Naqeebullah D/O Akhtar Muhammad vs The State Through Prosecutor General

Balochistan High Court · 2022 · Before Hon'ble Justice Shaukat Ali Rakhshani

apprehended on a tip off on 01.05.2021 at New Maikhtar Daewoo Bus Terminal, Loralai, while holding a bag, wherein 7 kgs of charas were recovered, who was booked pursuant to an FIR bearing No.75 of 2021 registered within the remits of Police Station Saddar, Loralai and after denial of the indictment was tried, wherein the prosecution produced five witnesses and examined the appellant with no defence, found guilty of the charge by learned Special Judge of the court constituted under the Control of Narcotic Substances Act, 1997 ("Trial Court") and thereby convicted and sentenced under the offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997 ("Act of 1997") for ten years RI and to pay fine of Rs.50,000/-, and in default thereof, to further undergo six months SI with the premium of section 382-B of the Criminal Procedure Code, 1898 (“The Code”). Crl. Appeal No.531/ 2021 (2) Only for viewing purpose. Contact office for certified copy.

2. Learned counsel for the appellant inter alia contended that the accused-appellant has falsely been implicated in the instant case; submitted further that neither recovery has been proved by the prosecution nor safe custody and transmission has been established, thus, the prosecution has failed to prove the indictment, as such, the appellant merits to be acquitted of the charge. Conversely, learned APG ardently opposed the appeal and acquittal of the appellant. He urged that the prosecution has proved the recovery of the contraband to the hilt, including safe custody and transmission of the narcotics; therefore, the appeal requires dismissal.

3. Heard. Record pondered upon with the able assistance of learned counsel for the parties. Abdul Rehman SI/SHO (PW-1) is the seizing officer, who apprehended the appellant on a tip off rendered by a spy with details that culprit was present at the Bus Stand near New Maikhtar Terminal. According to complainant (PW-1) at 3:15 pm, they rushed to the said terminal and apprehended the appellant Naqeebullah, who was holding a cloth made sack of rice in his hand, which was searched and 7 kgs charas were recovered, whereof murasila (Ex.P/1-A) was sent to Police Station for registration of the case. During cross-examination, it revealed that the charas was in slate form, wrapped in a plastic. According to him, the parcel was made on the spot first and then murasila was sent to the Crl. Appeal No.531/ 2021 (3) Only for viewing purpose. Contact office for certified copy. Police Station. He denied that nothing was recovered from the appellant. Hissamuddin HC (PW-2) reiterated and came up with a similar story as narrated by complainant (PW-1). He produced recovery memo as Ex.P/3-A and charas as Art.P/4. During cross-examination, he stated that the charas was in the form of a brick, which were wrapped in a plastic with tap and all the pieces of charas were weighed together on the weight machine and then the SHO made a parcel there on the spot.

4. To prove the safe custody and transmission, the prosecution relies upon the testimonies of PWs-3 & 5 as well as Investigating Officer (“IO”) PW-4. We would like to firstly dilate upon the testimony

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