAR-HIGH-COURT

NAZEEM KHAN VS THE STATE

—-S. 9(c)—Appreciation of evidence—Both prosecution witnesses were consistent regarding premises from where contraband was recovered and both were consistent that at the time of recovery accused was present at place of recovery of contraband—Accus

2004  PLD  115   PESHAWAR-HIGH-COURT

SHAMSHADA VS THE STATE

—-Ss. 9(c), 20 & 25—Criminal Procedure Code (V of 1898), S.103–Appreciation of evidence—Recovery proceedings—Explanation offered by one of the accused persons for his false implication in offence, was not plausible as he had not been able to expl

2004  MLD  290   PESHAWAR-HIGH-COURT

SANA GUL VS THE STATE

—-S.9—Criminal Procedure Code (V of 1898), S.221—Appreciation of evidence —Hujra wherefrom contraband Charas had allegedly been recovered was a joint one belonging to all three brothers of accused and same was accessible to every body—Contraband

2004  PLD  59   PESHAWAR-HIGH-COURT

AQAL KHAN VS THE STATE

—-Ss. 9, 9(b) & 9(c)—Appreciation of evidence—Although 280 Kilograms “Charas” and 78 kilograms opium had allegedly been recovered from the accused, yet only one kilogram “Charas” and one kilogram opium were produced before the Trial Court—Samples

2004  PLD  47   PESHAWAR-HIGH-COURT

NAZEEM KHAN VS INSPECTOR-GENERAL OF PRISONS, GOVERNMENT OF N.-W.F.P.

—-S. 382-B—Control of Narcotic Substances Act (XXV of 1997), S.9–Pakistan Prison Rules, Chap.15, Rr.373, 375, 378, 381, 383 & Chap. 8, Rr. 204(i) & 216(2)—Constitution of Pakistan (1973), Art. 199–Constitutional petition—- Detention” and “senten

2004  PLD  829   LAHORE-HIGH-COURT-LAHORE

REHMAT SHAH AFRIDI VS THE STATE

—-S. 9(c)–Appreciation of evidence—Prosecution had successfully discharged its onus of proof and a presumption stood lawfully raised against the accused that he not only was indulging in trafficking of “Charas” but had also led to its recovery—Accu

2004  PLD  539   LAHORE-HIGH-COURT-LAHORE

JOSHUA CHIGBOGU VS THE STATE

—-S. 9(c)—Appreciation of evidence—Evidence of recovery of heroin from the accused was consistent and inspired confidence—Recovery witnesses had no enmity or ill-will towards the accused—Defence version was wild, baseless and an afterthought—H

2004  YLR  2425   LAHORE-HIGH-COURT-LAHORE

SULTAN AHMAD VS THE STATE

—-S.497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(b)–Bail, grant of—Further inquiry—Recovery memo. complaint and statements of witnesses and the entire Police Ziminies were stated to have, been recorded by Sub Inspector of Police/

2004  YLR  2358   LAHORE-HIGH-COURT-LAHORE

KHALIQ AHMED VS THE STATE

—-S.9(b)—Criminal Procedure Code (V of 1898), Ss.439, 517 & 550—Grant of Superdari of vehicle—Car in question was taken into possession when Charas was allegedly recovered from the seat of driver the car—Driver had already been admitted to bail

2004  YLR  2025   LAHORE-HIGH-COURT-LAHORE

ADEEL VS THE STATE

—-S. 9(b)—Appreciation of evidence–Accused did not challenge their conviction on merits, but pleaded for reduction in sentence; firstly on the ground that they were not previously involved in any criminal case; secondly on the ground that they had se

2004  YLR  1959   LAHORE-HIGH-COURT-LAHORE

ALLAH RAKAH VS THE STATE

—-S.497- Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4–Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail, refusal of—Huge quantity of Charas was recovered from accused and he was previously involved in five criminal case

2004  YLR  1305   LAHORE-HIGH-COURT-LAHORE

AHMAD NAWAZ VS THE STATE

—-S.497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 21—Bail, grant of—No precise measurement being possible at the time of recovery, possibility that SO grams of “Charas ” might have been exaggerated could not be ruled out and the

2004  YLR  1303   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD YASIN VS THE STATE

—-Ss.9(c), 21 & 22—Appreciation of evidence—Entire investigation in the case had been made by Assistant Sub-Inspector of Police who had recovered narcotic substances, made them into sealed parcels, prepared their sample sealed parcels and also draft

2004  YLR  1286   LAHORE-HIGH-COURT-LAHORE

AHMAD YAR VS THE STATE

—-S.9(c)—Appreciation of evidence–Sentence, reduction in—Accused was the driver of the car and a shopping bag containing heavy quantity of narcotics was recovered from underneath the driving seat—Accused, had never taken the plea either during in

2004  YLR  939   LAHORE-HIGH-COURT-LAHORE

STATE/FORCE COMMANDER, REGIONAL DIRECTORATE ANF, RAWALPINDI  VS MUHAMMAD AKRAM

—-S. 516-A—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c)/14/15 & 74—Release of vehicle on Superdari—Validity—Conductor and driver of the truck were closely related to the owner of the truck which was loaded with the narcotics in the

2004  YLR  70   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AYYUB VS THE STATE

—-Ss. 9 & 18—Constitution of Pakistan (1973), Art.199—Constitutional petition–Reference against accused on the ground of corruption and corrupt practices–Validity—Case of prosecution regarding References filed in the Accountability Court was tha

2004  PCRLJ  1932   LAHORE-HIGH-COURT-LAHORE

REHMAT SHAH AFRIDI VS THE STATE

—-Ss. 9(c) & 15—Appreciation of evidence—Recovery witnesses who had no reason to falsely depose against the accused had corroborated each other—Chemical Examiner’s report had confirmed that the narcotics recovered from the accused was “Charas”—H

2004  PCRLJ  1670   LAHORE-HIGH-COURT-LAHORE

ZAKIR ALI VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b) & 6/9—Bail, grant of—Accused had no criminal history and was not involved in any criminal case of like nature—Accused did not have notoriety as drug pusher either—Being first

2004  PCRLJ  1424   LAHORE-HIGH-COURT-LAHORE

JAHANGIR MUHAMMAD KHAN and others VS THE STATE

—-S. 9(c)—Appreciation of evidence—Sentence, reduction in—Accused had led to the recovery of the narcotics after opening the store room and the boxes lying therein by using the keys which were in their possession—After recovery of the said keys

2004  PCRLJ  1273   LAHORE-HIGH-COURT-LAHORE

JOSHUA CHIGBOGU VS THE STATE

—-Ss. 9 & 15—Appreciation of evidence—Prosecution had established its case against accused. beyond reasonable doubt—Trial Court, in circumstances had correctly recorded conviction of accused—Accused had not assailed his conviction, but had praye

2004  PCRLJ  1179   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD HUSSAIN VS THE STATE

—-S. 9(c)—Appreciation of evidence—Recovery of huge quantity of narcotics from the accused was proved on record by all the five prosecution witnesses who had no malice or enmity against him–Minor discrepancies in prosecution evidence due to lapse o

2004  PCRLJ  1163   LAHORE-HIGH-COURT-LAHORE

Mian MUHAMMAD IDREES VS THE STATE

—-S. 352—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—High Court (Lahore) Rules and Orders, Vol. III, Chap. I, Part A(3)—Place for holding Criminal Court for trial—Criminal trial should always be held in an open Court where general p

2004  PCRLJ  1076   LAHORE-HIGH-COURT-LAHORE

MUZAFFAR MAHMOOD alias ZAFRI VS THE STATE

—-Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S.103–Appreciation of evidence—Search—Reduction in sentence—Mitigating circumstances—Contradiction appeared in two statements of Police Officer one made in-Court as prosecution witness and

2004  PCRLJ  743   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD YAQOOB VS THE STATE

—-S. 9(b)—Sentence—Quantum—Principles—Trial Court, in the present case, had given the accused a very harsh sentence of 5 years against the recovery of a very small quantity of opium (180 grams)–Accused having already undergone some part of the

2004  PCRLJ  732   LAHORE-HIGH-COURT-LAHORE

MUNIR AHMAD VS THE STATE

—-Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S.103–Appreciation of evidence—Recovery proceedings—Accused was apprehended red-handed by police party while in possession of a huge quantity of narcotics—Report submitted by Chemical Examine

2004  PCRLJ  593   LAHORE-HIGH-COURT-LAHORE

ABDUL SHAHID QURESHI VS THE STATE

—-Ss. 9(c), 14, 15 & 47—Criminal Procedure Code (V of 1898), Ss. 173, 190, 435, 439 & 561-A—Appreciation of evidence—Summoning—Petitioner had challenged order of Special Court whereby petitioner was summoned as an accused under Ss.9(c), 14 & 15,

2004  PCRLJ  361   LAHORE-HIGH-COURT-LAHORE

RIASAT ALI VS THE STATE

—-Arts. 3/4—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Criminal Procedure Code (V of 1898), S.342—Appreciation of evidence—Prosecution evidence was silent about the fate of narcotics allegedly recovered from the accused—Was not k

2004  PCRLJ  311   LAHORE-HIGH-COURT-LAHORE

ASHIQ HUSSAIN VS THE STATE

—-S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail, grant of—Complainant, police official who was on visiting terms with the accused, Was forbidden to visit any more because of his objectionable activities which caused annoy

2004  PCRLJ  129   LAHORE-HIGH-COURT-LAHORE

Rana MUHAMMAD ANWAR VS D.I.-G.

—-Ss. 6, 9(c) & 21—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4/28—Criminal Procedure Code (V of 1898), S.87—Reinvestigation of case—Proceedings against Police Officer—During pendency of trial against accused, father of accuse

2004  PCRLJ  27   LAHORE-HIGH-COURT-LAHORE

NAZIR AHMAD VS THE STATE

—-S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51—Bail, grant of—Further inquiry—No recovery was effected from accused and he was also not apprehended at the spot—Dera where the accused allegedly was present at the tim

2004  MLD  1859   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ARIF VS State

–S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9 & 21—Bail, grant of—Further inquiry—Bail was, urged by accused on grounds; firstly that Assistant Sub-Inspector of Police who had conducted the raid, recovered goods and conduc

2004  PLD  631   KARACHI-HIGH-COURT-SINDH

THE STATE VS MUHAMMAD IRSHAD

—-Ss. 497(5) & 516-A—Control of .Narcotic Substances Act (XXV of 1997), S.9—Bail, cancellation of—Huge quantity of 10 kgs. of heroin was involved in the case which was kept in the property room of Anti-Narcotic Force police as the Trial Court had

2004  PLD  508   KARACHI-HIGH-COURT-SINDH

YOUSIF LASSI and others VS THE STATE

—-S. 9(c)—Appreciation of evidence—Evidence of recovery of narcotics from the accused was consistent on each and every aspect of the case and the same was further supported by the Chemical, Examiner’s report disclosing the material to be opium—Con

2004  PLD  380   KARACHI-HIGH-COURT-SINDH

HAJI VS THE STATE

—-S. 9(b)—Appreciation of evidence—Principles—Any piece of evidence deposed in examination-In-chief, if not denied in cross-examination, to be presumed to have been accepted as true by the other side.

2004  YLR  2099   KARACHI-HIGH-COURT-SINDH

IMRAN AMEEN VS THE STATE

—-Ss.6/9(c)/14 & 15—Appreciation of evidence—Special Prosecutor had not supported conviction and sentence awarded to accused by Trial Court in view of the fact that no evidence was available against the accused —Co-accused had himself admitted the

2004  YLR  2094   KARACHI-HIGH-COURT-SINDH

Haji ABDUL SATTAR VS THE STATE

—-S.9(c)—Appreciation of evidence—Mere non production of Roznamcha entry would not by itself render prosecution story doubtful, if otherwise the evidence was reliable and no such objection for non production of Roznamcha was raised at the proper sta

2004  YLR  1118   KARACHI-HIGH-COURT-SINDH

NAWAZ  VS THE STATE

—-S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail—Although private persons were not required to witness the recovery of narcotic substances as provided under the Control of Narcotic Substances Act, 1997, yet the place of recove

2004  YLR  1076   KARACHI-HIGH-COURT-SINDH

AZAD KHAN VS THE STATE

—-S. 9(c)—Criminal Procedure Code (V of 1898), S.353—Qanun-e-Shahadat (10 of 1984), Arts. 70 & 71—Appreciation of evidence—After recording the statements of witnesses in one case, their copies were prepared and placed on the record of the other

2004  YLR  894   KARACHI-HIGH-COURT-SINDH

ISMAIL VS THE STATE

—-S. 9(c)—Appreciation of evidence–Property received by the Chemical Analyser appeared to be a different property from the property sealed as sample at the place of incident—Prosecution had failed to explain the said discrepancy in the evidence and

2004  PLD  201   KARACHI-HIGH-COURT-SINDH

GHAUS BUX VS THE STATE

—-S. 9(c)—Qanun-e-Shahadat (10 of 1984), Art.129, illus. (g)- Appreciation of evidence—Principles—Where a best piece of evidence is withheld by a party despite its availability, it is presumed to have some sinister motives behind it—Even otherwi

2004  PLD  191   KARACHI-HIGH-COURT-SINDH

KHADIM HUSSAIN  VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 51(2)—Bail—Sessions Court by means of the impugned order had granted bail to the accused in the sum of Rs. one lac on furnishing security in the said amount—Said order had been

2004  PCRLJ  2060   KARACHI-HIGH-COURT-SINDH

SHAREEF KHAN VS THE STATE

—-Ss. 516-A & 439—Control of Narcotic Substances Act (XXV of 1997), Ss.9(b), 32 & 33(1)—Custody of motorcycle on Superdari–Evidence, prima facie, was available on record to support the contention of the applicant that he was the owner of the motorc

2004  PCRLJ  2035   KARACHI-HIGH-COURT-SINDH

RIAZ AHMED VS THE STATE-

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)–Bail, grant of—Accused had alleged that due to enmity with police, he had been falsely implicated in the crime—State counsel, in view of small quantity of Charas recovered from acc

2004  PCRLJ  2022   KARACHI-HIGH-COURT-SINDH

MUMTAZ VS THE STATE

—-S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S. 9(b)—Bail, grant of—Further inquiry—Bail was sought mainly on grounds that offence against accused did not fall within the prohibitory clause as it was punishable with a maximum im

2004  PCRLJ  1991   KARACHI-HIGH-COURT-SINDH

MUHAMMAD alias MANDO MALLAH VS THE STATE

—-S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail, grant of—Further inquiry—Bail was sought mainly on the grounds that accused neither was arrested from the spot nor anything was recovered from his person so as to connect

2004  PCRLJ  1793   KARACHI-HIGH-COURT-SINDH

JHANDO KHAN VS THE STATE

—-S. 497—Penal Code (XLV of 1860), Ss.402/353/324/337-H(ii)/149–Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail, grant of—Accused vas in custody for more than one year and two months, but. even the charge’ had not yet been framed in

2004  PCRLJ  989   KARACHI-HIGH-COURT-SINDH

MUHARRAM VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(a)—Bail, grant of—Accused was arrested from near a shrine on having been found in possession of 95 grams of “Charas”—No private person was associated to witness the recovery—Enmity

2004  PCRLJ  912   KARACHI-HIGH-COURT-SINDH

FAYYAZ ALI VS THE STATE

—-S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(b)–Bail, grant of—Further inquiry—Recovery of Charas, though had been shown from accused an hour earlier to lodging of F.I.R., but names of Mashirs, who were stated to be police pe

2004  PCRLJ  746   KARACHI-HIGH-COURT-SINDH

Khan MUHAMMAD KHAN VS THE STATE

—-Ss. 9(c), 32 & 33—Criminal Procedure Code (V of 1898), Ss.516-A & 517—Confiscation of car used in offence—Application to recall confiscation order—Car allegedly used in commission of offence was ordered by the Special Court to be confiscated a

2004  MLD  1253   KARACHI-HIGH-COURT-SINDH

ABDUL REHMAN PATHAN VS THE STATE

—-S.9(c)—Appreciation of evidence—Case property .was sent to Chemical Analyser with a delay of more than two months and no plausible explanation of such delay had come from Investigating Officer—Nothing was on record to show that during said perio

2004  MLD  568   KARACHI-HIGH-COURT-SINDH

ABDUL MAJEED VS THE STATE

—–S.9(c)—Appreciation of evidence—Recovery witnesses had not only contradicted each other on material particulars but had also contradicted the contents of the Chemical Examiner’s report—Case property sealed in the gunny bag was not produced in t

2004  MLD  542   KARACHI-HIGH-COURT-SINDH

JAMIL KHAN AFRIDI VS THE STATE

—-S.9(c)—Anti-Narcotics Force Act (III of 1997), S.14—Criminal Procedure Code (V of 1898), S.516-A—Appreciation of evidence—Fact that ten slabs of “Charas”, according to prosecution, were sent to Chemical Analyser was not supported or corroborat

2004  MLD  430   KARACHI-HIGH-COURT-SINDH

Syed KARIM VS THE STATE

—-S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Accused being a fugitive from law, no doubt, was not entitled to some of his normal rights, but he was in custody for a period of over two years in the case after his

2004  PLD  681   KARACHI-HIGH-COURT-SINDH

KHAN MUHAMMAD VS THE STATE

—-Ss. 9(c), 20 & 21—Appreciation of evidence—Memo. of the place of incident was not prepared—Ownership of the place of recovery of narcotics was not established—Prosecution evidence was contradictory in material particulars qua the contents of t

2004  PLD  644   KARACHI-HIGH-COURT-SINDH

SIKANDAR VS THE STATE

—-S. 9(b)—Qanun-e-Shahadat (10 of 1984), Art.129, Illus.(g)–Appreciation of evidence—Recovery witnesses had made contradictory statements—Best piece of evidence of private and independent witness having been- withheld by the prosecution without a

2003  SCMR  881   SUPREME-COURT

STATE VS HEMJOO

—-Ss. 9(b) & 21—Constitution of Pakistan (1973), Art. 185(3)—Appeal against acquittal—Excise Inspector on receipt of information went to the house of accused, made his personal search and then by making house search recovered “Charas” from the bed

2003  SCMR  246   SUPREME-COURT

ABDUL SALAM VS THE STATE

—S. 516-A—Control of Narcotic Substances Act (XXV of 1997), Ss.32, 74 & 9(c)—Constitution of Pakistan (1973), Art. 185(3)—Custody of vehicle on “Superdari”—No material was available on record to show that the petitioner had no knowledge about th

2003  PLD  916   SUPREME-COURT

THE STATE/ANTI-NARCOTICS FORCE, REGIONAL DIRECTORATE, SINDH VS SHAKEEL AHMED SIDDIQUI

—-S. 428—Control of Narcotic Substances Act (XXV of 1997), S.9(c)–­Constitution of Pakistan (1973); Art.185(3)—Plea raised by the accused before the High Court was that he was not aware that cartons which were kept in the room of his house by his

2003  YLR  2675   PESHAWAR-HIGH-COURT

Mst. YASMIN VS THE STATE

—-S. 9(c)—Appreciation of evidence—Parcel of the allegedly recovered narcotics was bearing a seal other than the official seal of the Investigating Officer—Sample of the recovered “Charas” was admittedly not taken in the presence of the recovery w

2003  YLR  1901   PESHAWAR-HIGH-COURT

ADIL HUSSAIN VS THE STATE

—-Ss. 6, 7, 8 & 9—Appreciation of evidence—Contradiction appearing in testimony of prosecution witnesses with regard to time of occurrence—One witness had stated that occurrence took place at 8-30 p.m. and that no witness from the public was calle

2003  YLR  1775   PESHAWAR-HIGH-COURT

ABDUL MAJID VS THE STATE

—-S. 9(c), 25 & 29—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Statements of Investigating Officer and other Police Officials were corroborated by driver of bus from where Charas was recovered—Driver of the bus, who was t

2003  YLR  1748   PESHAWAR-HIGH-COURT

AFSAR KHAN VS THE STATE

—Ss. 6, 7, 8, 9(c) & 25—Appreciation of evidence—Deposition of Investigating Officer who had also conducted raid, with regard to recovery which was affirmed by other prosecution witness, could safely be depended upon as he was not only a responsible

2003  YLR  1507   PESHAWAR-HIGH-COURT

AMANUL MULK VS THE STATE

—S.9—Customs Act (IV of 1969), S.156(1)(89)—Constitution of Pakistan (1973), Arts. 13(a) & 199—Criminal Procedure Code (V of 1898), Ss. 403 & 561-A—Constitutional petition—Double jeopardy challenged—Accused, after having served out their sen

2003  PCRLJ  1392   PESHAWAR-HIGH-COURT

ZAR GUL VS THE STATE

—-Ss. 9, 20, 21 & 25—Search proceedings—Accused from whom more than 2 Kgs. Charas had allegedly been recovered had contended that despite having ample opportunity to procure and cite two witnesses from the public, no effort was made by raiding offic

2003  PCRLJ  1387   PESHAWAR-HIGH-COURT

SARWAR VS STATE

—-S. 9(c)—Appreciation of evidence—Allegation against accused was that while travelling in a bus, Charas was recovered from a wooden box of which accused had claimed ownership and which box was opened by the key supplied by accused—Police officer

2003  PCRLJ  1379   PESHAWAR-HIGH-COURT

TILA MUHAMMAD VS THE STATE

—-Ss. 6, 7, 8 & 9—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4—Appreciation of evidence—Prosecution had not been able to establish with any reasonable certainty as to whether all or which of the three accused persons could be attr

2003  PCrLJ  1139   PESHAWAR-HIGH-COURT

JAMEEL KHAN VS THE STATE

—-S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6,7, 9 & 21—Bail, grant of—Search and consequent recovery in case having been made in contravention of provisions of S.21 of Control of Narcotic Substances Act, 1997, such fact alone wou

2003  PCRLJ  1123   PESHAWAR-HIGH-COURT

BAKHT JAMAL VS THE STATE

—-S.4—Specific Relief Act (I of 1877), S.42—Constitution of Pakistan (1973), Art.203-D(2)—Inheritance—Suit for declaration—Trial Court decreed the suit holding that plaintiffs being children of predeceased sons/daughters of original owner of s

2003  PCRLJ  510   PESHAWAR-HIGH-COURT

MUHAMMAD KHAN VS THE STATE

—–S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9–Bail, refusal of —Large quantity of heroin weighing 800 grams had been recovered from the car driven by the accused at the time of interception by the Anti-Narcotic Staff—Prima facie

2003  PCRLJ  502   PESHAWAR-HIGH-COURT

MUHAMMAD ILYAS VS THE STATE

—–Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 25—Non-compliance with provisions of S.103, Cr.P.C.–Complainant was claimed to have effected recovery on the basis of a prior information and no witness from the locality was

2003  PCRLJ  470   PESHAWAR-HIGH-COURT

NEK MUHAMMAD VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4 — Bail, refusal of —Charas weighing 40 grams had been recovered from the possession of the accused through a fake custom

2003  PCRLJ  82   PESHAWAR-HIGH-COURT

AJAB SULTANA VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9—Appreciation of evidence—No misreading or non-reading of evidence resulting into miscarriage of justice was pointed out in the impugned judgment—Accused had not clarified their position about being in possession of 16000 grams of “Charas” and their solitary word of having been falsely charged without a positive attempt to substantive the same was of no consequence—Police Officer, who was a witness to the commission of offence, was not legally prohibited to be a complainant as well as an Investigating Officer in the case so long as it did not in any way prejudice the accused and such fact, by, itself, was no ground to deprecate tote investigation and vitiate the trial—Conviction of accused was maintained in circumstances—Accused ladies were first offenders and the narcotic recovered from them was less than ten kilograms–Sentence awarded to accused being too harsh and not in consonance with the provisions of S.9(c) of the Control of Narcotic Substances Act, 1997, was substantially reduced.

2003  PLD  130   PESHAWAR-HIGH-COURT

NEK MUHAMMAD VS THE STATE

—-Ss. 9(c) & 9(b)—Appreciation of evidence—Investigating Officer had only separated sample for chemical analysis from one packet out of the total lot of 32 packets recovered from the truck—Remaining heroin could not be produced by the prosecution

2003  MLD  1637   PESHAWAR-HIGH-COURT

NOOR ALI KHAN VS THE STATE

—-S.497—Control of Narcotic Substances Act (XXV of 1997), S.9–­Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4–­Bail—-Recovery of 1100 gms. of Charas—Such quantity exceeded by margin of 1000 gins.—Court while deciding bail a

2003  MLD  261   PESHAWAR-HIGH-COURT

FAZAL-E-AYAN VS THE STATE

—-S.497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7 & 9—Bail, grant of—Allegation against the accused was that he had been implicated in the commission of an offence by

2003  MLD  259   PESHAWAR-HIGH-COURT

SHER KHAN VS THE STATE

Control of Narcotic Substances Act 1997 —-S.9—Appreciation of evidence—One of the. marginal witnesses to recovery memo. in his statement had stated that five slabs of Charas were recovered from the possession of accused,- but on opening the sealed parcel in the Court under order of Trial Court, it contained twenty slabs—Investigating Officer could not give exact number of slabs recovered from possession of accused—Other marginal witness to recovery was not produced by prosecution—Witnesses had admitted that sample drawn from recovered substance was taken from one slab and not from all slabs—Recovery, in circumstances, had become highly doubtful—Recovery was effected at General Bus Stand which was thickly populated place, but none from public was associated by Investigating Officer with said recovery—Prosecution case being full of doubts, accused was entitled to be extended benefit of doubt—Accused was acquitted of charge against him and was ordered to be released from jail forthwith.

2003  PLD  128   PESHAWAR-HIGH-COURT

Mst. SHEHNAZ VS THE STATE

—-S. 9(c)—Appreciation of evidence—According to the report of Chemical Examiner only one parcel containing heroin weighing three grams had been received in his office out of eight samples—Even if the recovery of the narcotics was taken to be prove

2003  PLD  87   PESHAWAR-HIGH-COURT

THE STATE VS RASHID

—-Ss. 439 & 516-A—Control of Narcotic Substances Act (XXV of 1997), Ss..6/7/8/9—Customs Act (IV of 1969), Ss.16/156(1)(89)/157/178/2(s)–Superdari of vehicle—Petitioner had challenged the order of Judge Special Court whereby he had handed over the

2003  YLR  2401   LAHORE-HIGH-COURT-LAHORE

SAMINA BIBI VS THE STATE

—-S. 497, first proviso—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9/51–­Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4—Bail, grant of—Accused was a woman and had five daughters, the youngest being merely one year old

2003  YLR  1927   LAHORE-HIGH-COURT-LAHORE

GHULAM FARID VS THE STATE

—-S.9(c)—Appreciation of evidence–­Allegation against accused persons was that huge quantity of Charas and opium was recovered from them—Recovery witnesses, who had no enmity with accused persons, had fully supported prosecution case and no discre

2003  YLR  1919   LAHORE-HIGH-COURT-LAHORE

SAEED RASUL VS THE STATE

—-Ss.497, 103 & 156(2)—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4—Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 21—Bail, grant of—Offence against the accused having been defined in two different statutes i.e. und

2003  YLR  1035   LAHORE-HIGH-COURT-LAHORE

MUNAWAR HUSSAIN MANJ VS THE STATE

—-Ss.9(c) & 15—Appreciation of evidence–Judicial confession of co-accused involving the accused had been recorded .in clear violation of law and without observing the legal formalities—Even otherwise co-accused had resiled from their confessional s

2003  YLR  905   LAHORE-HIGH-COURT-LAHORE

SHAHZAD GHAFFAR VS THE STATE

Control of Narcotic Substances Act 1997 —-S.9(c)—Appreciation of evidence—Sample of narcotic alllegedly recovered from the accused was sent for analysis to the Chemical Examiner after a delay of three months and twenty days—Two co-accused had been acquitted on the same evidence and their acquittal had not been challenged—F.I.R. under the direction of High Court had been registered against the Investigating Officer in the case—Case against accused, thus, was of doubtful nature—Accused was acquitted on benefit of doubt in ,circumstances.

2003  PCRLJ  1912   LAHORE-HIGH-COURT-LAHORE

TAHIR NADEEM VS THE STATE

—-Arts. 3/4—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Appreciation of evidence—Alleged narcotic was not recovered from the possession of accused as according to the Investigating Officer, accused ran away after throwing away black c

2003  PCRLJ  1776   LAHORE-HIGH-COURT-LAHORE

ABDUL MUTALIB VS THE STATE

—-S.497–Control of Narcotic Substances Act (XXV of 1997), S.9(c)— Bail, grant of—Huge quantity of Charas weighing 6 Kgs. and opium 600 grams had been recovered from the Jeep which was being driven by the accused—Prima facie accused was involved i

2003  PCRLJ  1740   LAHORE-HIGH-COURT-LAHORE

PERVAIZ AKHTAR VS THE STATE

—S. 498—Control of Narcotic Substances Act (XXV of 1997), Ss. 6/9(c)—Pre-arrest bail, grant of—Police during investigation had collected material against accused through inculpatory statement made by his own son to the effect that accused was also

2003  PCRLJ  1529   LAHORE-HIGH-COURT-LAHORE

SHAMIM VS THE STATE

—-S. 9(c)—Appreciation of evidence—Prosecution case was that two accused persons got recovered opium and Charas from their house and that accused who was wife of one of said two accused persons had produced keys of Almirah and got recovered opium an

2003  PCRLJ  1515   LAHORE-HIGH-COURT-LAHORE

JAN GUL VS THE STATE

—-Ss. 9(c) & 25—Appreciation of evidence—Prosecution had substantiated its case through production of oral and documentary evidence—No material contradiction had been found either in prosecution version as given in F.I.R. or the deposition made by

2003  PCRLJ  1128   LAHORE-HIGH-COURT-LAHORE

AMANULLAH VS THE STATE

—-S. 9(c)—Appreciation of evidence—Police officials who were prosecution witnesses had deposed about apprehending the accused and recovery of’3 Kilograms Charas from him and taking same into possession by S.H.O., faced the test of cross-examination,

2003  PCrLJ  1108   LAHORE-HIGH-COURT-LAHORE

AMAN ULLAH VS THE STATE

—-S. 9(c)—Sentence, reduction in—Appreciation of evidence—Evidence produced by prosecution against the accused was very convincing and no justification existed to falsely involve the accused in a case of recovery of heavy quantity of the narcotics

2003  PCRLJ  821   LAHORE-HIGH-COURT-LAHORE

SAEED AHMAD VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 51—Bail—Contention that fitness of a case for grant of bail was to be determined with reference to the quantity of the narcotic substance recovered from the accused was not impressi

2003  PCRLJ  436   LAHORE-HIGH-COURT-LAHORE

HAFIZ ULLAH VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9(c)—Appreciation of evidence—Prosecution evidence was cogent and consistent—Eye-witnesses had corroborated each other in respect of recovery of Charas—Defence had failed to show any mala fides against the police employees for false implication of accused in the offence—Chemical Examiner’s report regarding the recovered material being “Charas” was not controverted by accused—Charas was admittedly recovered from the vehicle being driven by the accused–Findings of the Trial Court did not suffer from any legal infirmity–Conviction and sentence of accused were maintained in circumstances–Order regarding confiscation of the vehicle warranted interference –Charas weighing 3 Kgs. was recovered from the vehicle of the accused, for which he had been sentenced to three years’ R.I. with a fine of Rs.10,000—To order confiscation of the vehicle was not a judicious exercise of discretion in circumstances and the same was set aside accordingly.

2003  PCRLJ  405   LAHORE-HIGH-COURT-LAHORE

NOOR MUHAMMAD VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9(b)—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4—Criminal Procedure Code (V of 1898), S.403—Appreciation of evidence—Double jeopardy—Prior to the present case, accused was involved in another case relating to recovery of heroin—Time lapsed in recovery of heroin leading to registration of said earlier case and recovery of Charas which had been made basis for registration of present case was hardly a few minutes or so—On the same date, same place and almost at the same time heroin and Charas were recovered from the accused, both the items fell within the definition of “narcotics”–Registration of another case (present case) was unjustified and it appeared to be an overplay by the police—Two cases having been carved out from recovery of narcotics from accused at the same time and accused had already been finally convicted, he could not be convicted twice for the same offence in the light of S.403, Cr.P.C.—Conviction and sentence of accused recorded by Trial Court, were set aside, in circumstances and accused was acquitted of the charge.

2003  PCRLJ  324   LAHORE-HIGH-COURT-LAHORE

SHAUKAT KHAN  VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9(c)—Appreciation of evidence—Both prosecution witnesses had made consistent statements on material points—Counsel for accused had failed to point out any discrepancy on material points in statements of said witnesses and minor discrepancies pointed out in their statements were not sufficient to discredit their statements which otherwise were consistent and natural—No enmity or grudge had been alleged against those witnesses to falsely implicate accused in the case—Accused had been apprehended at the spot and factum of recovery of 75 kilograms Charas and 8 kilograms of opium had been proved—Accused who was driver of car from which narcotics were recovered had taken a specific stand; he had admitted his presence at the scene of recovery and had also admitted that he was the driver of the car—Said accused had stated that co-accused who ran away from the spot had taken him from his house to -accompany him and that when they were going in the car, Charas and opium in question were recovered from underneath rear seat and from the carbon of the doors—Accused who was driving the car being aware of presence of Charas and opium being transported on the car, his conviction under S.9(c) of Control of Narcotic Substances Act, 1997 was maintained—Accused who was driver of the car and not proved to be owner of recovered Charas and opium, at the most had played role of carrier and real owner had not been apprehended by police; taking lenient view his death sentence was reduced to life imprisonment —Co-accused two ladies who were also travelling in the car had stated that they had simply took lift on car and were not aware of fact on of presence of Charas and opium in that car—Their statements were supported by statement of prosecution during cross-examination—Prosecution having failed to prove case against said two ladies by producing witness about their involvement in the case alongwith other co-accused, they were acquitted of charge.

2003  PCRLJ  248   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD TARIQ VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9(b)—Appreciation of evidence—Investigating Officer had admitted in his cross-examination that when he reached the place of occurrence complainant/A. S.-1. had produced before him two parcels of opium which he had inspected and found that the seals had not been affixed on the said parcels—Complainant had stated that after drifting the complaint he had handed over the same to a constable and had sent him to police station for registration of F.I.R.—Time of recovery mentioned in the complaint was 8-25 p.m. while according to the F.I.R. the same had been registered at 9-00 p.m. within 35 minutes—Perusal of the F.I.R. had shown that the distance between the place of recovery and the police station was about 13 miles—Investigating Officer in his examination-in-chief had stated that the complaint had been handed over to him while he was on patrolling duty and he had received the information at about 9-30 p.m. —Prosecution witness who had been sent to the police station for registration, of F.I.R. had not said anything about receiving of complaint and taking the same to the police station—Said prosecution witness had not mentioned about his meeting with the Investigating Officer who had ostensibly completed the investigation on the night of occurrence–Prosecution witnesses had come out with different and fantastic answers as regards the service of light—No private individual had been made a witness of the recovery proceedings although place of recovery was close to a Government tubewell—Police had fabricated the complaint, F.I.R. and recovery memo. and no proceedings had been recorded at the place of recovery—Time of registration of F.I.R. had also been manipulated—Material contradictions existed in the statements of the prosecution witnesses who were all police officials—Prosecution evidence was replete with doubts—Conviction and sentence passed against the accused were set aside and he was acquitted of the charge by giving him benefit of doubt.

2003  PCRLJ  202   LAHORE-HIGH-COURT-LAHORE

ABDUL SHAHID QURESHI VS THE STATE

—-Ss. 51 & 9(c)—Criminal Procedure Code (V of 1898), S.497—Bail, grant of—Jurisdiction—Perusal of S.51 of the Control of Narcotic Substances Act, 1997 shows that there is a bar on grant of bail in an offence which is exclusively punishable with

2003  MLD  1475   LAHORE-HIGH-COURT-LAHORE

FARHAD ALI VS THE STATE

—S.497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51(1)—Bail, grant of—Raiding Police party had apprehended the accused and had recovered 110 Kilograms of “Post/Bhiki

2003  PLD  606   KARACHI-HIGH-COURT-SINDH

SYED KARIM VS ANTI-NARCOTICS FORCE

—-S. 9(c)—Appreciation of evidence—Evidence against the accused and the acquitted co-accused was so closely connected that if one part of the evidence was disbelieved against one accused, then the remaining part thereof was adversely affected—Accu

2003  YLR  1163   KARACHI-HIGH-COURT-SINDH

WAZIR VS THE STATE

—-Ss.9(b)(c) & 51—Bail, grant of–Allegation against accused was that two Kgs. of Charas and five Kgs. of Bhang were recovered from his possession—Case of accused fell under S.9(c) of Control of Narcotic Substances Act, 1997 which was punishable wit

2003  PCRLJ  1869   KARACHI-HIGH-COURT-SINDH

ALI BUX VS THE STATE

—-S. 497— Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 9, 12, 14 & 15—Bail, grant of—Accused had been behind the bars for the last five years on the charge of having 250 grams of heroin—Case against the accused had not been proceed

2003  PCRLJ  1700   KARACHI-HIGH-COURT-SINDH

MUHAMMAD LATEEF VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXVII of 1997), Ss.6, 7, 8, 9, 12, 13, 14, 15 & 37—Bail, grant of—Contention of the accused was that although according to Mashirnama 4 Kgs. of Charas was alleged to have been recovered from the possess

2003  PCRLJ  1250   KARACHI-HIGH-COURT-SINDH

MEHBOOBUR REHMAN VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9/12/13 & 15—Bail, grant of—Accused earlier was granted bail and since then he was attending hearing and remained on bail for about four and half years, but thereafter bail granted to

2003  PCRLJ  865   KARACHI-HIGH-COURT-SINDH

Mian MUHAMMAD ARSHAD VS THE STATE

—-S. 9(c)—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4—Appreciation of evidence—Evidence of prosecution witnesses was contradictory and discrepant—One of the prosecution witnesses was a stock witness who had been appearing in ca

2003  PCRLJ  789   KARACHI-HIGH-COURT-SINDH

WAQAR KHAN VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c)—Prohibition (Enforcement of Hadd) Order (4 of 1979). Arts.3/4—Bail—Recovery of the narcotics having been made at the pointation of the accused himself by leading the police par

2003  PCRLJ  603   KARACHI-HIGH-COURT-SINDH

NAZEER AHMED VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9—Penal Code (XLV of 1860), S.193—Crimina: Procedure Code (V of 1898), S.439—Revision—Expungement of remarks of Trial Court for registering a case against the Investigating Officer for initiating false prosecution—Trial Court while granting bail to principal accused from whom 2500 grams of Charas was recovered discharged the co-accused from whom only a sum of Rs.70 was recovered and passed the impugned order whereby the Investigating Officer was directed to be prosecuted for having unlawfully kept the said co-accused in wrongful confinement for about eight months only on the basis of recovery of Rs.70 from him–Held, until and unless the entire matter was heard by the Trial Court, it could not be said with any degree of certainty that the said co-accused was not involved in the case or whether he was kept under wrongful confinement by the Investigating Officer on account of any, enmity–Impugned direction of the Trial Court was consequently expunged from the record and the proceedings, if any, instituted against the applicant Investigating Officer by virtue of the said order were discharged with the direction to Trial Court that it would be free to pass an appropriate order after the conclusion of the case—Revision petition was allowed accordingly.

2003  PCRLJ  562   KARACHI-HIGH-COURT-SINDH

HUSSAIN BAKHSH VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4—Bail, grant of—Case of accused was governed by the rule of consistency as co-accused with a similar role under simila

2003  PCRLJ  540   KARACHI-HIGH-COURT-SINDH

ASIF ALI VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4—Bail, grant of—From the personal search of the accused, 1 Kg. of Charas had been found as he was stopped by the polic

2003  PCRLJ  440   KARACHI-HIGH-COURT-SINDH

NIGERIAN NATIONAL VS THE STATE

—-S. 412—Control of Narcotic Substances Act (XXV of 1997), S.9–Appreciation of evidence—Appeal for reduction of sentence—Accused, a foreign national was found carrying in his belly 58 capsules of heroin powder weighing about 956 grams and was app

2003  PLD  230   KARACHI-HIGH-COURT-SINDH

SHAHMORE VS THE STATE

Control of Narcotic Substances Act 1997 —-Ss. 9(c) & 9(b)—Appreciation of evidence—Prosecution evidence was unanimous and satisfactory—Recovery of 2200 grams of “Charas” from the possession of accused was proved —Technicalities and minor contradictions in evidence in such cases were to be ignored arid the Court had to consider the entire material\on record as a whole—Recovered “Charas” being in the form of strips, the .recovery official was duty bound to take out sample from each and every strip for sending the same to the Chemical Examiner which was not done and the accused thus would be liable for being in possession only of 200 grams of “Charas” sent to Chemical Examiner whose report in that regard was positive—Conviction of accused under S.9(c) of the Control of Narcotic Substances Act, 1997, was altered to S.9(b) of the said Act in circumstances and his sentence was substantially reduced accordingly.

2003  MLD  1343   KARACHI-HIGH-COURT-SINDH

SARFARAZ KHAN VS THE STATE

—-S.497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of—Further inquiry—Accused had alleged that his father and his brother were taken away by C.I.A. Police from their house and were detained there till their indictmen

2003  MLD  1236   KARACHI-HIGH-COURT-SINDH

SHAH NAWAZ THAHEEM VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail, grant of —Charas weighing 400 grams was allegedly recovered from the accused—Maximum punishment for the alleged offence was seven years as provided under S.9(b) of Control o

2002  SCMR  273   SUPREME-COURT

SHADI KHAN VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9(a)(b)(c)—Customs Act (IV of 1969), S.156(1)(8) — Criminal Procedure Code (V of 1898), S.403—Constitution of Pakistan (1973), Arts.13(a) & 185(3)—Leave to appeal was granted by Supreme Court in the case to examine whether the offence under S.156(1)(8) of the Customs Act, 1969 and the offences under S.9(a)(b)(c) of the Control of Narcotic Substances Act, 1997 were same offences and if an accused was convicted and sentenced under any of the provisions out of both these laws, his trial/conviction/sentence under the other law would be a bar in view of the provisions of Art. 13(a) of the Constitution and S.403, Cr.P.C.

2002  PLD  610   SUPREME-COURT

THE STATE VS ALI RAZA (RAZA ALI)

—-Ss. 156(1)/8/14 —Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8 & 9—Criminal Procedure Code (V of 1898), S.403—Constitution of Pakistan (1973), Arts.199, 13 & 185(3)—Constitutional petition before High Court—Double trial—Com

2002  PLD  590   SUPREME-COURT

Hakim MUMTAZ AHMED VS THE STATE

—-S. 497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4—Control of Narcotic Substances Act (XXV of 1997), S.9–Constitution of Pakistan (1973), Art. 185(3)—Bail—Offences with which the accused was charged did not fall within the p

2002  PLD  321   SUPREME-COURT

THE STATE VS ABDUL QAHIR

Control of Narcotic Substances Act 1997 —-Ss. 9(c) & S.9(b)—Constitution of Pakistan (1973), Art.185(3)–Supreme Court Rules, 1980, O.XXIII, R.2—Petition for leave to appeal barred by 18 days—Contention of petitioner was that under O.XXIII, R.2 of Supreme Court Rules, 1980, time for filing appeal by. State was 60 days—Supreme Court granted leave to appeal subject to limitation.

2002  PLD  58   QUETTA-HIGH-COURT-BALOCHISTAN

MEHRAB KHAN VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9(c)—Appreciation of evidence—Prosecution evidence on all the material particulars was consistent, reliable and convincing—Accused had not specifically disputed the recovery of “Charas” from the vehicles being driven by them, rather the same was admitted by them —Charas was secretly placed in the specially designed beams for delivery to a specified person and the accused who were drivers/transporters of the vehicles could not -be assumed to be unaware of the same—Accused were in conscious possession of the contraband item and the prosecution having established its case of possession and transportation of the offensive material, burden had shifted upon the accused to give a legally acceptable explanation, but the position taken by them was not consistent and they had been changing their plea to their convenience—Ownership of the accused regarding the “Charas” was not necessary to be recorded as even transportation, despatch’and delivery of the same was also an offence under the law—Accused being incharge of a vehicle specially booked for a long journey must be saddled with necessary knowledge of its contents—Control of accused over the vehicles carrying huge quantity of narcotics was sufficient to establish their involvement in its transportation—Defence taken by accused was not plausible—Conviction and sentence of accused were upheld in circumstances.

2002  PCRLJ  320   QUETTA-HIGH-COURT-BALOCHISTAN

SHADI KHAN VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9(c)—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Applicability of S.103, Cr.P.C. had been excluded in cases under the Control of Narcotic Substances Act, 1997—Provisions of S.103, Cr.P.C., even otherwise, had no application in the case as no place was to be searched by the raiding party—Contraband material recovered from the accused on chemical analysis was found to be raw opium—Prosecution evidence was consistent, reliable and convincing on all material particulars—Accused had not disputed their presence in the vehicle, their apprehension by the Customs party at the given site and time and recovery of opium from the said vehicle—Customs Sepoy could not be conceived of having planted a huge quantity of opium weighing 368 kilograms on the accused—Defence evidence was not only conflicting on material points but was also misconceived, baseless and an afterthought—Driver of the vehicle as well as other two occupants of the vehicle had active and conscious possession of the illicit opium present therein which fact was also supported by the specified arms and ammunition recovered from the front cabin of the said vehicle—Conviction and sentence of accused were upheld in circumstances.

2002  MLD  241   QUETTA-HIGH-COURT-BALOCHISTAN

NASEEBULLAH VS THE STATE

Control of Narcotic Substances Act 1997 —S. 9(c)—Criminal Procedure Code (V of 1898), S.103—Appreciation of evidence—Recovery of “Charas” from the accused was not doubtful—Provisions of S.103, Cr.P.C. had no application to the case in question-Even otherwise -it was not absolute requirement that in every case public witnesses must necessarily be associated a it depended upon the facts of each case—Police officials were a good witnesses as any person from the public when they were no inimical towards the accused and had no personal grudge for his false implication—Huge quantity of “Charas” weighing 30 Kgs. could no possibly be planted on the accused and, therefore, non-production of independent witness in such recovery would not adversely affect recovery itself—Even said recovery had not been disputed by the defence which had given its own version on the same and the explanation furnished by the accused was neither reasonable nor worthy of reliance—Chemical examination report had confirmed that the seized material was “Charas”—No illegality, perversity or unreasonableness in the impugned judgment was pointed out—Conviction and sentence of accused were upheld in circumstances.

2002  YLR  3822   PESHAWAR-HIGH-COURT

GHARIB ULLAH VS THE STATE

—-S. 9—Appreciation of evidence—Official who had examined the material was Incharge of Forensic Science Laboratory and dealing with such-like matters since long—Sample taken from recovered material was duly sealed and nothing had been brought on r

2002  PCRLJ  1680   PESHAWAR-HIGH-COURT

GUL SAID VS THE STATE

Control of Narcotic Substances Act 1997 —-Ss. 9 & 36—Sending sample for chemical analysis—Provisions of S.36 of Control of Narcotic Substances Act, .1997 required that sample of narcotic drugs would be tested by Government Analyst—Where statute had itself used word `sample’ it was obvious that sample was always part of total and it would not require that whole quantity should be tested.

2002  PCRLJ  1506   PESHAWAR-HIGH-COURT

RAHIM DAD VS THE STATE

Control of Narcotic Substances Act 1997 —-Ss. 9, 20 & 25—Criminal Procedure Code (V of 1898), S.103–Appreciation of evidence—Contention of accused was that provisions of S.103, Cr.P.C. had seriously been violated in the case on account of non-association of private persons to witness .recovery—Contention was repelled, firstly for the reason that provisions of 5.103, Cr.P.C. had been excluded under provisions of S.25 of Control of Narcotic Substances Act, 1997 and that provisions of S.20 of Control of Narcotic Substances Act, 1997 were directory in nature—Non-compliance of S.103, Cr.P.C. could not be considered as a strong ground for holding trial of accused as bad in eyes of law—Main aim and object of enacting S.103, Cr.P.C. was to ensure that search and recovery was conducted honestly and fairly and to exclude any possibility of concoction and transgression—Section 103, Cr.P.C. was never meant to disbelieve statements of official witnesses under any circumstance.

2002  PCRLJ  1490   PESHAWAR-HIGH-COURT

JANA GUL VS THE STATE

Control of Narcotic Substances Act 1997 —-Ss. 9 & 25—Criminal Procedure Code (V of 1898), S.510–Appreciation of evidence—Material on record had proved that accused was apprehended by police officer from Railway Platform and Charas weighing 1900 grams was recovered from a tin of ghee carried by accused—Accused had failed to produce anything on record to prove that Charas was foisted upon him as he refused to oblige police officials–Prosecution witnesses had fully supported prosecution case on all material particulars and nothing substantially beneficial to the accused could be elicited from them—Non-compliance of mandatory provisions of S.103, Cr.P.C. was not fatal to the case because S.25 of Control of Narcotic Substances Act, 1997 had clearly excluded application of 5.103, Cr.P.C. to cases under Control of Narcotic Substances Act, 1997–Accused had objected that complainant police officer had combined in himself duties of complainant, Investigating Officer and witness to occurrence which had prejudiced interest of accused—No legal prohibition existed for police official to be a complainant, a witness to commission of offence and also to be an Investigating Officer, so long as it did not, in any manner prejudice the accused—Objections of accused that Chemical Examiner had not been examined and that prosecution had failed to show as to who incorporated “Murasila” into F.I.R. and who was assigned duty to take sample to Forensic Science Laboratory, were immaterial—If author of the report had not formally been examined as a prosecution. witness, S.510, Cr.P.C. would make his report or opinion, per se, admissible without calling him formally to prove it—Court in suitable cases, had power to examine Expert either of its own or on request of any party, if it felt so to meet the ends of justice—Mere fact that prosecution had omitted to bring on record as to who had been entrusted with duty to take sample to Laboratory for opinion and report or who incorporate Murasila into report, by itself, was not fatal to prosecution case—Such omission was merely an irregularity and could not be treated as an illegality vitiating trial or making prosecution case doubtful—Abandonment of one of marginal witness was also not fatal because law insisted on quality and not quantity of evidence—Prosecution having succeeded to prove its case against accused beyond any shadow of doubt, appeal against judgment of Trial Court whereby accused was convicted and sentenced, was dismissed.

2002  PCRLJ  1470   PESHAWAR-HIGH-COURT

FEROZ SHAH VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9–Bail, grant of—Persons allegedly involved in spreading narcotics in the society and tarnishing image of their country in comity of nations, were riot the kind of persons who were worthy

2002  PCRLJ  1468   PESHAWAR-HIGH-COURT

MUHAMMAD SHAFIQ VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9—Appreciation of evidence—Allegation against accused was that huge quantity of narcotic drugs was recovered from truck driven by him, but accused was not found in the truck and case against accused was registered on the basis of his driving licence recovered from the truck–No doubt huge quantity of narcotic substance had been recovered from the truck but because nobody was arrested at the time of stopping of truck and the only connecting evidence against accused was recovery of his driving licence from the truck, it was incumbent upon prosecution to have established that truck was actually entrusted to accused by some authorized officer describing date of entrustment and it should have also been proved that even on date of occurrence truck was not only possessed, but was also physically under the use of the accused–Prosecution witness had admitted in his cross-examination that he did not know as to how long truck remained with accused—No official witness had appeared to confirm entrustment of truck to the accused—Defence evidence rang reasonably true—Prosecution having failed to connect accused with the truck from which narcotics were allegedly recovered except the evidence that driving licence in the name of accused was found, conviction and sentence awarded to accused by Trial Court were set aside extending him benefit of doubt and accused was acquitted.

2002  PCRLJ  1429   PESHAWAR-HIGH-COURT

JAVID GUL VS THE STATE

—-Ss. 103 & 497(2)—Control of Narcotic Substances Act (XXV of 1997). Ss. 9 & 21—West Pakistan Arms Ordinance (XX of 1965), S.13–Bail, grant of—Further inquiry– -Nothing was on record to show that house wherefrom alleged recovery of contraband Ch

2002  PCRLJ  1402   PESHAWAR-HIGH-COURT

MAHMOOD KHAN VS THE STATE

Control of Narcotic Substances Act 1997 —-Ss. 9, 29, 35 & 36—Appreciation of evidence—Sending sample of narcotic substances for chemical analysis—Provisions of Ss.35 & 36 of Control of Narcotic Substances Act, 1997, did not specify any particular quantity of recovered substance to be sent as a sample for chemical analysis—Presumption under S.29 of Control of Narcotic Substances Act, 1997could be raised in such a case regarding allegation levelled against accused to be true in its entirety and it was for accused to rebut such presumption.

2002  PCRLJ  1386   PESHAWAR-HIGH-COURT

ABDULLAH SHAH VS THE STATE

—-Ss. 497(1) & 103—Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 25—West Pakistan Arms Ordinance (XX of 1965), S.13–Bail, grant of—Accused was directly nominated in F.I.R. for an offence which carried punishment falling under prohibito

2002  PCRLJ  1312   PESHAWAR-HIGH-COURT

MUSHTAQ VS THE STATE

—-Ss. 7/9—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4—Appreciation of evidence—Plea of accused from the very beginning was that he had no concern whatsoever with vehicle in question as an owner nor he knew from where contraband n

2002  PCRLJ  1305   PESHAWAR-HIGH-COURT

SARTAJ VS THE STATE

Control of Narcotic Substances Act 1997 —-Ss. 9, 25 & 34—Criminal Procedure Code (V of 1898), S.103–Appreciation of evidence—Report of Chemical Examiner had validly been received in evidence—Both prosecution witnesses had stated before the Court that parcel containing sample which was sent for test, was affixed with two seals, whereas report of Chemical Examiner had referred to one seal—Such discrepancy would not be material; firstly, for the reason that both prosecution witnesses in their examination-in-chief and cross-examination had accepted two seals and so was in recovery memo.; when there was preponderance of evidence both oral and documentary that two seals were fixed mere mentioning of one seal in the report of Chemical Examiner would not affect prosecution case; secondly, parcel when prepared contained number and date of F. I. R. and name of police station and same was recorded in report of Chemical Examiner so that case property of one case would not get mixed up with the other—Identity of parcel otherwise being established, mere mentioning of one seal by Chemical Examiner would not detract and affect testimony of two prosecution witnesses—Accused had failed to prove that he had been falsely involved in the case—Non-observance of provisions of S.103, Cr.P.C. i.e. non-association of public witnesses, had been done away with by S.25 of Control of Narcotic Substances Act, 1997—Necessity of association of public witness was to exclude possibility of false implication and the false plantation—Where there was no ill-will between police and accused and when quantity recovered was huge, no question would be of false implication or plantation–Contradiction regarding distance of police station or stopping of vehicle at police station, were statements which were made by prosecution witnesses from memory and memory of two persons regarding one fact could differ—Prosecution having successfully brought home charge against accused, conviction and sentence recorded against accused by Trial Court could not be interfered with.

2002  PCRLJ  976   PESHAWAR-HIGH-COURT

MUHAMMAD ALI VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9—Appreciation of evidence—Events had taken the normal course as on suspicion the bag of the accused was searched and after recovery of heroin from the bag the necessary steps were taken by arresting the accused, taking articles into possession and writing down a report to be incorporated in the F.I.R.—Such fact by itself did not amount to investigation of the case, rather the case was investigated by the Sub-Inspector duly authorized in this respect—Person taking the articles to the Laboratory was not to be necessarily produced in the Court as a witness unless it was shown that either the seal or the parcel had been tampered with or had been substituted and mere delay in sending the matter to the Laboratory did not make the prosecution case doubtful with regard to the authenticity of the report—Question about territorial jurisdiction or limits of the Laboratory was immaterial as to which Laboratory either in Punjab or in N.W.F.P. or any other Province had carried out the test, if otherwise it was competent to do so—Magistrate had categorically deposed in Court that he had destroyed the contraband articles in pursuance of Court’s order and his report in this behalf was not open to any objection—Contradictions in the prosecution evidence which might be termed as negligible inconsistencies by themselves were not sufficient to dislodge’the prosecution case—Two material witnesses were neither interested in the success of the case of prosecution, nor they had any enmity with the accused and their testimony could not be doubted—Non-production of the bag in the Court from which heroin was recovered although was a lacuna in the prosecution case, but it did not affect the case—Technicalities, procedural or otherwise, if any, could not be given serious thought if the case stood otherwise proved—Conviction and sentence of accused were upheld in circumstances.

2002  PCRLJ  971   PESHAWAR-HIGH-COURT

BARAT VS THE STATE

—-Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 9 25 & 51(1)—Bail—Huge quantity of “Charas” was recovered from the possession of accused—Report of the Chemical Examiner was in positive—Recovery witnesses had no ill-w

2002  PCRLJ  667   PESHAWAR-HIGH-COURT

GHARIB ULLAH VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(3)–Bail —Search and arrest of the accused by a Police Officer below the rank of Sub-Inspector under the Control of Narcotic Substances Act, 1997 was illegal and would entitle him to bai

2002  PCRLJ  666   PESHAWAR-HIGH-COURT

ABDUL HAMID VS THE STATE

—S. 516-A—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9, 74 & 32—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4—Custody of the vehicle—Record did not show that the vehicle in question was used in the commission o

2002  PCRLJ  562   PESHAWAR-HIGH-COURT

JUMMA KHAN VS THE STATE

—-S. 497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4—Control of Narcotic Substances Act (XXV of 1997), S.9(b) & (e)—Bail, grant of—Case of the accused fell between the line under cls.(b) & (c) of S.9, Control of Narcotic Substa

2002  PCRLJ  344   PESHAWAR-HIGH-COURT

SOHRAB VS THE STATE

Control of Narcotic Substances Act 1997 —-Ss. 9(c) & 25—Criminal Procedure Code (V of 1898), S.103–Appreciation of evidence—Sentence—Provisions of S.103, Cr.P.C. were not applicable to the case—Police officials deposing as prosecution witnesses had no ill-will or malice against the accused and their evidence could not be discarded merely on the basis of their being police employees—Narcotics could not be believed to have been planted on the accused by the police from their own source—“Charas” and heroin had been recovered from the accused immediately after his apprehension–Report of the Chemical Analyst about the said narcotics was positive–police Officer was not prohibited under the law to be a complainant if he was a witness to the commission of the offence and also to be an Investigating Officer if the accused thereby was not prejudiced in any way—Impugned judgment did not suffer from any illegality or material irregularity—Conviction of accused was upheld accordingly, but in view of the quantum of narcotics recovered from him his sentence of ten years’R.I. was reduced to six years’R.I.

2002  MLD  1982   PESHAWAR-HIGH-COURT

WAJID ALI SHAH VS THE STATE

Control of Narcotic Substances Act 1997 —-S.9—Appreciation of evidence -Both the senior officers of Anti Narcotic Force had fully supported the prosecution case who had no ill will or animosity against the accused to prompt them to falsely implicate, the accused and plant huge quantity of Charas and opium on them–Nothing fruitful had come out of the statements of the said witnesses in the lengthy and searching cross-examination to damage the prosecution story—Illicit narcotics had been recovered from the secret cavities of the Truck and the driver and the cleaner had a hand in the affair —Non production of the case property or its destruction certificate at the trial had not prejudiced the cause of the accused in any manner which at the most could be considered as an irregularity curable under the law–Recovery had been sufficiently proved and no suggestion had been made to the Investigating Officer regarding destruction certificate of the case property—Conviction and sentence of accused were upheld in circumstances.

2002  MLD  662   PESHAWAR-HIGH-COURT

TAHIR AHMAD VS THE STATE

—-Ss. 154 & 561-A—Control of Narcotic Substances Act (XXV of 1997), Ss. 7, 8, 9, 10 & 11—Registration of second F.I.R.—Powers under S.561-A, Cr.P.C.—No hard and fast rules existed under which the Police/Investigating Agencies could be prevented

2002  YLR  3800   LAHORE-HIGH-COURT-LAHORE

MAQSOOD KHAN alias ALAM KHAN VS THE STATE

—-Ss.6/9—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4–Appreciation of evidence—Statement of prosecution witness who was member of raiding party, had fully been supported by other member of raiding party—Both were subjected to len

2002  YLR  3774   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD AFZAL VS THE STATE

—-S.497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4—Control of Narcotic Substances Act (XXV of 1997), S.9 —Customs Act (IV of 1969), S.156—Bail, grant of–Accused was in jail for the last about four months—Even if it was ass

2002  YLR  3611   LAHORE-HIGH-COURT-LAHORE

TOOR GUL KHAN VS THE STATE

—-S.497—Control of Narcotic Substances Act (XXV of 1997), S. 9(b)—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4—Bail, grant of–Investigation by a police officer of the rank of D. S. P. had found the version of the accused to be

2002  YLR  3600   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SAEED VS THE STATE

—-S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail, grant of–Charas weighing 510 grams was recovered from the possession of accused—Accused had been found to be innocent during investigation—Accused was behind the bars for th

2002  YLR  3599   LAHORE-HIGH-COURT-LAHORE

MOMAN HUSSAIN KHAN VS THE STATE

—-S.497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4—Control of Narcotic Substance, Act (XXV of 1997), S.9– Bail, grant of—Charas as alleged in F.I.R., was recovered from, accused and his co accused—Charge had been framed and c

2002  YLR  3598   LAHORE-HIGH-COURT-LAHORE

ABDUL SATTAR VS THE STATE

—-S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 25 & 51–Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4—Bail, grant of—Accused was apprehended red-handed while in possession of Chards weighing 2-½ K.gs. –No gro

2002  YLR  3570   LAHORE-HIGH-COURT-LAHORE

Mst. SHAHIN VS THE STATE

—-S.9(c)—Appreciation of evidence–Recovery witnesses had made consistent statements on material points—Accused had been apprehended at the spot and it had been proved that they were traveling in the alleged car—Prosecution had not produced any ev

2002  YLR  2012   LAHORE-HIGH-COURT-LAHORE

STATE VS HAYATULLAH

—-S.9(c)—Criminal Procedure Code (V of 1898), S.439—Revision petition—Sentence, enhancement of—Six kilograms “Charas “and two rifles had been recovered from the possession of accused—Accused had made a confessional statement before the Trial C

2002  YLR  1743   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ISMAIL VS THE STATE

—-S. 9(c)—Appreciation of evidence—Plea of one of co-accused that he was a student and he simply took lift from other co-accused for having a visit to Islamabad, had found support from prosecution evidence itself–Said plea in fact was advanced by c

2002  YLR  941   LAHORE-HIGH-COURT-LAHORE

BASHARAT ALI VS THE STATE

—-S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Prohibition (Enforcement of Hadd) Order 4 of 1979), Arts. 3 & 4—Bail, grant of—No recovery was effected from the accused—Police found accused innocent who was only cab-driver and

2002  YLR  443   LAHORE-HIGH-COURT-LAHORE

ZAHEER AHMAD VS THE STATE

—-Arts. 3/4—Control of Norcotic Substances Act (XXV of 1997), S.9—Appreciation of evidence—Investigating Officer was fully competent to investigate the case by virtue of the powers conferred upon him under the Control of Narcotic Substances Act, 1

2002  YLR  284   LAHORE-HIGH-COURT-LAHORE

WAZIR AHMAD VS THE STATE

—S.9(b)—Constitution of Pakistan (1973), Arts. 37 & 10—Accused not represented by a Counsel in Trial Court—Case remanded–,Record did not suggest that the accused was ever afforded any opportunity by Trial Court to engage a counsel to represent hi

2002  YLR  191   LAHORE-HIGH-COURT-LAHORE

JAMSHAID HAIDER VS THE STATE

—-Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 25 & 51—Bail, grant of—Accused was named in the F.I.R. and the offence against the accused fell within the prohibitory clause of S. 497, Cr.P.C.—Report of the Chemical E

2002  PCRLJ  1588   LAHORE-HIGH-COURT-LAHORE

RAFI ULLAH KHAN VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9(b)—Appreciation of evidence—Only evidence collected by the police during investigation was the statements of two police constables, but their statements were contradictory and inconsistent on the material point both in examination-in-chief and cross-examination—Presence of said two witnesses at the spot at the relevant time had not inconsistent been explained by them and their statements had not made out a case against the accused for their conviction—Such statements of the witnesses could not be accepted—Accused persons seemed to have been involved falsely in the case by the police and the possibility of mala fides in lodging the case against them could not be ruled out–Prosecution having failed to prove case against the accused, charge conviction and sentence were set aside and they were acquitted of the charges levelled against them.

2002  PLD  200   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD HANIF VS THE STATE

Control of Narcotic Substances Act 1997 —-S. .9(c)—Appreciation of evidence—Witnesses of recovery had no motive for false implication of accused and they had made consistent statements on material points which were corroborated by other evidence available on record—Accused had been arrested at the place of recovery—Immediate registration of the F.I.R. had also supported the recovery from the accused and the recovered material was found to be opium by the Chemical Examiner—Recovery of 5-1/2 Kgs. of opium from the accused was established beyond any doubt—Although the Assistant Sub-Inspector of Police was not competent to investigate the case, yet it would not vitiate the decision on merits as the case otherwise stood proved against the accused–No prejudice had been caused to the accused by the arrest and recovery of opium by the Assistant .Sub-Inspector which had not resulted into any miscarriage of justice—Police witnesses were also competent witnesses who had no personal ulterior motive to falsely involve the accused in the commission of the offence—Conviction of accused was consequently upheld—Accused was the first offender and the narcotics recovered from him being less than 10 Kgs. his sentence of imprisonment for life being harsh was reduced to ten years’R.I. with reduction in sentence of tine.

2002  PCRLJ  746   LAHORE-HIGH-COURT-LAHORE

MST. ROBINA KAUSAR VS THE STATE

—-Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), S.9–Prohibition (Enforcement-of Hadd) Order (4 of 1979), Arts. 3/4–Bail, grant of—1500 grams of Charas was recovered at the instance of accused—Bail was sought on the grounds that

2002  PCRLJ  453   LAHORE-HIGH-COURT-LAHORE

NAZAR HUSSAIN VS THE STATE

—Ss. 497, 103, 59, 154 & 156(2)—Control of Norcotic Substances Act (XXV of 1997), Ss.9(b), 21, 25, 761 29 & 51—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4—Bail—Accused was allegedly apprehended red-handed by the police party

2002  PCRLJ  32   LAHORE-HIGH-COURT-LAHORE

MST. FATIMA VS THE STATE

Control of Narcotic Substances Act 1997 —–S. 9(c)—Appreciation of evidence—Chemical Examiner had refused to give his report on the first sample of the recovered opium and required a fresh parcel to be sent to him—No evidence was available on record to show as to who had prepared the second parcel on the basis of which a positive report had been secured from the Chemical Examiner—No conviction, therefore, could be based on the said report—No other evidence was available on record to connect the accused with the commission of the offence—Prosecution, in circumstances, had failed to bring home guilt to the accused beyond reasonable doubt and she was acquitted accordingly.

2002  MLD  1079   LAHORE-HIGH-COURT-LAHORE

SHAMSHAD HUSSAIN alias SHAMLA VS THE STATE

—-Arts. 3/4—Control of Narcotic Substances Act (XXV of 1997), S.9–Criminal Procedure Code (V of 1898), S.397—Appreciation of evidence—Running of sentences concurrently—Accused did not challenge his conviction, but had requested that as trial va

2002  PLD  157   LAHORE-HIGH-COURT-LAHORE

PERVAIZ AKHTAR VS STATION HOUSE OFFICER, POLICE STATION GOWALMANDI, LAHORE

Control of Narcotic Substances Act 1997 —-S. 9—Criminal. Procedure Code (V of 1898), Ss.54 & 156(2)–Constitution of Pakistan (1973), Art 199—Constitutional petition—Quashing of F.I.R.—Police on receipt of a credible information had apprehended the accused while in possession of a huge quantity of “Charas” weighing 19000 Kgs.—No mala fides had been alleged against the police for false involvement of accused in the offence—Technicalities could not stand in the way of finalization of the investigation or the disposal of cases—High Court, under its Constitutional jurisdiction, could pass the order to help the administration of justice and not in aid of injustice—Police Officer was duty bound under S.54, Cr.P.C. to arrest the accused without any warrant of arrest on a credible information against him for the commission of the cognizable offence who had been rightly arrested—Police Officer of C.I.A. Staff could not register the case which could only be registered at a police station having the jurisdiction where the offence had been committed–Proceedings taken by the police officer of C.I.A. Staff could not be challenged as per S.156(2), Cr.P.C. at any stage on the ground that he was not empowered to investigate—Technicalities could not stand in the way of finalisation of investigation or disposal of cases —F.I.R. could not be quashed and the investigation stayed on such score alone when, no prejudice was shown to have been caused to the accused resulting in miscarriage of justice—Constitutional petition was dismissed accordingly.

2002  PLD  453   KARACHI-HIGH-COURT-SINDH

ABDUL RASHEED VS THE STATE

—Ss. 497/498—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9, 46(2)(i), 51 & 74—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4—Notification No.F.21(5)/2000-A.IV(D), dated 16-10-2000– Notification No.F.21(5)/2000-AIV(D)

2002  YLR  1773   KARACHI-HIGH-COURT-SINDH

ABDUL SATTAR VS THE STATE

—-S.497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of–Accused had been instrumental in obtaining the passport of the absconding co-accused and arranging the air ticket in collusion with another—Statement of the prosecuti

2002  YLR  613   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ZAHIR alias AKHTAR VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51(1)—Bail, grant of—Bail was sought on ground that two co-accused had been let off by Police and narcotic was recovered from joint possession of the accused—Accused was facing

2002  YLR  71   KARACHI-HIGH-COURT-SINDH

SARFRAZ BUTT VS THE STATE

—-S. 9(b)—Criminal Procedure Code (V of 1898), 5.561-A—Quashing of proceedings–Pending proceedings against accused before Trial Court, he moved higher Authorities of police for fresh inquiry in his case as according to him no narcotic substance was

2002  PCRLJ  1670   KARACHI-HIGH-COURT-SINDH

HILAM MUTEMA VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9(cc)—Appreciation of evidence—Plea of guilty—Eleven capsules containing 10 grams of heroin each were excreted from body of accused by the time F.I. R. was lodged, but no Mashirnama of seizure thereof was prepared— Subsequent addition was of 35 capsules containing 18 grams of heroine each—Absence of Mashirnama of seizure of capsules containing heroin was a serious flaw in prosecution case —F.I.R showed that each capsule allegedly recovered was containing 10 grams of heroin while subsequently recovered capsules were alleged to have contained 18 grams of heroin each—Prosecution could not explain such discrepancy in the weigIht—Accused, a Kenyan National was continuously in custody and was without any legal aid, therefore, there was every possibility of his receiving advice from jail inmates to plead guilty—Trial Court, no doubt, could contact tin accused on plea of guilty, but when a person was without Regal . aid, then more onerous responsibility was laid on the shoulder of the Court to apply its mind to all the circumstances of case–Trial Court had framed charge in a stereotyped and mechanical manner as pro formma charge had been inserted in the file with filling of the blanks—Accused was entitled to benefit’of doubt as prosecution case was not free from serious doubts and lacuna, to which Trial Court hack not applied its mind—Accused was acquitted in circumstances.

2002  PCRLJ  1523   KARACHI-HIGH-COURT-SINDH

HAQ NAWAZ AKHTAR VS THE STATE

—-S. 497(2)—National Accountability Ordinance (XVIII of 1999), Ss.9 & 18(g)—Bail, grant of—Further inquiry—Prosecution was unable to place any material before Court to make out a prima facie case of indulgence in corruption or corrupt practice b

2002  PCRLJ  1086   KARACHI-HIGH-COURT-SINDH

IMDAD ALI JUNEJO VS THE STATE

Control of Narcotic Substances Act 1997 —-Ss. 9 & 21—Criminal Procedure Code (V of 1898), S.561-A–Quashing of proceedings—Section 21 of the Control of Narcotic Substances Act, 1997, had riot been strictly followed by the police in searching and arresting the accused and the same had been violated–Where the police party under a routine patrolling came across a suspect whom they wanted to check and if in strict adherence to the said S.21 the person of the required rank was not available, then the suspect perhaps might be able to run away or escape—Where, however, in the F.I.R. it is stated clearly .hat spy information was received and police was ware in advance as to the exact location of the accused, then the visions of S.21 of the aforesaid Act should have been followed—Spy information was available in advance to the police in the case but they did not follow the provisions of S.21 of the Control of Narcotic Substances Act, 1997—Proceedings pending against the accused in the Trial Court were quashed in circumstances.

2002  PCRLJ  186   KARACHI-HIGH-COURT-SINDH

ANWAR ALI  VS THE STATE

—-S. 497—Control of, Narcotic Substances Act (XXV of 1997), Ss.6, 7, 9, 12, 14, 15 & 51—Bail, grant of—Bail had been sought on ground of statutory delay—Accused were behind the bars for more than two years—Delay occurred due to inordinate dela

2002  MLD  1422   KARACHI-HIGH-COURT-SINDH

ILTAF KHAN VS THE STATE

—-S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9–Juvenile Justice System Ordinance (XXII of 2000); S.10(7)(a)–Sindh Children Act (XII of 1955), Ss. 10/64/68—Bail, grant of—Accused at, the time of commission of offence was hardly

2002  MLD  1416   KARACHI-HIGH-COURT-SINDH

IMRAN AMIN VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XVII of 1997), Ss.6/9—Bail, grant of—Accused was in 33rd month of his continuous jail custody and no prosecution witness had been examined—Accused was undertrial prisoner and charge had yet to be prov

2002  MLD  1293   KARACHI-HIGH-COURT-SINDH

BUDHO MALGHANI VS THE STATE

Control of Narcotic Substances Act 1997 –S.9(c)–Appreciation of evidence—Police officials as recovery witnesses–Contradiction in evidence of recovery witness—Accused had criminal record and one of the cousin of, the accused had made complaint against the Station House Officer, therefore, the accused was – not a stranger to the Station House Officer at the time when he was arrested–F.I.R. lodged and recorded by the Station House Officer was in the manner as if the accused was not known to him—Effect—Such facts and admissions might be a base for inference that the defence version was not baseless—In the present case there were contradictions between the statements of both the prosecution witnesses regarding material facts such contradictions and facts suggested a probability that the case was prepared at Police Station—Where prosecution evidence was too defective and inadequate for conviction, the accused was entitled to acquittal—Conviction and sentence awarded by the Trial Court were set aside—Accused was acquitted in circumstances.

2002  MLD  1123   KARACHI-HIGH-COURT-SINDH

MUHAMMAD SALEEM VS THE STATE

—-S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss..6/9(b)—Bail, grant of—Offence against accused was nor punishable with more than 7 years —Mashirs of alleged recovery of Charas were members of same raiding party —Factum of enqu

2002  MLD  253   KARACHI-HIGH-COURT-SINDH

AZIZUL HAQ VS THE STATE

Control of Narcotic Substances Act 1997 —-S.9(c)—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4—Appreciation of evidence—Independent public Mashir had not supported the prosecution case and he was declared hostile–Nothing fruitful had come out from the cross7examination of such witness—Second Mashir who was Excise Constable and subordinate to the complainant had admitted that he saw Charas at the Excise Police Station for the first time whereas at the place of occurrence he saw only the bag—Said witness during the cross-examination was not shown the case property nor same was produced through him—Said Mashir was recalled and re-examined, after four months when the case property was formally shown to him in Court—Said Mashir was made to act as Mashir in several cases—Such, a subordinate whose evidence suffered from such omission and commission could not be relied upon—Two Excise Inspectors who had signed as witnesses the Mashirnma of recovery of Charas and arrest of the accused from the place of occurrence, were not examined—Non-examination of the Inspectors particularly in view of the evidence of the Mashir would adversely affect the prosecution case and inference could be easily drawn that even if they were examined, they would not have supported the prosecution—Prosecution evidence was not above board and fit for implicit reliance —Conviction and sentences’ awarded to the accused by the Trial Court were set aside and they were acquitted.

2001  SCMR  1083   SUPREME-COURT

THE STATE VS NASIM AMIN BUTT

Control of Narcotic Substances Act 1997 —-Ss. 6, 7, 8, 9(c), 14 & 15—Customs Act (IV of 1969), S. 156(1)(8)—Constitution of Pakistan (1973), Arts. 185(3) & 13—Narcotics, smuggling of—Trial of accused persons under two different laws—Leave to appeal was granted by Supreme Court to consider; whether the offences for which the accused persons were being tried under Ss.6, 7, 8, 9(c), 14 & 15 of Control of Narcotic Substances Act, 1997, were the same for which they had earlier been tried under 5.156(1)(8) of Customs Act; 1969, as. such, was violative of Art. 13 of the Constitution.

2001  SCMR  36   SUPREME-COURT

FIDA JAN VS THE STATE

Control of Narcotic Substances Act 1997 —S. 9(c)—Constitution of Pakistan (1973), Art. 185(3)—Recovery of 26 kilograms of Charas—Raid by C.I.A. Authorities—Contention of accused was that place of recovery was not under the exclusive control of the accused and C.I.A. Authorities had no jurisdiction to conduct raid in his house for the purpose of recovery of narcotics—Validity—Recovery of Charas was effected from the residential room of the accused—Accused during trial failed to substantiate that the recovered articles; were not in his exclusive possession, therefore, merely raising plea that some other persons also occupied the house was not sufficient to exonerate him from the charge–C.I.A. Authorities had not proceeded with the matter after effecting recovery of narcotics—Trial Court had rightly convicted the accused and the appeal was dismissed by the High Court—Leave to appeal was refused.

2001  SCMR  14   SUPREME-COURT

THE STATE VS ABDUL QAYUM

Control of Narcotic Substances Act 1997 —-S.497(5)—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8, 9, 14 & 15—Bail, cancellation of—Failure of prosecution to show any direct or indirect piece of evidence connecting accused with the crime—_ Reliance was placed on the statements of co-accused recorded by police during investigation—Nothing incriminating was found against the accused—Statements of co-accused could not be relied upon for the purpose of cancellation of bail.

2001  PLD  5   QUETTA-HIGH-COURT-BALOCHISTAN

DOST MUHAMMAD VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9(c)–Criminal Procedure Code (V of 1898), S. 103—Appreciation of evidence—Provisions of S.103, Cr.P.C. had no application to narcotic cases—Recovery of “Charas” from his possession had not been denied by accused in his statement recorded under S.340(2), Cr.P.C.—Planting a huge quantity of “Charas” inside the house by the police was not possible—Police officials who had no ill-will against the accused were competent witnesses and their testimony could not be discarded only for the reason that they belonged to Police Department—Accused had been changing his defence version which could not be relied upon—Material recovered from the possession of accused was found to be “Charas” on Chemical analysis—Conviction and sentence of accused were upheld in circumstances

2001  PLD  1   QUETTA-HIGH-COURT-BALOCHISTAN

MST. AZIMA AND ANOTHER VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9(c)—Criminal Procedure Code (V of 1898), S. 342—Provisions of S.342, Cr.P.C. not strictly complied with—Case remanded—Accused had not been examined by Trial Court in accordance with the provisions of S.342, Cr.P.C.—Certificates appended to the statements of accused were not in the handwriting of the Presiding Officer who appeared to have put his signatures at four places without recording the statements in accordance with law—Such defect in recording the statements of accused under S.342, Cr.P.C. was not an irregularity but an illegality which was not curable– Miscarriage of justice having been occasioned in the case, convictions and sentences of accused were set aside and the case was remanded to Trial Court for retrial from the stage of recording statements of accused under 5.342, Cr.P.C. and writing a proper judgment in accordance with law.

2001  YLR  2039   PESHAWAR-HIGH-COURT

IJAZ KHAN VS STATE

Control of Narcotic Substances Act 1997 —-S.9(c)—Appreciation of evidence–Nothing was available on record to indicate that the accused had a hand in the smuggling or transportation of heroin and that he had the knowledge that the bag recovered from his car contained heroin—Possibility of the accused having offered a lift to the co-accused without knowing about the real nature of the stuff contained in his bag could not be excluded—Mere fact that the accused was driving the car in question from which the contraband had been recovered lying under the feet of co-accused, by itself, was not sufficient to convict him with the guilt–Car in question hired by the accused had not been confiscated to the State and the same had been discharged of its liabilities–Accused was acquitted on benefit of doubt in circumstances.

2001  PCRLJ  1756   PESHAWAR-HIGH-COURT

NOOR JEHAN  VS KHALID NADIM KHAN

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.7/9–Bail—No direct or indirect evidence was available to connect the accused with the commission of the offence—Accused was neither arrested from the spot, nor any contraband was recov

2001  PCRLJ  1401   PESHAWAR-HIGH-COURT

KHAWAJ MUHAMMAD  VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9(c)—Appreciation of evidence—Case property i.e., opium recovered from the accused was not produced in the Trial Court—Burden was on the prosecution to positively establish on the destruction, of the case property which was not discharged by the testimony of two prosecution witnesses–F.I.R. regarding the incident in which the case property was allegedly destroyed had not been placed on record—No evidence was led by the prosecution to show that the case property was destroyed in the fire—Since the recovery of the opium itself constituted the offence under the law, its non-production in the Court was fatal to the prosecution case—Report of the Chemical Examiner was not sufficient to establish the prosecution case–Accused had already spent more than three and a half years in prison–Accused was acquitted in circumstances.

2001  MLD  1922   PESHAWAR-HIGH-COURT

FAZAL-UR-REHMAN  VS THE STATE

Control of Narcotic Substances Act 1997 —-Ss. 9 & 25—Criminal Procedure Code (V of 1898), S.103—Recovery— Contention that mandatory provisions of. S.103, Cr.P.C. had not been complied with and no independent witness had been associated with the recovery which had made the transaction doubtful, had no force, as recovery had been made in terms of S. 25 of Control of Narcotic Substances Act, 1997.

2001  MLD  1731   PESHAWAR-HIGH-COURT

FIDA MUHAMMAD  VS THE STATE

Control of Narcotic Substances Act 1997 —-Ss. 9, 76, 74 & 73—Prohibition (Enforcement of Hadd) Order (4 of 1979), Preamble; Ss. 3 & 4—Preamble of Prohibition (Enforcement of Hadd) Order, 1979 and that of Control of Narcotic Substances Act, 1997 would clearly show that their promulgation and enforcement was for different objects and achievements—Notwithstanding provisions of S.76 read with S.74 of the Control of Narcotic Substances Act, 1997, the Prohibition (Enforcement of Hadd) Order, 1997 which was not repealed, was still holding the field—Provisions of S.73 of Control of Narcotic Substances Act,1997 had provided that nothing contained in the said Act would affect the validity of any law for the time being in force which had provided punishment not imposed by the said Act—Principle of overriding effect later statute was to be applied where inconsistency was found in the law already enforced and the later statute. 2000 PCr.LJ 1222; 1999 PCr.LJ 63 and Rasool Bakhsh and others v. State PLD 1998 SC 177 ref.

2001  MLD  142   PESHAWAR-HIGH-COURT

ZAFAR  VS THE STATE

—-S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6/7/8/9— Bail—Recovery of heroin from the accused had been witnessed by the officials of Anti-Narcotic Force who had supported the same in their statements made under S.161, Cr.P.C.—La

2001  PLD  152   PESHAWAR-HIGH-COURT

NASRULLAH VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8 & 9—Bail, grant of—Record showed the recovery of seven Kgs. of Charas from the possession of the accused which could not be convincingly disputed—Nonetheless, in view of the v

2001  PLD  463   LAHORE-HIGH-COURT-LAHORE

ABDUL RAOOF VS THE STATE

—-S. 540—Control of Narcotic Substances Act (XXV of 1997), S.9(c)–Qanun-e-Shahadat (10 of 1984), Arts.132 & 133—Re-summoning of prosecution witnesses for cross-examination—Accused, after examination of prosecution witnesses, could not get them cr

2001  YLR  3040   LAHORE-HIGH-COURT-LAHORE

MUAZZAM KHAN VS STATE

Control of Narcotic Substances Act 1997 —-S.497—Control of Narcotic Substances Act (XXV of 1997), S. 9(b)—Bail—Persons allegedly involved in spreading narcotics in the society are not entitled to any leniency or sympathy and do not deserve to be released on bail unless reasonable grounds existed to believe that they were not guilty of such offence or sufficient grounds were available warranting further inquiry into their guilt.

2001  YLR  2324   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD YOUSAF VS STATE

—-S.497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.314 — Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail, grant of—Accused was prosecution witness in a case of illegal gratification earlier filed by a woman against P

2001  YLR  19   LAHORE-HIGH-COURT-LAHORE

KHIZAR HAYAT VS STATE

—Ss. 540 & 439—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4–Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Qanun-e-Shahadat .(10 of 1984), Art. 133—Recalling of prosecution witnesses for cross-examination—Prosecution

2001  PCRLJ  1296   LAHORE-HIGH-COURT-LAHORE

SHAMAN SHAIKH  VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)–Bail—Accused was caught red-handed at the spot and two kilograms of Charas was recovered from her bag—Accused gave birth to a child who was with her in jail—Present trend accordi

2001  PCRLJ  1160   LAHORE-HIGH-COURT-LAHORE

MUJAHID  VS THE STATE

—-S. 497(1), first proviso—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51—Bail—Bail was sought essentially on the ground of infirmity and sickness of accused as according to the report of a Medical Board comprising Experts of Insti

2001  PCRLJ  951   LAHORE-HIGH-COURT-LAHORE

FAYYAZ HUSSAIN  VS THE STATE

Control of Narcotic Substances Act 1997 —-Ss. 9(c), 34 & 35—Criminal Procedure Code (V of 1898), Ss.540 & 439—Summoning of Chemical Examiner etc.—All Narcotics Testing Laboratories set up by the Provincial Governments had been treated to be Federal Narcotics Testing Laboratories for the purposes of the Control of Narcotic Substances Act, 1997 by means of a Government Notification–Report of the Chemical Examiner submitted in the case would, therefore, be considered to be the report of a Notified Laboratory as contemplated under S.34 of the said Act and similarly the Chemical Examiner and the Assistant Chemical Examiner appointed therein would be considered to be Government Analyst as stipulated by S.35 of the Act—Matter regarding admissibility of the report of the Chemical Examiner had been left open by ‘the Sessions Court while passing the impugned order—No need of summoning the Chemical, Examiner or Assistant Chemical Examiner existed in circumstances.

2001  PCRLJ  248   LAHORE-HIGH-COURT-LAHORE

SIKANDAR HAYAT KHAN  VS STATE

Control of Narcotic Substances Act 1997 —-S. 9—Customs Act (IV of 1969), S.156(1)—General Clauses Act (X of 1897), S.26—-Criminal Procedure Code (V of 1898), S.403—Constitution of Pakistan (1973), Arts. 199 & 13—Constitutional petition—Quashing of proceedings—Two trials for the same offence—Petitioner was charged for smuggling of narcotics and was tried by Special Judge Customs—Trial before Special Judge under the Control of Narcotic Substances Act, 1997, was initiated subsequently on the same occurrence—Second trial was barred in view of Art. 13 of the Constitution as also under S.26 of General Clauses Act, 1897, and 5.403, Cr.P.C.—Proceedings pending before the Special Judge Court Narcotics were quashed in circumstances.

2001  PCRLJ  160   LAHORE-HIGH-COURT-LAHORE

LATIF AHMAD  VS JUDICIAL MAGISTRATE, SHUJABAD, DISTRICT MULTAN

—-Ss. 157, 158, 159 & 167—Prohibition (Enforcement of Hadd) Order (4 of .1979), Art. 3/4—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Constitution of Pakistan (1973), Art. 199—Discharge of accused in criminal case—Discharge of an a

2001  MLD  1983   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ILYAS  VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9—Sentence—Control of Narcotic Substances Act, 1997, does not envisage any distinction in the matter of sentence between psychotropic substances of different types.

2001  MLD  1937   LAHORE-HIGH-COURT-LAHORE

MAQSOOD AHMAD  VS THE STATE

—-S. 497(1) & (2)—Control of Narcotic Substances Act (XXV of 1997), -Ss.9(b) & 51—Bail, grant of—Bail was sought on the ground that the accused was a first offender and that his case was not hit by the prohibition contained either in S.497(1), Cr.

2001  MLD  1251   LAHORE-HIGH-COURT-LAHORE

MUZAFFAR ALI  VS THE STATE

—-S. 426—Control of Narcotic Substances Act (XXV of 1997), S.9(c)–Suspension of sentence—Suspension of sentence, pending appeal, against conviction, had been sought on the ground that nothing was recovered from the accused during the investigation

2001  PLD  369   KARACHI-HIGH-COURT-SINDH

ALI HASSAN VS THE STATE

—-Ss. 25 & 9(b)—Criminal Procedure Code (V of 1898), S.103—Search and arrest, mode of—Exemption of applicability of S.103, Cr.P.C.–Effect—Exception of applicability of S.103, Cr.P.C. in cases under the Control of Narcotic Substances Act, 1997 a

2001  PLD  283   KARACHI-HIGH-COURT-SINDH

HUSSAIN ABDULLAH SALUM VS THE STATE

—-Ss. 7, 8, 9, 72 & 74—Customs’ Act (IV of 1969), S. 156—Trial of offences—All acts or omissions which may constitute offences under the Control of Narcotic Substances Act, 1997 as well as the Customs Act, 1969 or any other law, must be treated as

2001  YLR  3284   KARACHI-HIGH-COURT-SINDH

AMIR ALAM VS STATE

—-S.497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Bail, grant of–Case of further inquiry—Accused merely a bus driver and recovery effected from eight passengers out of total thirty—No incriminating evidence was available again

2001  YLR  3137   KARACHI-HIGH-COURT-SINDH

STATE VS NAEEM

—-S. 526(a) (ii)—Control of Narcotic Substances Act (XXV of 1997), S.9–Application for transfer of case—Allegation that Judge was always in hurry and had reflected an element of favour to the accused was unfounded—Transfer application appeared to

2001  YLR  3097   KARACHI-HIGH-COURT-SINDH

NOOR MUHAMMAD KHAN VS STATE

Control of Narcotic Substances Act 1997 —-S.9(c)– Appreciation of evidence—Charge framed in the case was defective being inconsistent with the claim of the prosecution with regard to the recovery of opium and’Charas’ from the accused which was not even-put to the accused in their statements recorded under S.342, Cr.P.C.—Trial Court had framed the charge and convicted the accused under the control of Narcotic Substances Ordinance, 1995 which was not in force at the relevant time—Prosecution was not certain about the recovery of narcotics from the accused —F.IR. had been lodged after spot investigation—Prosecution evidence was contradictory—Trial Court had not taken into consideration cross examination of two prosecution witnesses and violated the mandatory provisions of S.367, Cr. P. C. —Recovery memo. had been interpolated—No reason had been furnished by the prosecution for giving up the private recovery witness and not examining him at the trial—Investigation conducted in the case was dishonest—Benefit of doubt was given to the accused in circumstances and they were acquitted accordingly.

2001  YLR  3078   KARACHI-HIGH-COURT-SINDH

DRIS VS STATE

Control of Narcotic Substances Act 1997 —-S.9(b)—Appreciation of evidence—Case property had been retained at the Police Station and sent to the Chemical Examiner after an unexplained inordinate delay of six months—No independent Mashirs were associated by the police with the recovery proceedings—Police party had not even sent any fake customer to the pointed place after receiving information about the sale of narcotics by the accused—Case property was neither produced in the Court nor shown to the accused while recording his statement under S. 342, Cr. P. C. —Non production of the relevant entry in the Daily Diary about the departure of the police party in the Court had cut at the root of the prosecution case–Accused was acquitted on benefit of doubt in circumstances.

2001  YLR  2958   KARACHI-HIGH-COURT-SINDH

WAHID BUX VS STATE

Control of Narcotic Substances Act 1997 —-S. 9(b)—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4–Appreciation of evidence—Trial of accused under two different statutes viz. Prohibition (Enforcement of Hadd) Order, 1979 and Control of Narcotic Substances Act, 1997 and uncertainty of the prosecution about the commission of the offence by him, had vitiated the entire trial, benefit of which was to go to the accused—No independent person was associated with the recovery proceedings—Delay of nine days in sending the recovered “Charas” to the Chemical Examiner was not explained by the prosecution—Case property was not produced in the Court and was not shown to the accused at the time of recording his statement under S. 342, Cr. P. C. —Accused was acquitted on benefit of doubt in circumstances.

2001  YLR  1493   KARACHI-HIGH-COURT-SINDH

AIJAZ ALI VS STATE

Control of Narcotic Substances Act 1997 —-S.9(b)—Appreciation of evidence—One month’s delay in sending the sample of the allegedly recovered “Charas” to the Chemical Examiner had not been explained by the prosecution—Entry in the Daily Diary whereby the police party had left the Police Station and gone to the platform of the Railway Station had not been produced by the prosecution before the Trial Court, which had vitiated the entire trial— “Charas” recovered from the accused had not been sealed at the place of recovery but the same had been sealed at the Police Station which was an illegality giving rise to an adverse inference against the : prosecution—Accused was acquitted on benefit of doubt in circumstances.

2001  YLR  1249   KARACHI-HIGH-COURT-SINDH

MUNIR AHMED VS STATE

Control of Narcotic Substances Act 1997 —-S.9(c)—Criminal Procedure Code (V of 1898), Ss. 364, 533 & 537—Appreciation of evidence—Prosecution case that the Chemical Examiner had changed the sample of “Charas ” and the cloth containing the same which yeas sent to him for analysis, had remained unchallenged—Trial Court had rightly sent the remaining quantity of “Charas ” lying with it in sealed condition to another Chemical Examiner and had rightly relied upon. his report for awarding conviction and sentence to the accused which were not open to any exception–Charge framed by the Trial Court was in accordance with the prosecution case and required no amendment after the receipt of the first Chemical Examiner’s Report which was not genuine—Subsequently the prosecution version stood established—Non-recording of certificate under S.364(2), Cr.P.C. by the Trial Court in its own hand was a mere irregularity and since no prejudice to the accused had been established or even alleged and no objection to this effect had been taken at the initial stage when the statement of the accused was recorded in the presence of a -senior counsel; the irregularity was curable under S.533, Cr. P. C. read with S.537, Cr. P. C. –Conviction and sentence of accused were upheld in circumstances. (pp. 1254, 1255, 1256, 12681 A, B, C, F & G

2001  YLR  1123   KARACHI-HIGH-COURT-SINDH

LRSHAD AHMED MALIK VS STATE

Control of Narcotic Substances Act 1997 —-S.9(b)—Appreciation of evidence–Mashirs of recovery of heroin from the accused were policemen and no effort was made by the police party to associate two respectable Mashirs with the recovery proceedings on receiving secret information–No fake customer had been sent by the police to, the pointed place in order to ascertain whether the accused was selling heroin or not, which was illegal–Prosecution had not proved on record the relevant entry in the police diary regarding departure of the raiding party from the police station for conducting raid on the accused which had cut at the root of the prosecution case—F.I.R. was in conflict with the Chemical Examiner’s Report with regard to the quantity of the heroin—Prosecution case was replete with illegalities and material contradictions—Accused was extended the benefit of doubt and acquitted in circumstances.

2001  YLR  1081   KARACHI-HIGH-COURT-SINDH

DUR MUHAMMAD VS STATE

—-Ss. 498, 499 & 502—Control of Narcotic Substances Act (XXV of 1997), S.9(b)– Grant of protective bail—Death of the accused—Return of surety documents– Accused who was granted protective bail for a limited period having died the documents furni

2001  YLR  948   KARACHI-HIGH-COURT-SINDH

RAHIM BUX VS STATE

Control of Narcotic Substances Act 1997 —-S. 9(c)—Criminal Procedure Code (V of 1898), Ss. 156, 166 & 364—Appreciation of evidence —F.I.R. was registered by C.I.A. personnel on behalf of the State —C.I.A. personnel arrested the accused, prepared the Mashirnama of arrest and recovery of narcotic and thereafter, accused were handed over to the concerned Police Station–Material available on record did not show that C.I.A. personnel were made incharge by arty Competent Authority to take cognizance of the case and to investigate the same as required under S.156, Cr. P. C.—Cognizance of case, in circumstances, had been, taken by a wrong and unauthorised person—Station Diary on which the prosecution had relied had not been produced by the prosecution before the Trial Court as the prosecution case depended on the production of said diary, non production of the same had vitiated the trial benefit of which would go to the accused–Evidence of defence witnesses, had not been discussed by the Trial Court–Statement of the accused recorded under S. 342, Cr. P. C. was not signed by the accused nor certificate had been written in the handwriting of the Presiding Officer which was flagrant violation of the mandatory provisions of 5.364, Cr. P.C. —Conviction and sentence awarded to the accused by the Trial Court were set aside giving him benefit of doubt and he was ordered to be released.

2001  YLR  912   KARACHI-HIGH-COURT-SINDH

SHAMSHAD KHAN VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 4, 9, 12 & 13—Bail, grant of—Bail was refused to the accused by the Trial Court for the only reason of his involvement in two other identical cases and being a habitual offender—Accu

2001  YLR  743   KARACHI-HIGH-COURT-SINDH

IQBAL VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6/9—Bail, grant of–Considerable delay was caused in holding trial by the Trial Court without any fault of the accused—High Court directed the Trial Court to examine at least the compl

2001  YLR  654   KARACHI-HIGH-COURT-SINDH

MUHAMMAD CHATTAL VS STATE

—-S. 497—Control of Narcotic Substances Act (JXV of 1997); Ss. 6/9—Bail, grant of–Recovery had been effected from the place of Vardat, but not from the possession of the accused—Out of thirty kilograms Charas only one kilogram had been sent to th

2001  YLR  611   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ANWAR VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8, 9 & 14—Bail, grant of—Accused remained continuously in custody for about two and half years and during that period only the charge had been framed, but not a single witness wa

2001  PCRLJ  2027   KARACHI-HIGH-COURT-SINDH

ABDUL GHANI  VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9(c)—Appreciation of evidence—Sentence—Sentence of imprisonment for life or death in cases involving narcotics with quantity of less than 10 Kgs. would be too harsh and highly inappropriate and might not appear to be in consonance with the provisions of S.9(c) of the Control of Narcotic Substances Act, 1997—Quantity of 3 Kgs. of heroin and 4 Kgs. of opium involved in the cases was much less than 10 Kgs.—Rigid mathematical calculation keeping the terms of imprisonment vis-a-vis the quantity of narcotics though might not be warranted, yet reasonable proportion of sentence could be well within the spirit of the said provisions of the Act— Sentence of imprisonment for life awarded to each accused was, therefore, reduced to 10 years’ R.I. with substantial reduction in fine.

2001  PCRLJ  1963   KARACHI-HIGH-COURT-SINDH

WAZIRAN DETHO  VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9(c)—Appreciation of evidence—Huge quantity of 11-1/2 Kgs. of opium and 12-1/2.Kgs. of Charas had been recovered from the possession of the two accused ladies which could not be foisted upon them—Prosecution witnesses were not shown to have any animosity against the accused for their false implication in the case—Provisions of S.103, Cr.P.C. were not applicable, to the search conducted by the police—Despatch of only 500 grams of narcotic out of the whole quantity to the Chemical Expert could not be shown to be illegal—Non-production of Entry in the Roznamcha in the Court whereby the police party left the police station for conducting raid was only a technicality which had no bearing against the prosecution in a case of heinous offence of narcotics—Convictions and sentences of accused were upheld in circumstances.

2001  PCRLJ  1865   KARACHI-HIGH-COURT-SINDH

HAKIM ALI  VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9(b)—Appreciation of evidence—Prosecution in proof of its case had produced two witnesses in addition to the complainant/Investigating Officer and they all were police officials—No independent witness was examined in the case despite occurrence was alleged, to have taken place at a public place during the day time—Material contradictions were found in the evidence of prosecution witnesses—Prosecution case was doubtful and the accused was entitled to the benefit of doubt—Conviction and sentence awarded to the accused by the Trial Court, was set aside and the accused was acquitted, in circumstances.

2001  PCRLJ  1792   KARACHI-HIGH-COURT-SINDH

1. IQBAL VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss-6, 9, 16 & 51—Drugs Act (XXXI of 1976), S.2 (g)—Bail—Phenobarbital powder weighing 20 kilograms recovered from the accused was psychotropic substance and thus, an offence under S.6 of

2001  PCRLJ  1786   KARACHI-HIGH-COURT-SINDH

SHAHNAWAZ  VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9(c)—Criminal Procedure Code (V of 1898), Ss.342 & 537–Appeciation of evidence—Remand of case —Challan against the accused had been submitted under Arts.3/4 of Prohibition (Enforcement of Hadd) Order, 1979 whereas the charge had been framed under Control of Narcotic Substances Act, 1997—Accused being pauper was provided a junior Advocate to defend him—Statement of the accused under S.342, Cr.P.C. did not bear the signature of the accused which was the violation of S.342(2), Cr.P.C. which is an illegality not curable under S.537, Cr.P.C. and said statement was also not taken into consideration by the Trial Court while delivering the judgment—Case was remanded with the consent of the parties to the Trial Court to decide the same afresh after framing fresh charge and holding a fresh trial giving full opportunities of hearing to the parties.

2001  PCRLJ  1762   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ACHAR MACHI  VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9(b)—Appreciation of evidence—Whole case of prosecution depended on Roznamcha entry showing time and date when the complainant alongwith other police officials set out for patrolling, but said entry had not been produced by the prosecution before the Trial Court—Presumption could be that police party had not left the concerned police station for patrolling and the accused had been victimized by the police in order to keep their pockets up—Property allegedly recovered from the possession of the accused had been sent after delay of seven months and said delay remained unexplained–No signature was found on the statement under S.342, Cr.P.C. of the accused on the first page of said statement which was a flagrant violation of the mandatory provisions of S.342(2), Cr.P.C.—Prosecution having miserably failed to make out the case against the accused, judgment convicting and sentencing him passed by the Trial Court was set aside and he was ordered to be released forthwith.

2001  PCRLJ  1736   KARACHI-HIGH-COURT-SINDH

ASHIQUE HUSSAIN LEGHARI  VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9(b)—Appreciation of evidence—F.I.R. had shown that the complainant, the official of Excise Department, alongwith his subordinate staff vide Roznamcha Entry No.1 had left their office on receipt of spy information and proceeded towards the house of the accused —Roznamcha containing the said entry had not been produced before the Trial Court–Non-production of such document had cut the root of prosecution case—Out of 435 grams of narcotics allegedly recovered from the accused, 225 grams had been separated by the complainant and despatched the same to the expert for analysis, but no explanation was given with regard to the rest of the quantity and what happened to the same was not clear from the record–Benefit of doubt, in circumstances, would go to the accused—Complainant had admitted that F.I.R. was written on his direction by Excise Inspector and the statements under S.161, Cr.P.C. had also been written by the same Mashir, but the prosecution had failed to get the said Mashir examined and no mason had been assigned by the prosecution as to why he had been given up—Prosecution having miserably failed to prove its case against the accused beyond reasonable doubt, judgment awarding conviction and sentence to the accused was set aside and the accused was ordered to be released forthwith.

2001  PCRLJ  1475   KARACHI-HIGH-COURT-SINDH

MUZAMMAL HUSSAIN  VS THE STATE

Control of Narcotic Substances Act 1997  —S. 9(b)—Appreciation of evidence—Private Mashir of recovery mentioned in the challan had not been examined by the prosecution and no reasons had been assigned for giving him up—Entry number was neither mentioned in the F.I.R. nor in the Mashirnama of arrest and recovery–Charas allegedly recovered from the possession of accused had been sent to Chemical Examiner after a delay of 24 days—Weight of the Charas mentioned in the F.I.R. was different from its weight mentioned in the report of Chemical Examiner—Accused was extended benefit of doubt in circumstances and he was acquitted accordingly.

2001  PCRLJ  1438   KARACHI-HIGH-COURT-SINDH

AMEER BUX  VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9(b)—Sentence, reduction in—“Charas” weighing 500 grams was recovered from the accused for which he had been awarded a sentence of seven years’ R.I. under S.9(b) of the Control of Narcotic Substances Act, 1997—Trial Court while awarding sentence should have kept in mind the quantity of “Charas” recovered from the accused and the same should have been commensurate with such quantity —Charas recovered from the accused weighed only 500 grams and he had not repeated the crime—Sentence of accused was reduced to three years and six months’ R.I. in circumstances.

2001  PCRLJ  479   KARACHI-HIGH-COURT-SINDH

MUHAMMAD ISHTIAQUE  VS THE STATE

—-Ss. 540 & 439—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Re calling prosecution witnesses for examination —Revisional jurisdiction—Prosecution witnesses were cross-

2001  PCRLJ  338   KARACHI-HIGH-COURT-SINDH

ALI MUHAMMAD PANHWAR  VS STATE

Control of Narcotic Substances Act 1997 —-S. 9(b)—Sentence—Sentence awarded to accused should be proportionate to the quantity of narcotics recovered from him.

2001  MLD  1543   KARACHI-HIGH-COURT-SINDH

FAZAL AHMED  VS THE STATE

—-S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 51(1)—Bail, grant of—Charge against the accused though had not yet been framed, but sufficient material was available against him to prove a charge under S.9(c) of Control of Narcoti

2001  MLD  1166   KARACHI-HIGH-COURT-SINDH

HABIBULLAH KHAN  VS THE STATE

—-S.497—Control of Narcotic Substances .Act (XXV of 1997), Ss.6, 7, 8, 9, 14 & .15—Bail, grant of—Application for quashing of proceedings earlier filed by the accused had already been dismissed by High Court—Accused was alleged to be on suspect

2001  MLD  603   KARACHI-HIGH-COURT-SINDH

MUHAMMAD NAWAZ  VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9(b)—Criminal Procedure Code (V of 1898), Ss.439 & 561-A–Revision petition against acquittal of accused and for quashing of F.I.R. registered against the applicants—No appeal having been filed against the acquittal of accused as contemplated under S. 417, Cr.P.C., revision petition was not maintainable—Applicants being not the Public prosecutors, were not even competent to file the appeal against acquittal—Acquitted accused had not been impleaddd as respondent in the revision petition—Contention for quashing of F.I.R. registered against the applicants was misconceived—Case was under investigation and not pending before any Court—High Court, therefore, neither in its revisional jurisdiction nor in its inherent jurisdiction was competent to quash the F.I.R.—Revision petition was dismissed in circumstances.

2001  MLD  358   KARACHI-HIGH-COURT-SINDH

QAMBAR ALI  VS THE STATE

—–S.516-A—Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 74—Superdari of Tractor—” Charas” weighing 700 grams had been recovered from the tractor belonging to the applicants—Section 74 of the Control of Narcotic Substances Act, 1997 h

2000  SCMR  677   SUPREME-COURT

BAHADAR KHAN VS STATE

1. 497—Control of Narcotic Substances Act (XXI of 1997), S. 6/9–Bail, grant of—Nothing had been recovered from accused who was in jail since long and trial against him had not yet commenced—Case against accused being of further inquiry, was admitted to bail.

2000  SCMR  299   SUPREME-COURT

THE STATE VS MOBIN KHAN

S.497(1), third proviso—Control of Narcotic Substances Act (XXV of 1997), Ss.51(1) & 9(b), (c)—Bail on ground of statutory delay—Third proviso to subsection (1) of 5.497, Cr.P.C., cannot be pressed into service in view of subsection (1) of S.51 read with Cls. (b) & (c) of S.9 of the Control of Narcotic Substances Act, 1997, in a case in which the quantity of narcotic drug or psychotropic substance or controlled substance exceeds one Kg. and which may entail, inter alia, death sentence.

2000  SCMR  1837   SUPREME-COURT

MUHAMMAD AFZAL DARZI  VS STATE

1. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9 & 51—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4–Constitution of Pakistan (1973), Art. 185 (3)—Bail, grant of—Accused was allegedly found in possession of 1500 gms. of heroin—Contention of accused was that case against him was based on absolutely, false allegations and was an outcome of his father’s enmity with the Police and that the recovery was fake—Accused also took the plea of his long detention for grant of bail—Validity—Supreme Court declined the grant of bail keeping in view the huge quantity of heroin allegedly recovered from the accused and directed the Trial Court to conclude the trial within a period of three months from the date of the order of refusal to grant the bail by Supreme Court.

2000  SCMR  1585   SUPREME-COURT

MUNAWAR HUSSAIN MANJ  VS STATE

1. 497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4–Control of Narcotic Substances Ordinance (VI of 1995), S.9—Constitution of Pakistan (1973), Art. 185(3)—Bail—Accused was behind the bars for the last 2 years and seven months and the case was not decided as undertaken by the prosecution—Board of Doctors on examination had found the accused suffering from ischaemiac heart disease and asthma and lie had also stone in his kidney—Accused, who was prima facie, guilty of the abetment of the commission of the offence was entitled to grant of bail on the ground of statutory delay as well—Petition for leave to appeal was converted into appeal and the accused was admitted to bail in cricumstances.

2000  PCRLJ  1086   QUETTA-HIGH-COURT-BALOCHISTAN

SHAH WALI VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9(c)—Appreciation of evidence—Police officials having no ill-will against the accused were competent witnesses who had supported the prosecution case and their testimony could not be discarded only for the reason of their being police employees—Police could not be believed of having planted the narcotics on the accused from their own sources—Defence plea taken by accused being self-contradictory could not be relied upon–Evidence regarding the recovery of narcotics from the accused was not contradictory—Chemical Examiner’s Report in respect of the recovered “Charas” and opium was positive—Delayed despatch of the seized narcotics to the Chemical Examiner and his report thereon were not fatal to the prosecution case—Trial Court by means of a well-reasoned judgment had found the accused guilty which was neither perverse nor arbitrary—Conviction and sentence of accused were upheld in circumstances.

2000  MLD  1504   QUETTA-HIGH-COURT-BALOCHISTAN

GHULAM FAROOQ  VS STATE

—-Ss. 234, 235 & 239—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Joint trial—Recoveries of Charas and opium had been effected from the personal possession of individual accused—Neither prosecution had applied S.34, P.P.C. nor charge

2000  MLD  725   QUETTA-HIGH-COURT-BALOCHISTAN

MAQSOOD AHMED  VS STATE

Control of Narcotic Substances Act 1997 —-S.9(c)—Appreciation of evidence—Prosecution witnesses had supported the prosecution version whose evidence did not suffer from any material infirmity—Recovery of narcotics during the search of the house was not denied by the accused, but his plea of having no concern with the same was not worthy of reliance for which he had failed to furnish any reasonable explanation—Record did not reveal any mala fides of the police officials for having maliciously deposed against the accused and they could not be believed to have planted narcotics on the accused from their own source or to have substituted him for the real culprit -Conviction of accused was upheld in circumstances—Quantity of recovered narcotics, however, having exceeded 10 Kgs., sentence awarded to accused by Trial Court was not in accordance with law—State having not filed any appeal for enhancement of

2000  MLD  618   QUETTA-HIGH-COURT-BALOCHISTAN

GHOUS BAKHSH  VS STATE

Control of Narcotic Substances Act 1997 —-S.9(c)—Burden of proof—Burden of proving its case beyond reasonable doubt rests on the prosecution and its duty does not change or vary even when no defence plea is taken by the accused or the same if taken is not proved or is found to be palpably false—Defence plea is always to be considered in juxtaposition with the prosecution case and in the final analysis, if the defence plea is proved or accepted, then the prosecution case stands discredited/shattered—If, however, the defence plea is substantiated to the extent of creating doubt in the credibility of the prosecution case, in that case too it would be enough.

2000  PCRLJ  1346   PESHAWAR-HIGH-COURT

IJAZ KHAN  VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51(1)—Bail, grant of—Contraband heroin was recovered from motor car driven by accused at the time of occurrence—Accused prima facie was connected with commission of offence—M

2000  PCRLJ  1225   PESHAWAR-HIGH-COURT

WARIS KHAN  VS STATE

—-S. 497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4–Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 21—Bail, grant of—No search warrant was obtained by S.H.O. before entering into house of the accused—Station House Of

2000  PCRLJ  1222   PESHAWAR-HIGH-COURT

NAUROZ KHAN  VS STATE

Control of Narcotic Substances Act 1997 —-Ss. 76 & 74—Prohibition (Enforcement of Hadd) Order (4 of 1979) Art.3/4—Overriding effect of the Act—Control of Narcotic Substances Act, 1997 is the latest and more exhaustive law on the subject of Narcotics as compared- to Prohibition (Enforcement of Hadd) Order, 19′)9 and by virtue of its S.76 read with S.74 its provisions shall have effect notwithstanding anything contained in any other law for the time being in force including the Prohibition (Enforcement of Hadd) Order, 1979.

2000  PCRLJ  949   PESHAWAR-HIGH-COURT

TAHIR  VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9—Prohibition (Enforcement of Hadd) Order (4 of 1979), . Art.3/4/24—Bail, grant of—Accused having been involved by the local police for the offences under two separate statutes, the la

2000  PCRLJ  945   PESHAWAR-HIGH-COURT

SUCHA GUL  VS STATE

Control of Narcotic Substances Act 1997 —-Ss. 51 & 9(c)—Criminal Procedure Code (V of 1898), Ss.496 & 497–Prohibition on grant of bail—Section 51 of the Control of Narcotic Substances Act, 1997 has not only excluded the applicability of Ss.496 & 497, Cr.P.C, but has also excluded any class of people from availing bail if charged under S.9(c) of the said Act.

2000  PCRLJ  935   PESHAWAR-HIGH-COURT

ABDUL GHAFOOR  VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 25—Bail—Section 25 of the Control of Narcotic Substances Act, 1997 had categorically excluded the application of S.103, Cr.P.C. to the cases registered under the said Act and non-as

2000  PCRLJ  917   PESHAWAR-HIGH-COURT

MUHAMMAD ASHRAF,  VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9, 51 & 47—West Pakistan Arms Ordinance (XX of 1965), S.13—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.4—Bail, grant of—Despite the bar contained in S.51 of the Control

2000  PCRLJ  915   PESHAWAR-HIGH-COURT

ABDUR REHMAN  VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 51—Bail—Accused who was charged with the offence punishable with death or imprisonment for life, could not be released on bail as laid down in S,51 of the Control of Narcotic Substa

2000  PCRLJ  891   PESHAWAR-HIGH-COURT

SHAGUFTA ANWAR  VS ZULFIQAR

—-S. 497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4—Control of Narcotic Substances Act (XXV of 1997), S.6/7/8/9–Bail, grant of—Assistant Sub-Inspector of Police was not competent to register the case against the accused under Ss

2000  MLD  855   PESHAWAR-HIGH-COURT

REHANA  VS STATE

—-S.497—Prohibi ion (Enforcement of Hadd) Order (4 of 1979), Art. 3/4–Control of Narcotic Substances Act (XXV of 1997), S.9—Bail, grant of–Accused was a lady having a suckling child with her in jail—Case of accused would fall under first proviso

2000  YLR  2173   LAHORE-HIGH-COURT-LAHORE

SABIR  VS THE STATE

—-Ss. 403 & 561-A—Customs Act (IV of 1969), Ss.156 (1) (89), 157 & 178—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8, 9. 9-C, 14 & 15—General Clauses Act (X of 1897), S.26—Constitution of Pakistan (1973), Art.13—Quashing of cas

2000  PCRLJ  1002   LAHORE-HIGH-COURT-LAHORE

OMARI KHOJA  VS STATE

—-S. 6/9—Customs Act (IV of 1969), S.156(1)(8)—Constitution of Pakistan (1973), Art.13—General Clauses Act (X of 1897), S.26—Criminal Procedure Code (V of 1898), Ss.403 & 561-A—Quashing of proceedings–Plea of double jeopardy—Trial of accuse

2000  PCRLJ  858   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SHAHID  VS STATE

Control of Narcotic Substances Act 1997 —-Ss. 9(c) & 26—Prohibition (Enforcement of Hadd) Order (4 of 1979) Art.3/4—Suppression of Terrorist Activities (Special Courts) Act (X of 1975), S.8—Appreciation of evidence—Burden of proof—Prosecution led no evidence in support of its case and relied upon S.26, Control of Narcotic Substances Ordinance, 1996, to maintain that it was the duty of. accused to demolish the case of . prosecution—Trial Court convicted accused as he did not lead any evidence-to disprove recoveries allegedly effected from him–Primary duty of prosecution was to prove its case beyond reasonable doubt and burden of prosecution would not be displaced under the presumption embodied in S.26, Control of Narcotic Substances Ordinance, 1996 which lays down that once prosecution had led evidence in support of its case, it was then that accused would be required to disprove the same—Section 26, Control of Narcotic Substances Act, 1996 had not absolved prosecution of its duty to prove its case beyond doubt–:Conviction and sentence awarded to accused by Trial Court were set aside and case was remanded to decide the same afresh accordingly.

2000  PCRLJ  533   LAHORE-HIGH-COURT-LAHORE

ABDUL SHAKOOR  VS STATE

—-S. 497—Prohibition (Enforcement of Hadd)-Order (4 of 1979), Art.3/4–Control of Narcotic Substances Act (XXV of 1997), S.9/4/43/97 — Bail, grant of—Accused was in custody for more than six months but the trial had not so far concluded—Two smal

2000  PCRLJ  452   LAHORE-HIGH-COURT-LAHORE

NASRULLAH KHAN VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 9—Appreciation of evidence—Recovery of Charas weighing 980 grams from the possession of accused at the time of his arrest and search was proved by consistent prosecution evidence—Accused being a stranger to witnesses, police officials deposing against him could not be said to be not independent witnesses and his false implication in the case could not be possibly inferred—Accused, however, without challenging his conviction had prayed for only reduction in his sentence—Accused had no previous history of dealing in narcotics and had spent a total period of two years and five months in jail facing agony of trial—Sentence of seven years’ R.I, awarded .to accused by Trial Court was reduced to imprisonment already undergone by him in circumstances—Sentence of fine was also substantially reduced.

2000  PCRLJ  30   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD IQBAL KAUKAB  VS KAUKAB SULTANA

—-S. 497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4—Control of Narcotic Substances Ordinance (XIII of 1996), S.9(c)—Bail, grant of—Prosecution witnesses had not supported prosecution version–Recovery of alleged heroin from

2000  MLD  483   LAHORE-HIGH-COURT-LAHORE

LIAQUAT ALI  VS STATE

—-S.497—Control of Narcotic Substances Act (XXV of 1997), S.9-C–Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4—Bail–Huge quantity of heroin weighing one kilogram and 200 grams was recovered from the possession of accused—No mal

2000  MLD  144   LAHORE-HIGH-COURT-LAHORE

BAHADUR KHAN  VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c)—Bail, grant of—Recovery of 1200 grams of heroin and one and a half kilograms of Charas was effected from the accused—Earlier another case of drug trafficking stood registered aga

2000  YLR  2428   KARACHI-HIGH-COURT-SINDH

MOHARRAM  VS THE STATE

—-S.497—Control of Narcotic Substances Act (XXV of 1997), S. 9—Bail— “Bhang ” (hemp) weighing 500 grams was allegedly recovered from the possession of accused–Substance recovered from the accused, although had been specifically mentioned as narco

2000  YLR  137   KARACHI-HIGH-COURT-SINDH

LAL BUX  VS THE STATE

Control of Narcotic Substances Act 1997 —-S.9(c)—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4–Constitution of Pakistan (1973), Art.12–Conviction and sentence—Competence—Case against accused was registered in 1992 under Art. 314 of Prohibition (Enforcement of Hadd) Order, 1979 and he was challaned for said offence on completion of investigation, but was charged, convicted and sentenced under S.9(c) of Control of Narcotic Substances Act, 1997 which Act was not in force at the time of 997 registration of the case—None of the provisions of the said Act had retrospective effect—No punishment could be awarded for an act not punishable under a law which was non-existent at the time of alleged commission of offence nor any charge under said enactment be proved—Conviction and sentence passed against accused were set aside and case was remanded for trial of same in accordance with law in force at relevant time by a competent Court.

2000  YLR  53   KARACHI-HIGH-COURT-SINDH

HAJRA  VS THE STATE

—-S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.8 & 9—Bail, grant of—Record had not shown that alleged narcotic substance was despatched for chemical analyses and it was nowhere mentioned that any sample of narcotic substance was take

2000  PCRLJ  1870   KARACHI-HIGH-COURT-SINDH

IMRAN AMIN  VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.6/9–Bail, grant of—Prosecution case, prima facie, had disclosed commission of a cognizable offence punishable with sentence up to death—Substantial accusation being available against ac

2000  PCRLJ  1792   KARACHI-HIGH-COURT-SINDH

SHEHZAD QAMAR  VS THE STATE

—-S. 6/9—Appreciation of evidence—All three accused were real brothers inter se and it would hardly appeal to a prudent mind that all three of them were taking away huge quantity of Charas in their hands in busy morning hours of, the day—Private c

2000  PCRLJ  1752   KARACHI-HIGH-COURT-SINDH

SHAUKAT MEHMOOD  VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss:9(c) & 14—Bail, grant of—Huge quantity of Charas was recovered from the possession of accused who were apprehended on the spot—Contention of accused that they were made victims of enm

2000  PCRLJ  1360   KARACHI-HIGH-COURT-SINDH

HAMZA  VS STATE

—-Art. 3/4—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9—Appreciation of evidence—One of prosecution witnesses was a stock witness and a drug addict—Other witness had admitted in his cross-examination that he had been appearing in c

2000  PCRLJ  1342   KARACHI-HIGH-COURT-SINDH

RAMZAN  VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(c)–Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4—Bail, grant of—Prosecution witnesses had fully implicated accused and absconding accused in their statements under 5

2000  PCRLJ  1317   KARACHI-HIGH-COURT-SINDH

LIAQUAT ALI  VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of, 1997), S.6/9(c)—Bail, grant of—Accused was behind the bars for the last more than one year, but trial had not been concluded—Reason for non-conclusion of the trial was non-availability of Pres

2000  PCRLJ  1019   KARACHI-HIGH-COURT-SINDH

JEHANZEB KHAN  VS STATE

—-Art. 3/4—Control of Narcotic Substances Act (XXV of 1997), S.9–Submission of challan in the Court of Special Judge—Validity—Huge quantity of contraband “Charas” having been recovered from the accused, the offence was triable by the Special Cour

2000  PCRLJ  956   KARACHI-HIGH-COURT-SINDH

XIOMORIA MARIA DE ARAMS TROJILLO  VS STATE

—-Ss. 403 & 561-A—Customs Act (IV of 1969), Ss.2(5) & 156(1)(8)–Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7 & 9(c)–Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4—Constitution of Pakistan (1973), Art. 13(1)—Principle o

2000  PCRLJ  907   KARACHI-HIGH-COURT-SINDH

ABDUR REHMAN MUBARAK  VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)–Bail, grant of—Rule of consistency—Applicability—Heroin powder weighing 1000 grams was recovered from the physical possession of the accused—Case of the co-accused could not be

2000  PCRLJ  763   KARACHI-HIGH-COURT-SINDH

HAZRAT KHAN  VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.6/7/8/9/12/13/14/15—Bail—F.I.R. could not be ruled out of consideration merely on account of the omission of a minor fact as the same did not necessarily require to have contained the mi

2000  PCRLJ  760   KARACHI-HIGH-COURT-SINDH

ABDUL JALIL  VS STATE

—-S. 6/9(c)—Appreciation of evidence—Charge framed in the case was bad in law as “Bhang” allegedly recovered -from the accused did not fall within the definition of “hemp” contained in S.2(D)(ii) of the Control of Narcotic Substances Act, 1997—F.I

2000  PCRLJ  755   KARACHI-HIGH-COURT-SINDH

SHER MUHAMMAD  VS STATE

Control of Narcotic Substances Act 1997 —-S. 9(c)/15—Appreciation of evidence—Lady accused could possibly carry ten kilograms of “Charas” on her body for monetary consideration or otherwise—Case being one of search of accused and not of search of a dwelling house or a closed premises, association of two or more respectable persons of the locality was not required and the provisions of S.103, Cr.P.C. were not attracted in the case—Long interval between the occurrence and the Court proceedings might be a cause for minor discrepancies in the prosecution evidence, but the same did not militate against the material fact of recovery of “Charas” from the possession of accused on the appointed date, time and place—Delay in receipt of the parcel in the office of Chemical Examiner for whatever reason was neither fatal to the prosecution case, nor the same had reflected adversely on the bona fides of the investigation–Offence evidence did not have the impact of negating the prosecution evidence—Conviction and sentence of accused were maintained in circumstances.

2000  PCRLJ  747   KARACHI-HIGH-COURT-SINDH

SHAHID HUSSAIN  VS STATE

—-Ss. 497 & 498—Control of Narcotic Substances Act (XXV of Y1997), Ss.9(c), 14 & 51—Bail, grant of—Accused being “Examining Officer” of consignment in which eight hundreds kilograms of Hashish was allegedly being transported to foreign country, wa

2000  PCRLJ  745   KARACHI-HIGH-COURT-SINDH

ALI MUHAMMAD  VS STATE

—-Ss. 497 & 498—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9, 12, 13, 20 & 21—Bail, grant of—Accused and co-accused at the relevant time were travelling in a car which on its stoppage was found containing five Kgs. of Charas in packet

2000  PCRLJ  743   KARACHI-HIGH-COURT-SINDH

EHSANUL HAQUE  VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 9 & 13—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4—Bail, grant of—Bail was claimed on grounds of statutory delay and ill-health of accused—Quantity of 340 gra

2000  PCRLJ  740   KARACHI-HIGH-COURT-SINDH

ALI DOST  VS STATE

—-Ss. 497 & 498—Control of Narcotic Substances Act (XXV of 1997), Ss.6, ~, 8, 9, 13, 14 & 51—Bail, grant of—Accused and co-accused had established a false trading company and had sent eight hundred Kgs. Hashish in bags to a foreign country—Fact

2000  PCRLJ  738   KARACHI-HIGH-COURT-SINDH

SALEEM MEMON  VS STATE

—-Ss. 497 & 498—Control of Narcotic Substances Act (XV of 1997), Ss.7, 8, 9, 12 & 14—Bail, grant of—Five persons who were arrested in foreign country where consignment was being transported, had alleged during investigation that consignment was ar

2000  PCRLJ  735   KARACHI-HIGH-COURT-SINDH

WAKEEL AHMAD SIDDIQUI  VS STATE

——Ss. 497 & 498 —–(control of narcotic substances act (XXV of 1997) Ss 6, 7, 8, 9, 13, 14, 15 & 51 ——-Penal code (XLV of 1860), S 120-B/34—- Bail grant of —–Allegation against accused was that he was connected with company which had export

2000  PCRLJ  714   KARACHI-HIGH-COURT-SINDH

HADI BUX  VS STATE

—-S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)–Bail, grant of—Case of further inquiry—Delay in sending samples to Chemical Examiner—Non-preparing of Mashirnama at the time of recovery or subsequently, by the Investigating

2000  PCRLJ  657   KARACHI-HIGH-COURT-SINDH

GUL HASSAN DERO  VS STATE

Control of Narcotic Substances Act 1997 —-S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 51—Bail, grant of—Case of – accused fell under S.9(c) of the Control of Narcotic Substances Act, 1997 as the quantity of narcotic substances recovered from him exceeded one Kg. and did not exceed 10 Kgs.—Vast difference existed in alleged recovery of narcotics from the accused as per case of the prosecution and the one shown by the Chemical Examiner in his report—Arrest of the accused in the case also needed serious consideration which could not be resolved without recording evidence—Embargo on grant of bail contained in S.51(1) of the Control of Narcotic Substances Act, 1997 did not apply to the case of accused and the allegations made against him required further enquiry as contemplated by S.497(2), Cr.P.C.—Accused was admitted to bail in circumstances.

2000  PCRLJ  569   KARACHI-HIGH-COURT-SINDH

MEHBOOB-UR-REHMAN  VS STATE

—-Ss. 497 & 498—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 8, 9, 12, 14, 15 & 51—Bail, grant of—Provisions of S.51(1), Control of Narcotic Substances Act, 1997, provide bar in respect of grant of bail to an accused if Trial Court had

2000  PCRLJ  551   KARACHI-HIGH-COURT-SINDH

GUL MUHAMMAD VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.6/9–Bail, grant of—Accused was not found selling “Charas” within the bounds of an enclosure, room or shop, but the same was secured on his personal search from the pocket of his inner shi

2000  PLD  181   KARACHI-HIGH-COURT-SINDH

REHMAT KHAN VS D.G., INTELLIGENCE AND INVESTIGATION (CUSTOMS AND EXCISE)

Control of Narcotic Substances Act 1997 —-S. 403—Customs Act (IV of 1969), Ss.2(s), 16, 178 & 156(1)(8)(82)(89)—Control of Narcotic Substances Act (XXV of 1997), S.9(c)—Constitution of Pakistan (1973), Arts.13 & 199—Constitutional petition—Doctrine of double jeopardy—Applicability-=-Narcotic was recovered from petitioners in departure hall of the International Airport–Department had initiated two trials one before the Special Judge (Customs and Taxation) under Ss.2(s), 16, 178, 156(1)(8)(82)(89), Customs Act and the other before Special Judge under S.9(c) of Control of Narcotic Substances Act, 1997—Application under S.265-K, Cr.P.C. filed by the petitioners before the Special Judge was dismissed—Contention by the Department was that without conviction or acquittal , by the Court of competent jurisdiction, petitioners could nor be said to have faced double jeopardy—Validity—Trial in the Court of Special Judge (Customs and Taxation) would either result in conviction or acquittal on the basis of facts, evidence and alleged recovery in the case while the other trial under S.9(c) of Control of Narcotic Substances Act, 1997. in presence of same facts and in same set of evidence by the Special Judge, would patently result in a duplicate punishment or at least a duplicate trial in violation of the doctrine of double jeopardy—Aggrieved person could seek the quashing of such proceedings without first having been convicted or acquitted for the same offence by a Court of competent jurisdiction—Proceedings under Ss.6 & 9(c) of Control of Narcotic Substances Act, 1997, pending before the Special Judge; were ordered to be quashed—Petition was allowed accordingly.

2000  MLD  842   KARACHI-HIGH-COURT-SINDH

ABDUL QAYYUM  VS STATE

—-S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9, 14 & 15—Bail—Court obviously could not be oblivious to the menace of drugs and their evil effects in the society, but the law as to the grant of bail in such offences, despit

2000  MLD  364   KARACHI-HIGH-COURT-SINDH

AIJAZ AHMED  VS BASHIR AHMED BHUTTO, INVESTIGATING OFFICER (PREVENTIVE COLLECTORATE), CUSTOMS HOUSE, KARACHI

Control of Narcotic Substances Act 1997 —-S.9(b)—Customs Act (IV of 1969), S.156(8)—Constitution of Pakistan (1973), Arts. 13 & 199—Constitutional petition—Double punishment–Validity—Accused from whom heroin had been recovered had been convicted and sentenced under the Customs Act, 1969, which he had undergone—Accused on the same facts had again been summoned and on his having pleaded guilty had been convicted and sentenced under S.9 of the Control of Narcotic Substances Act, 1997, by the. Special Court—Offence committed under the Customs Act, 1969, having covered the offence under the Control of Narcotic Substances Act, 1997, could not be tried for the second time under the latter Act and the accused could not be punished twice for the same act as ordained by Art. 13 of the Constitution—Conviction and sentence of accused under the Control of Narcotic Substances Act, 1997, were consequently quashed.

2000  MLD  206   KARACHI-HIGH-COURT-SINDH

HIGHAM SANDRA  VS INVESTIGATION OFFCER, INVESTIGATION AND PROSECUTION BRANCH, CUSTOMS

Control of Narcotic Substances Act 1997 —-S.9(c)—Customs Act (IV of 1969), S.156(8)—Criminal Procedure Code (V of 1898), S.403-General Clauses Act (X of 1897), S.26—Constitution of Pakistan (1973), Arts. 13 & 199—Constitutional Petition—Second trial for the same offence—Accused had already been convicted by the Customs Judge for recovery of the heroin from him under the Control of Narcotic. Substances Act, 1997—Second case had been registered against the accused on the basis of same facts, investigation, evidence and recovery which were subject-matter of the first trial—Points involved in the subsequent trial were the same which had already been considered and decided in the first trial… Conviction and sentence of accused by the Special Judge in the second trial were consequently set aside.

1999  SCMR  1271   SUPREME-COURT

GUL ZAMAN  VS STATE

Ss. 496, 497 & 498—Control of Narcotic Substances Act (XXV of 1997), Ss. 9, 15 & 51—Bail—Notwithstanding the bar contained in S. 51 of the Control of Narcotic Substances Act, 1997 bail could be granted to an accused person—Applicability of Ss. 496, 497 & 498, Cr.P.C. was not totally barred in respect of cases under the said Act—Prohibition was only regarding the offence punishable with death thereunder while bail could be allowed in other suitable cases.

1999  YLR  2487   PESHAWAR-HIGH-COURT

ASHRAF KHAN  VS STATE

—-S.497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4 — Control of Narcotic Substances Act (XXV of 1997), S.6/7/9—Bail, grant of—Age—Accused according to his School Leaving Certificate was 13/14 years of age—Report of Chemical

1999  YLR  2087   PESHAWAR-HIGH-COURT

STATE  VS ZAFARVAB

—-Ss. 516-A & 439—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art. 3/4—Control of Narcotic Substances Act (JXV of 1997), S. 6/7/8/9/13—West Pakistan Arms Ordinance (XX of 1965), S. 13—Penal Code (XLV of 1860), S. 419/420—Custody of ve

1999  YLR  1732   PESHAWAR-HIGH-COURT

SAKINA  VS STATE

—-S.497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8 & 9—Bail–Recovery of one kilogram heroin had been effected from the actual possession of accused which was confirmed as heroin by the Chemical Examiner’s Report—Accused on the

1999  YLR  1625   PESHAWAR-HIGH-COURT

MUMTAZ SHAH  VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8 & 9—Bail, grant of—Two persons who were found carrying 45 Kgs. of Charas in motor car were arrested and case under Ss. 6, 7, 8 & 9 of Control of Narcotic Substances Act, 1997 w

1999  YLR  1613   PESHAWAR-HIGH-COURT

MUHAMMAD AKRAM ALIAS LADO VS THE STATE

—-S. 497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art. 3/4—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8 & 9—Bail, grant of—An Assistant Sub-Inspector of Police admittedly had no jurisdiction to register a case under

1999  YLR  1405   PESHAWAR-HIGH-COURT

NADIR KHAN  VS STATE

—-Ss. 497 & 103—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4–Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8, 9, 51 & 25—Bail–Quantity of heroin recovered from the accused being more than one kilogram, the offence was

1999  YLR  591   PESHAWAR-HIGH-COURT

MUHAMMAD ZAMAN  VS STATE

—-S.497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4 — Control of Narcotic Substances Act (XXV of 1997), Ss. 9 & 21—Bail—A.S.I. in view of S.21 of the Control of Narcotic Substances Act, 1997 had no jurisdiction to register a cas

1999  PCRLJ  63   LAHORE-HIGH-COURT-LAHORE

NAVEED AHMAD KHAN  VS STATE

—-S. 497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4–Control of Narcotic Substances Act (XXV of 1997), S.6/9—Bail, grant of–Case having been registered against the accused under two different provisions of law and his offence bein

1999  MLD  3147   LAHORE-HIGH-COURT-LAHORE

SARDAR KHAN  VS STATE

Control of Narcotic Substances Act 1997 —-S. 9(c)/15—Criminal Procedure Code (V of 1898), 5.439—Revision–Accused had sought the reversal of the impugned order of the Special Court whereby the application moved by them under S.265-K, Cr.P.C. had been dismissed—Propriety, correctness and legality of the order were to be seen in the revision petition—High Court could not be satisfied as to how the said impugned order was incorrect, improper or illegal—Matter was sub judice after submission of challan before the Trial Court which had got every right to decide the application under S.265-K, Cr.P.C. in its discretion—Reason given by Trial Court that the inquiry report relied upon by the accused was simply a piece of evidence collected by the Inquiry Officer in their favour just like what the Investigating Officer had collected in favour of prosecution and that both the collections of evidence needed proper thrashing during trial in order to determine the truth and falsehood for which both the parties were required to produce their evidence for just conclusion of the case, could not be said to be incorrect by any standard; especially when the two important recovery witnesses had not been examined by the Inquiry Officer—Judicial inquiry could not be given such importance as submitted by the accused otherwise the whole purpose of investigation and trial was to be set at naught—Revision petition was dismissed in circumstances.

1999  MLD  2495   LAHORE-HIGH-COURT-LAHORE

ASIF ALI ZARDARI, SENATOR  VS S.H.O., POLICE STATION QILLA GUJJAR SINGH

Control of Narcotic Substances Act 1997 —-Ss. 8, 9, 12, 13, 14 & 15—Constitution of Pakistan (1973), Art.199–Constitutional petition—Maintainability—Quashing of F. I. R. —Jurisdiction of High Court —F.I.R. was registered against petitioner and petitioner had neither joined -investigation, nor placed his version before Investigation Agency–Interference of High Court in investigation conducted by police—Scope—High Court interfered in the matter where prosecution was launched mala fide and no case on the face of record was made out—Constitutional petition being premature was not maintainable.

1999  MLD  1496   LAHORE-HIGH-COURT-LAHORE

ZOHRA  VS STATE

—-S. 497—Control of Narcotic Substances Ordinance (XLIII of 1997), Ss.9(b) & 51—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4—Bail–Bail application is directly entertained, heard and disposed of by a Court of higher pedestal in ver

1999  PLD  465   KARACHI-HIGH-COURT-SINDH

FAZAL SHAH VS THE STATE

Control of Narcotic Substances Act 1997 S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9 & 51–Bail—Accused was allegedly found in possession of two kilograms of Charas which was punishable with imprisonment for life—Contention that despite recovery of two kilograms of narcotic from the accused, only 150 grams of the same were sent for chemical analysis, had no force—No specific provision or settled principle of law required that entire quantity and not merely a sample out of the narcotic substance recovered from the accused should be sent for chemical analysts—Sample drawn out of the whole lot during investigation could equally be treated as a piece of whole substance—Section 51 of the Control of Narcotic Substances Act, 1997 had also placed embargo on the powers of Court to grant bail—Accused was disallowed bail in circumstances.

1999  YLR  2627   KARACHI-HIGH-COURT-SINDH

RAFAQAT AHMED  VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9—Bail, grant of–Accused admittedly were not present at the time of alleged recovery of narcotics from the other accused and thereafter nothing was recovered from the accused- Co-accused

1999  YLR  1445   KARACHI-HIGH-COURT-SINDH

STATE  VS DANISH ALI DEWAN

—Ss. 435 & 497(5)—Control of Narcotic Substances Act (XXV of 1997), S. 9—Suo Motu criminal revision—Cancellation of bail—Sessions Court had allowed bail to the accused considering the case to be one under Arts. 3 & 4 of the Prohibition (Enforcem

1999  YLR  1417   KARACHI-HIGH-COURT-SINDH

ZAHEER HUSSAIN SHAH  VS SECRETARY, GOVERNMENT OF SINDH

—-S. 9—Constitution of Pakistan (1973), Art. 199—Constitutional petition—Quashing of enquiry report etc.—Excise and Taxation Staff was authorised to apprehend and investigate the offence under the Narcotic Laws and they had registered a case ref

1999  PLD  336   KARACHI-HIGH-COURT-SINDH

MARK MIFSUD MRS. ROSEMARIE MORLEY VS INVESTIGATING OFFICER, CUSTOMS

Control of Narcotic Substances Act 1997 Ss. 403 & 235(2)—Customs Act (IV of 1969), S.156(1)(8)—Control of Narcotic Substances Act XXXV of 1997), S.9(c)—Constitution of Pakistan (1973), Art. 13—Person once convicted or acquitted not to be tried for same offence—Protection against double punishment and self-incrimination–Determination of question as to whether the offence was same or two distinct offences—Test—Where one act or omission constitutes an offence under two or more Acts, offender shall be liable to be punished under either of any of those Acts, but would not be liable to be punished twice for the, same offence, though defined in different way—Where the accused persons were attempting to take out from Pakistan heroin powder, their cases in entirety were covered by S.156(1)(8) of the Customs Act, 1969—Accused persons having been arrested at the Airport, they could not be tried for the same offence under the provisions of Narcotic Substances Act, 1997 or under various other drug-related laws for the reason that second case against the accused persons could not be registered on the strength of same investigations, facts, evidence and recovery in violation of principle of double jeopardy, which prohibited a duplicate trial and a duplicate punishment.

1999  MLD  1255   KARACHI-HIGH-COURT-SINDH

SALEEM HYDER  VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.6/9—Bail, grant of—Recovery was not made in the presence of respect-able of locality though complainant had advance information—Maximum punishment prescribed for alleged offence did no

1999  MLD  1222   KARACHI-HIGH-COURT-SINDH

JAHANZEB  VS STATE

–S. 498—Control of Norcotic Substances Act (XXV of 1997), S.9(3)–Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4—Pre-arrest bail—Accused had been challaned before a competent Court, but they had been evading warrants of arrest issued

1999  MLD  474   KARACHI-HIGH-COURT-SINDH

ASLAM  VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9—Bail, grant of—Recovery from the accused was not made in the presence of independent respectable persons of the locality—Offence against accused did not fall within the prohibitory

1998  PCRLJ  2086   QUETTA-HIGH-COURT-BALOCHISTAN

NASRULLAH VS THE STATE

—-Ss. 9, 29 & 21—Appreciation of evidence— “Controlled substances”—Connotation—” Opium baked” being covered by the “controlled substances” was cognizable by the Special Court constituted under the Control of Narcotic Substances Act, 1997—Since

1998  PCRLJ  1625   PESHAWAR-HIGH-COURT

GHULAM SARWAR  VS ADDITIONAL DISTRICT JUDGE, TAUNSA CAMP

—-S. 497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4– Control of Narcotic Substances Act (XXV of 1997), S. 9—Bail—Benefit of, s irregularity committed by the police official in giving wrong date in the recovery memo due to his ca

1998  MLD  1339   PESHAWAR-HIGH-COURT

SULTANA BIBI  VS STATE

—-S.497—Control of Narcotic Substances Act (XXX of 1997), Ss. 9 & 51—Bail, grant of—Punishment provided for offences alleged to be committed by accused who were ladies with suckling babies, was either death or life imprisonment because quantity of

1998  PCRLJ  2008   LAHORE-HIGH-COURT-LAHORE

KHALID NAWAZ VS THE STATE

Control of Narcotic Substances Act 1997 —-Ss. 9, 21 & 22—Appreciation of evidence—Assistant Sub-Inspector of Police Station during “Gusht” finding accused in suspicious position, searched him and allegedly recovered heroin from his possession and registered case against him–Alleged recovery of heroin was attested by Police Constable who at relevant time accompanied complainant/Assistant Sub-Inspector of Police and no person from public was joined in the recovery—Sections 21 & 22 of Control of Narcotic Substances Act, 1997, provided that an officer below the rank of Sub- inspector of Police could not seize in any public place and had no authority to search and arrest a person for recovery of narcotics—Power and authority to set the law in motion having been linked with substantive jurisdiction without which proceedings could not be initiated, proceedings of search, arrest and recovery could not be processed by complainant who was simply an Assistant SubInspector of Police—Recovery memo in case was attested by police constable and no person from public was joined—Complainant/Assistant Sub-Inspector having no jurisdiction to detain, search and arrest accused, alleged recovery witnessed by a subordinate of such Police Officer, would have to be viewed with caution and same had no legal force in circumstances—Sentence recorded against accused was illegal being coram non judice and was set aside.

1998  PCRLJ  1462   LAHORE-HIGH-COURT-LAHORE

JAVED AKHTAR VS  THE STATE

Control of Narcotic Substances Act 1997 —-S. 9(b)—Appreciation of evidence—Police Officer (complainant) had also conducted investigation and submitted the challan against the accused and all the witnesses in the case being subordinate to him, prejudice had been caused .to accused—Parcels of the Charas recovered from the accused did not appear to have been kept in the “Malkhana”-in safe custody—Chemical Examiner’s Report was unreliable on account of unexplained delay in sending the material to him–Accused being unrepresented by a counsel was handicapped to bring out the truth on record through cross-examination—Accused was acquitted on benefit of doubt in circumstances.

1998  PCRLJ  819   LAHORE-HIGH-COURT-LAHORE

MST. SAKINA BIBI AND 2 OTHERS VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Bail, grant of—Accused were women and were in custody for the last about seven months—Case of accused being not covered by prohibitory clause, they were admitted to bail.

1998  PCRLJ  128   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD YAQUB VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.51 & 9–Bail—Offences under the Anti-Narcotic Substances Act, 1997, no doubt, have been made non-bailable by S.51 of the said Act, but bail can be granted to an accused in an offence puni

1998  MLD  1183   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SHAFI  VS MUHAMMAD SAFDAR

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(B)–Bail, grant of—Accused who wad a woman was in judicial lock-up for the last 9 months—No prosecutor having been appointed by Government, no likelihood of early conclusion of trial

1998  PLD  146   LAHORE-HIGH-COURT-LAHORE

NASIRA BIBI VS THE STATE

Control of Narcotic Substances Act 1997 S. 497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4–Control of Narcotic Substances Act (XXV of 1997), Ss. 9, 15 & 51—Bail–Accused was arrested red-handed at the spot with a packet which according to the report of Chemical Examiner contained heroin—Offence against accused by virtue of quantity of heroin recovered from her, no doubt, did not fall in the prohibitory clause of S.497(1), Cr.P.C., but such fact, ipso facto, could not create a right of bail in view of S.51 of the Control of Narcotic Substances Act, 1997 placing an embargo on the grant of bail—Allegations of mala fides, prima facie, were not tenable—Courts could refuse bail to a lady accused charged with serious allegations—Accused was refused bail in circumstances.

1998  PCRLJ  1628   KARACHI-HIGH-COURT-SINDH

STRONG BUILT ENTERPRISES (PVT.) LTD., LAHORE  VS FAUJI FERTILIZER COMPANY LTD.

—-Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 25—Bail, grant of—Accused had contended that Police Officer who had searched the accused and had registered case against him being of a rank of Sub Inspector of Police, was n

1998  PCRLJ  1540   KARACHI-HIGH-COURT-SINDH

NAZAN SHAH VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9–Bail, grant of—Case against accused at best was of recovery of 500 grams of Charas which was stated to have been sent to Chemical Examiner—Such recovery being less than one kilog

1998  PCRLJ  1444   KARACHI-HIGH-COURT-SINDH

LIAQUAT ALI VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9 & 21–Bail, grant of—Maximum punishment provided in respect of offence alleged against accused, was seven years—Case against accused in circumstances would not fall within prohibit

1997  PLD  69   QUETTA-HIGH-COURT-BALOCHISTAN

KHAUDAI DAD VS THE STATE

—-Arts. 3 & 4—Control of Narcotic Substances Ordinance (VI of 1995), Ss. 6, 7, 8 & 9—Repeal by implication—When not permissible—Articles 3 & 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and Ss. 6, 7, 8 & 9 of the Control of Narcotic Su

1996  PLD  304   LAHORE-HIGH-COURT-LAHORE

NAWAB DIN VS THE STATE

Control of Narcotic Substances Act 1997 Ss. 9, 11, 13, 15, 16 & 17 — Control of Narcotic Substances Ordinance, 1995 prospective in nature — Control of Narcotic Substances Ordinance, 1995 cannot be termed merely a procedural law but it materially affects the rights of the individuals and, therefore, cannot be permitted to have retrospective effect, hence it is prospective in operation.