Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Official Citation: 2024 YLR 2376
Court / Jurisdiction: Sindh High Court
Year of Decision: 2022
Decision Date: 2022-11-15
Parties: Inayatullah Pathan vs The State
Ruling Summary: This decision was rendered by the Sindh High Court on 2022-11-15, officially reported as 2024 YLR 2376. In this matter between Inayatullah Pathan and The State, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 YLR 2376
Court Name: Sindh High Court Judge(s): Shamsuddin Abbasi, Amjad Ali Sahito Title: Inayatullah Pathan vs The State Case No.: Criminal Jail Appeal No. D-43 of 2021 Date of Judgment:2022-11-15 Reported As: 2024 YLR 2376 Result: Appeal dismissed
JUDGMENT
JUDGMENT AMJAD ALI SAHITO, J. The instant Criminal Jail Appeal is directed against the judgment dated 11.11.2021, passed by learned Additional Sessions Judge-I/MCTC, Jacobabad, in CNS Case No.27/2021(Re. The State v. Inayatullah Sakzai) outcome of FIR bearing Crime No.57/2021, offence under section 9(c) of Control of Narcotic Substances Act, 1997, registered with P.S Saddar, Jacobabad, whereby the present appellant has been convicted for an offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to suffer imprisonment for life with pay fine of Rs.200,000/- (Two Lacs) and in default whereof, to suffer Simple Imprisonment for one year, with the benefit of Section 382-B Cr.P.C. 2. The case of the prosecution, in brief, is that on 28.03.2021,a police party of P.S Saddar Jacobabad, led by complainant/ASI Ashique Ali Lashari while on patrolling, received spy information on link road Hamal railway crossing near village Asadullah Rind about a white color Car bearing Registration No.BEC-512 coming from Balochistan through Shikarpur carrying Charas by its driver. Acting on it, the complainant reached at the pointed place and at about 1500 hours apprehended the present appellant/accused being driver of the said Car. On search, he noticed a white color sack on rear seat of the said Car, the same on opening was found containing 40 packets of Charas, each containing two slabs, weighing to be 500/500 grams, making a total of 40 K.Gs which was entirely sealed. Besides this, two currency notes of Rs.500/- and a Nokia mobile phone were also secured from the present appellant/accused. Such mashirnama of arrest and recovery was prepared in presence of mashirs PC Badal Khan and PC Qalati Khan. Thereafter, the accused along
---
## Page 2
with recovery was then taken to police station, where the instant case for an offence punishable under section 9(C) of CNS Act, 1997, was registered against him on behalf of the State. 3. On completion of usual investigation, the investigating officer submitted report under section 173 Cr.P.C before the competent Court of law and thereafter the case papers were supplied to the appellant/accused under such receipt. 4. The charge against present appellant/accused was framed as Exh.3, to which he pleaded not guilty and claimed trial. To prove the charge against the present appellant, the prosecution examined P.W-01 Complainant ASI Ashique Ali Lashari at Exh.04, he produced memo. of arrest and recovery, FIR of the present case and departure/arrival entries at Exh.5/A to 5/D respectively.P.W-02 PC Sajid Ali Jakhrani who deposited the case property with Chemical Laboratory at Karachi at Exh.5, he produced Road Certificate and roznamcha entries at Exh.5/A to C respectively. PW-03 Mashir PC Badal Khan Bhangar at Exh.6, he produced memo of place of vardat at Exh.6/A. PW-04 first I.O/SIP Abdul Rasheed Brohi at Exh.7, produced report of Chemical Examiner at Exh.7/A. PW-05 second I.O/SIP Manzoor Ahmed Domki at Exh.8, he produced an attested copy of serial No.384 of Register No.19 at Exh.8/A. Thereafter, learned State Counsel closed the side of the prosecution vide statement kept on record at Ex.09. 6. The present appellant in his statement recorded in terms of Section 342, Cr.P.C (Exh.10), denied the allegations levelled against him by pleading his innocence, stating therein that he was arrested two days prior to this incident from Tower Jacobabad as suspected Afghani because he was not having his CNIC and the police demanded illegal gratification from him for his release and on his refusal, the police implicated him in this case falsely while real culprits of this case were released, he thus lastly prayed for justice. He, however, neither examined himself on oath in disproof of the charge nor led any evidence in his defence. 7. The learned trial Court after an evaluation of the evidence/material and bearing the counsels for the parties convicted and sentenced the present appellant/accused vide Judgment dated 11.11.2021, which he has assailed before this Court by preferring instant Criminal Appeal through Jail. 8. Per learned counsel, the appellant being innocent has been falsely arraigned in this case; that the alleged Charas has foisted against the present appellant on his failure to grease the palm of police; that the requirement of ingredients, of Section 21 of C.N.S Act has not been complied with in letter and spirit; that ASI has arrested the appellant which is violation of section 21 of CNS, Act; that the Chemical Examiner's report is not with protocol of the test, hence it has lost its sanctity in the eye of law; that there are material contradictions in the evidence of the prosecution witnesses; that the safe custody/transmission of Charas to the Chemical Examiner has also not been established; that the evidence of such interested witnesses requires independent corroboration which is also lacking in present case; that the complainant and his witnesses are police officials and no independent person has been cited to witness the recovery proceedings, which was in clear disregard of mandatory provision of Section 103, Cr.P.C. He lastly contended that the prosecution has miserably failed to prove its case against the appellant and thus he is entitled to his acquittal. In support of his contentions, he relied upon the case laws reported as 2021 SCMR 492; 2021 SCMR 380, 2022 SCMR 1641 and unreported judgments of Supreme Court of Pakistan passed in Criminal Appeal No.579/2017 and Criminal Appeal No.230/2022. 9. In rebuttal to the above, learned Addl.P.G while supporting the impugned judgment has contended that the prosecution has success fully proved its case against the present appellant/accused who was found transporting huge quantity of Charas in a Car; that the police officials has no animosity to foist such a huge quantity of narcotics substance against him of its own, as such, he prayed for dismissal of the instant criminal jail appeal.
---
## Page 3
10. Heard learned counsel for the parties and perused the entire material made available on record. 11. The careful assessm ent of the material brought on record reflects that on 28.03.2021, complainant ASI Ashique Ali Lashari along with his subordinates left PIS Saddar under roznamcha entry No.14 at 1400 hours (Ex.4/C) left the police station for patrolling. At about 1430 hours, they received spy information near village Asadullah Rind that one white color Mehran Car No.BEC-512 was coming towards Shikarpur from Balochistan carrying Charas with its driver. On receipt of such information, they reached link road Hamal railway crossing and stopped the said Car and apprehended its driver who on query revealed his identity to be the present appellant/accused. On search, a white colour sack was secured from the rear seat of the said Car which on opening was found containing 40 packets of Charas, each packet having two slabs, weighing to be 500/500 grams, making a total of 40 K.Gs. Thereafter, the present appellant was arrested under a memo of arrest and recovery which was prepared in presence of mashirs PC Badal Khan and PC Qalati Khan. He has registered FIR against the accused vide entry No.18 at 1630 hours. He produced memo of arrest and recovery Ex.4-A. He has also produced FIR as Ex.4-B. After the registration of the FIR, the recovered case property and copy of the FIR was handed over to SIP/SHO Manzoor Ahmed for investigation. On the very same day, he/complainant has shown the place of occurrence to the I.O of the case, who prepared a memo of the place of incident in the presence of police officials/mashirs. In cross-examination, the complainant denied that two days prior to this incident, the accused was arrested by him from tower road Jacobabad as suspected Afghani and he had demanded- from him illegal gratification of Rs.200,000/- for his release but he failed to fulfill their requirement, hence he was booked in this case falsely. He also denied that he has released the actual culprit of this case while taking huge amount from him. The complainant produced arrival and departure entries as Exh.4/C4/D, which show the movement of the police officials. The complainant also produces the c property viz. Car and running page of recovered car. He also produced all certain relevant documents pertaining to the case, as such, the appellant having prior knowledge has been found responsible for transporting huge quantity of Charas in a sack carried by him through a Car. 12. The prosecution also examined PC Sajid Ali to prove the safe transmission of recovered charas to the office of the Chemical Examiner. PW-2 PC-Sajid Ali deposed that on 05.04.2021 he was posted as PC at PS Saddar, Jacobabad. On the same day SIP Abdul Rasheed handed over the case property viz. charas along with road certificate No.88 to him for depositing the same with the office of Chemical Laboratory Karachi for test and report. The same was deposited by him and returned to P.S vide entry No.27 and handed over R.O to the SIP. His statement was recorded under Section 161, Cr.P.C. He has produced road certificate as Exh.5/A, departure entry No. 35 as Exh.5/B and arrival entry No.27 as Exh.5/C. 13. To support the version of the complainant the prosecution examined the mashir of recovery and arrest PW-3 PC Babal Khan. Who has all most repeated the same story and supported the version of the complainant. However, he has denied the suggestion that due to non-payment of a bribe he has been falsely implicated in this case. Lastly, the prosecution examined the I.O of the case SIP Abdul Rasheed, who has supported the prosecution version. He has recorded the statements of the prosecution witnesses under section 161, Cr.P.C. He has produced Chemical Examiner report as Ex. 7-A and said the same is in positive. He has also produced other relevant documents. 14. As regards the contention of learned counsel for the appellant that the prosecution has failed to prove safe custody and safe transmission of Charas to the office of the Chemical Examiner. It may be mentioned that in the cross-examination of PWs, no such question has been put by the defence that there was tampering with the case property at Police Station or during its transmission to the Chemical Laboratory. Further, the prosecution examined PC Sajid Ali through whom the case
---
## Page 4
property was sent to the office of the Chemical Examiner and the Examiner confirmed that the property was received in sealed condition. In cross-examination PC/he admits that "The case property viz charas was in sealed condition being sealed in white colour cloth". Reliance is placed on the case of Faisal Shahzad v. The State [2022 SCMR 905] and Ajab Khan v. The State (2022 SCMR 317). . 15. The requirement of Rule 4 of Control of Narcotic Substance (Government Analysis) Rules, 2001 is that the reasonable quantity of samples from the entire narcotic drug, psychotropic substance or the controlled substances seized, shall be drawn on the spot of recovery and dispatched to the office in-charge of nearest Narcotic Testing Laboratory for the test either by insured post or through a special messenger. No question was put by the defence counsel that there was tempering with the case property and it is also confirmed by the Chemical Examiner that one sealed cloth parcel containing white plastic bag contains (40) packets each contains (02) dark brown slabs each wrapped in panni received in his office on 06.04.2021 in a sealed condition by the hand of PC Sajid Ali. Further, Rule 5 of Control of Narcotic Substance (Government Analysis) Rules, 2001 provides a condition that it should be received in the sealed condition in the Laboratory. The incharge officer shall observe full protocol by carefully opening and giving a distinct laboratory number. For that, a separate register shall be maintained. All samples shall be passed to the analyst on the same day and kept in safe custody and examine and record, weight in the test memorandum. He will compare the markings on the test Memorandums with the markings on the packages envelopes and will ensure that he tests the relevant sample. Rule 6 of C.N.S (Government Analysts) Rules, 2001 further provides that on analysis, the result thereof together with full protocols the test applied, shall be signed in quadruplicate and supplied forthwith to the sender as specified in Form-11. Now the question here is whether the report received from the office of the Chemical Examiner is according to Rules 4,5 and 6 of C.N.S (Government Analysts) Rules, 2001 or not. The requirement of R.4 is only that the parcel/envelope should be received in the office of Chemical Examiner in a sealed condition. We have perused the Chemical Examiner's report available as Exh.7/A, and in our humble view it is according to its Rule and the full protocol was observed by the office of Chemical Examiner. It is appropriate to reproduce the report received from the office of Chemical Examiner, which reads as under,- Gross Weight: 40.000 Kg. Net Weight: 39.991 Kg. Protocols Followed: The test analysis protocols are in line with United Nation office on Drug and Crime (UNODC) guidelines of 2009 (See page-2) Conclusion: The submitted sample is identified to contain Charas. Physical Appearance: Dark brown slabs. I. Fast Blue B Salt Test: Positive. 16. The procedural detail is mentioned in the Chemical Examiner's report Exh.7/A about the tests applied do not fall short of "protocol". In an unreported case of Mushtaq Ahmed v. The State and others (Criminal Petition No.370 of 2019) the Hon'be Supreme Court of Pakistan has held that; 3... Argument that Forensic report sans protocols as mandatorily required in the case of State v. Imam Bakhsh (2018 SCMR 2039), is beside the point and so is a reference to Rule 6 of the Control of Narcotic Substance (Govt. Analysis) Rules, 2001, for the convenience of reference reproduced below:- "Report of the result of test analysis:- After test or analysis the result thereof together with full protocols of the test applied, shall be signed in quadruplicate and supplied forthwith to the sender as specified in Form-II". The above requires reference to the test applied for analysis, specifically mentioned in Form-II thereof. We have perused the forensic report, relied upon the prosecution, which substantially
---
## Page 5
meets the legal requirements in the following terms:- "Test Performed on Received Item(s) of Evidence 1. Analytical Balance was used for weighing. 2. Chemical spot Tests were used for Presumptive Testing. 3. Case Chromatography-Mass Spectrometry was used for confirmation. Results and conclusions "Item # 01 72.87 gram(s) of blackish brown resinous material in sealed parcel contains Charas" Details mentioned in the Forensic report procedure/test applied do not short of 'protocol' as insisted by this court in the supra case. According to the Oxford English Dictionary, 6th Edition, the expression "protocol" in relation to a forensic test means. "A formal or official statement of a transaction or proceedings; spec, a record of (esp. scientific) experimental observations". 4. It has been argued before us that the report submitted by the Chemical Examiner did not mention the necessary protocols followed or tests applied but we have seen the said report available on the record of the trial court and have found that the said report not only referred to the protocols adopted but also to the tests applied and, thus, we have not been able to find any deficiency in the said report. 17. The next contention raised by the learned counsel for the appellant on the point that the personal search must be conducted in presence of gazetted officer or magistrate and a full report thereof would be communicated within 48 hours immediately to the superior officer, he further added that in the present case the arrest was made by ASI, which is a violation of Section 21 of CNS Act, on sole this score the appellant is entitled for his acquittal. To this, the proper mechanism has been provided in the Control of Narcotics Substance Act, 1997, whereas Section 21 provides "Power of entry, search, seizure and arrest without warrant". While Section 22 provides "Power to seizure and arrest in public place. At this juncture, it is appropriate to reproduce the relevant section. Section 21 of Control of Narcotics Substance Act is reproduced hereunder; "(I). Where an officer, not below the rank of Sub-Inspector of Police or equivalent .authorized in this behalf by the Federal Government or Provincial Government, who from his personal knowledge or from information given to him by any person is of opinion that any narcotic, drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed in any building, place, premises or conveyance, and a warrant for arrest or search cannot be obtained against such person without affording him an opportunity for the concealment of evidence or facility for his escape, such officer may... (a) enter into any such building, place, premises or conveyance. (b)..... (c)..... (d)...... (2).... 18. No doubt, the law requires that an officer not below the rank of Sub-inspector can arrest, enters into a 'building, place premises or conveyance but there is also no binding effect prescribed in the law that an officer below the rank of Sub-Inspector cannot arrest the drug peddlers, transporting narcotics substance and that such activities nowadays have ruined the lives of youngsters, in that situation, the contention of defence counsel to the effect that an officer not below the rank of Sub- Inspector can attest the recovery proceedings, is found unconvincing. In the present case, the complainant being ASI in police while on patrolling along with other police officials received spy information at about 1430 hours that one Mehran Car No. BEC-512 was coming from Baluchistan and going to Shikarpur. The car driver is having charas with him. They started checking at about 1500 hours intercepted car and recovered huge quantity (40 K.Gs) of Charas in a Car driven by the
---
## Page 6
appellant/accused. The entire episode was completed within thirty minutes. The preamble of Control of Narcotic Substance Act, 1997 as a special law is enacted mainly to curb the menace of narcotics in the country. The requirement to obtain a search warrant can be dispensed with in a case where a quick action is required to be taken and it would be difficult to obtain a search warrant or call the Sub-Inspector where due to paucity of time apprehension of narcotics removed or culprits having the chance to escape from the place of incident. Under the provision of clause first of Section 54, Cr.P.C, the police officer can arrest a person in four conditions, (a) The accused is involved in cognizable offence, (b) Against the accused a reasonable complaint has been made for the said offence, (c) A credible information is received by the police officer that he is involved in a cognizable offence, and (d) Reasonable suspicion exists that the said person is involved in the cognizable offence. The object of Section 54, Cr.P.C is to give the widest powers to the police officers to arrest the persons who are involved in cognizable cases and only limitation placed upon their power is the necessary requirement of reasonability and credibility to prevent the misuse the powers by the police officers. Rule 26.1 the Police Rules, 1934 (General Power of arrest) empowers the police officials to arrest without warrant any person who has been concerned in any cognizable offence. Even the provision of sections 20 to 22 of the C.N.S. Act being the directory, non- compliance thereof would not be a ground for holding the trial/conviction bad in the eyes of law. On this ground, the conviction of the appellant cannot.be set aside. The reliance in this context is placed upon case of Zafar v. The State which is reported in (2008 SCMR-1254), wherein the Hon'ble Supreme Court of Pakistan has held that;- "Even the provision of sections 20 to 22 of C.N.S.A being directory, noncompliance thereof would not be a ground for holding the trial/conviction bad in the eyes of law. On this ground, the conviction of the appellant cannot be set aside. Reference in this behalf can be made to the cases of Fida Jan v. The State 2001 SCMR 36; State through A.G Sindh v. Hemjoo 2003 SCMR 881, Karl John Joseph v. The State PLD 2004 SC 394, and Muhammad Younas v. Mst. Perveen alias Mano and others 2007 SCMR 393, wherein it is observed that where provisions of C.N.S.A are directory in nature, non-compliance of the same is not fatal. Even otherwise no evidence has been produced to establish that the place of recovery and arrest was not within the jurisdiction of the police station concerned." 19. The vice-versa Section 26 of Control of Narcotic Substance Act, 1997, also provides protection to the innocent citizen, whenever any person empowered under section 20 or 21 of CNS, Act without any reasonable grounds of suspicion, enters or searches, or causes to be entered or searched building any building, place, premises or conveyance shall be punished. It is appropriate to Reproduce the relevant section which reads as under,- "26. Punishment for vexation entry, search, seizure or arrest.--- Any person empowered under section 20 or 21 who (a) without reasonable grounds of suspicion, enters or searches, or causes to be entered or searched any building, place, premises or conveyance, or (b) vexatiously and unnecessarily detains, search or arrest any person shall be punished with imprisonment for a term which may extent to three years and shall also be liable to fine which may extend to twenty-five thousand rupees. In the present case, no case of vexatious was proved as the present appellant/accused was arrested with the recovery of a sack carried by him containing 40 K.Gs of Charas. 20. Turning to the arguments of learned counsel for the appellant concerning violation of Section 103, Cr.P.C, it would be appropriate to refer to Section 25 of the Control of Narcotics Substances Act, 1997, which reads as under;-. "25. Mode of making searches and arrest.--- The provisions of the Code of Criminal Procedure, 1898, except those of section 103, Cr.P.C shall mutatis mutandis, apply to all searches and
---
## Page 7
arrests in so far as they are not inconsistent with the provisions of sections 20, 21, 22 and 23 to all warrants issued and arrest searches made under these sections. 21. It means that the applicability of Section 103, Cr.P.C in the narcotics cases has been excluded and the non-inclusion of any private witness is not a serious defect to vitiate the conviction. The complainant in his cross-examination has admitted that "during that time no private person had crossed there from to act as mashir. Normally people are avoiding to give evidence against drug peddlers due to fear of their lives. 22. So-far the evidence of the police officials is concerned, they are competent as like other witnesses and their evidence cannot be brushed aside merely on the pretext that they are police officials. They have furnished straightforward and confidence-inspiring evidence and nothing has come on record to show that they have deposed against the appellant maliciously or out of any animus and it cannot be believed that the police officials would plant or foist such a huge quantity (40 K.Gs) of narcotics substance against present appellant at their own resources. It is a well- settled principle of law that the statement of official witness cannot be discarded merely for the reason that they are police officials. The reference in this context is made to the case of Zulfiqar v. The State (2008 SCMR 1254), the Hon'ble Supreme Court of Pakistan has held that,- "Police employees are the competent witnesses like any other witnesses and their testimonies cannot be discarded merely on the ground that they are police officials" 23. In the instant case, no proof of enmity or ill-will with the complainant or the other witnesses has been brought on the record, thus, in the absence thereof, the competence of prosecution witnesses being police officials was rightly believed by learned trial Court. Moreover, a procedural formality cannot be insisted at the cost of completion of an offence and if an accused is otherwise found connected then mere procedural omission and even allegation of improper conduct of investigation would not help the accused. The reference in this context is made to the case of the State/ANF v. Muhammad Arshad (2017 SCMR 283), wherein the Hon'ble Supreme Court of…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.