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Petitioner: BALOCH KHAN VS Respondent: StateHonorable Justice MEHTA KALASH NATH KOHLIAbdul Karim Khan Yousafzai,Gohar Yaqoob Khan Yousafzai, Special Prosecutor, A.N.F.
2006 P Cr
2006 P Cr. L J 902
[Quetta]
Before Muhammad Nadir Khan Durrani and Mehta Kalash Nath Kohli, JJ
BALOCH KHAN and another----Appellants
Versus
THE STATE----Respondent
Criminal Jail Appeal No.39 of 2005, decided on 26th December, 2005.
Control of Narcotic Substances Act (XXV of 1997)---
----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 more than two kilograms---Accused persons, in circumstances, were held liable for the same---Raiding party had conducted raid under the supervision of Assistant Director, Anti-Narcotics Force, whose designation was above the Sub-Inspector---No malice was suggested against raiding party and there appeared to be no violation of S.21 of Control of Narcotic Substances Act, 1997---Prosecution had proved on record that house on which raid was conducted belonged to the brother of accused---Both accused were closely related to each other being uncle and nephew---Was not possible for prosecution to foist such a huge quantity of narcotics---Defence led by accused was also not plausible---Recovery of narcotics from the possession of accused had fully been established---Accused being responsible for recovery of two bundles of narcotics each, sentence of R.I. for seven years each was reduced to that of R.I. for five years each and tine of Rs.30,000 each was reduced to that of Rs.25.000 each---With such modification in the quantum of sentence; appeal against judgment of the Trial Court was dismissed.
Muhammad Hashim v. The State PLD 2004 SC 856 ref.
Abdul Karim Khan Yousafzai for Appellants.
Gohar Yaqoob Khan Yousafzai, Special Prosecutor, A.N.F. for the State.
Date of hearing: 14th December, 2005.
JUDGMENT
MEHTA KALASH NATH KOHLI, J.--- This appeal has been sent by appellants Baloch Khan son of Peer Bakhsh and Asmatullah son of Nasrullah through Superintendent, District Jail, Quetta, against judgment, dated 15th April, 2005, passed by Special Judge (C.N.S.), Quetta, whereby; he has convicted the appellants under section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced them to suffer R.I. for seven years each and to pay fine of Rs.30,000 each, in default of payment of fine, to further undergo S.I. for a period of five months. Benefit of section 382-B, Cr.P.C. was also extended in favour of appellants.
Facts of the case, in brief, are that one Captain Rizwan Khursheed Jarral, Assistant Director, Anti-Narcotics Force wrote a Murasla for registration of case to Incharge Anti-Narcotics Force Police Station, wherein; it was alleged that on 23rd October, 2004, Anti Narcotics Force received a secret information that one person namely Baloch Khan in his house situated at Peer Muhammad Road, Ahmed Shah Street, Hudda along with his companion namely Asmatullah, deal in business of narcotics; on receipt of said information, under the supervision of complainant i.e. Captain Rizwan Khursheed Jarral raiding party comprising of Muhammad Zubair, A.S.-I. constables namely Shakcel Khan, Nasir Javed, Muhammad Akram, Muhammad Ramzan, Waseem Riaz, Talib Hussain and other officials of A.N.F. along with informer, at 1-00 p.m. in official vehicles proceeded towards the place of occurrence. It was further alleged that on the pointation of informer, raid was conducted on the house of Baloch Khan; inside the house, one person came out of one room and by way of climbing upstairs, while trying to escape fell down and sustained injuries, he was holding polythene sack ((f.Ji') and was overpowered, while one other person present in the room and near to him one polythene sack (tc 1.) was also lying, he along with alleged sack was taken into custody. It was further stated that on enquiry, injured person told his name Asmatullah son of Nasrullah caste Lehri, resident of Shaikh Manda, while the other person told his name Baloch Khan son of Peer Bakhsh, caste Lehri. It was further stated that the recovered sack from Baloch Khan was checked and eight bundles rod shaped Charas, weighing 9.5 kilograms, was recovered, samples from each rod (4 grams gross) were separated. for chemical analysis, kept in white cloth and sealed parcel was prepared. while remaining Charas was kept in same sack and sealed parcel was prepared, and; parcels of recovered Charas and sample were taken into possession vide recovery memos., whereas; the sack, which was in possession of injured Asmatullah was checked and seven bundles rod shaped Charas, weighing 9 kilograms was recovered. It was further stated that samples from each rod (4 grams gross) were separated for chemical analysis and sealed parcel was prepared, while remaining Charas was kept in same sack, and sealed parcel was prepared, and were taken into possession through recovery memos. It was further stated that memos. and sealed parcels were signed by witnesses at the spot. It was stated that accused persons have committed offence of possessing narcotics in their possession. Consequent upon said Murasla, F.LR. No.23 of 2004, dated 23rd October, 2004 under section 9(c) of Control of Narcotic Substances Act, 1997 was registered with Police Station Anti-Narcotics Force, Quetta.
After usual investigation, appellants were sent up to face trial before the Special Judge (C.N.S.) Quetta, charge was framed, to which the appellants did not plead guilty and claimed trial. The prosecution, to substantiate accusation against appellants, produced following evidence: --
P.W.1 Captain Rizwan Khursheed, Assistant Director, A.N.F., Quetta (complainant) appeared in witness-box and deposed that on 23rd October, 2004, he was posted in A.N.F. Police Station Quetta; on the same day, secret information was received that at Peer Muhammad Road, Ahmed Shah Street, Hudda, one Baloch Khan deals narcotics business in his house; on receipt of said information, a raiding party was constituted. Witness further deposed that he had also received information that one person namely Asmatullah is also involved in said business. It was deposed that at 1-00 p.m. on the pointation of informer, house of Baloch Khan was raided; on entry of raiding party in the house, one person attempted to escape, but fell down from ladder and sustained injuries, and; was holding a polythene sack, who disclosed his name Asmatullah; said sack was checked and eight bundles rod shaped Charas were recovered, which was weighed and found to be 9 kilograms, while; Baloch Khan was also overpowered from inside the room, who was having one polythene sack containing eight bundles of Charas, weighing 9.5 kilograms. Witness further deposed that pieces from alleged Charas were separated and for chemical analysis and two separate sealed parcels of 4 grams Charas were prepared; remaining Charas was kept in sack and sealed parcel was prepared, witnesses signed the parcels. He further deposed that recovery memos. of recovered Charas were prepared as Exhs.P.1/A and P.1/B, and; Murasla (Exh.P.1/C) was prepared, witness identified his signature on the same; witness identified accused persons present in Court to be the same.
In cross-examination, witness stated that he received information at 11-30 a.m. It was further stated that in Roznamcha, no entry with regard to information was made. Witness stated that Force Commander Brigadier Liaquat All Tor had received information, he further stated that informer had not disclosed the house number. It was stated that they at 12-15 p.m. they had proceeded for raid; he further stated that place of occurrence falls within the jurisdiction of Hudda Police Station. It was stated that raid was conducted in absence of Magistrate, search warrant as well as no private witnesses were associated. It was admitted that shops and residential houses are situated on main road; it was further stated that shops and houses are also located in Ahmed Shah Street; witness further stated that door of alleged house was open, while two persons were standing outside. It was stated that at the time of entrance in the house, neither Nazim/Naib Nazim nor any person of the vicinity was associated; it was further stated that the alleged house consisted upon three rooms. Witness further stated that firstly he along with constables entered in the house; there was wooden upstairs inside the room, it was further stated that accused came out of first room and entered in the second room, while upstairs were fixed. It was denied that there was no ladder in any of the rooms. It was further denied that no person fell down from ladder and sustained injuries. It was stated that first person was arrested within three/four minutes; voluntarily stated that it took twenty/twenty-five minutes in arrest of first accused. It was further stated that there was lot of noise at the time of falling of accused. Witness stated that door of second room opens towards southern side inside the house. He further stated that accused Baloch Khan sent and stood in the second room; he also stated that when they reached in the house, Baloch Khan was present in second room. It was stated that there was mat and other sacks containing limestone in the room. Witness stated that he along with two/three constables had weighed the recovered Charas; he further stated that they had not weighed individual rod, while the same was grossly weighed. Witness stated that he had made sample of seal and wrote case number, while parcels were sealed by constable. It was stated that the recovery memo. with regard to samples obtained for chemical analysis, was not prepared. It as further stated that they were having electronic weighing scale. Witness stated that he himself wrote Murasla as well as memos. It was denied that constable Mubeen Khan had written Murasla and memos. Witness stated that he had not seen exercise equipments in the guest room of the house. It was also denied that on outer side the alleged house, one exercise room is situated. It was further denied that one door of the exercise room opens inside the house. It was admitted that according to Tehsil record, said house is property of Chakar Khan. Witness did not know that said Chakar Khan had rented out the said house to one Shahab-ud-Din son of Mirza Khan; voluntarily stated that Baloch Khan is brother of Chakar Khan. It was denied that at the time of raid, Shahab-ud-Din along with his family was residing in the alleged house. Witness showed his ignorance that outside the house, one of the persons was Shahab-ud-Din, who was present there at the time of raid. It was denied that Baloch Khan along with his brother Chakar Khan is running health club. It was also denied that at time of raid, accused persons were present in the health club. It was further denied that Asmatullah was guest of Baloch Khan and Chakar Khan had gone to bring tea. It was denied that they? entered in the health club from inside, where they had fought with Baloch Khan. Witness denied that he had injured Asmatullah. He did not remember, Baloch Khan is resident of Spini Road. He further denied that real culprits have fled away and accused present in Court have been nominated. He also denied that they had not obtained any sample for analysis. It was denied that he .had manipulated whole proceedings falsely in the police station. Witness denied that he has not deposed correctly.
P.W.2 Waseem Riaz Constable deposed that on 23rd October, 2004, was posted in Police Station A.N.F., Quetta; on the same day, under the supervision of complainant of the case, a raiding party was constituted and at Peer Muhammad Road, Muhammad Shah Street, on pointation of informer, raid was conducted on the house of Baloch Khan. It was further deposed that when raiding party entered in the house, one person attempted to run towards upstairs and became injured, and, was overpowered; at the relevant time, he was holding a sack in his hand, his name was Asmatullah; on checking the sack, seven bundles of rod shaped Charas, weighing 9 kilograms were recovered; four grams Charas was separated for analysis and scaled parcel was prepared, while remaining Charas was kept in polythene sack and sealed, and; was taken into possession through recovery memo.(Exh.P.1/A), witness identified his signature on same. Witness further identified sealed parcel of sack containing Charas as Article 1. (scaled parcel was opened). Witness identified Charas as Article 2 and also identified his signature on parcel. It was further deposed that accused Baloch Khan was present in the room, who was overpowered. It was further deposed that at the relevant time, he was in possession of one polythene sack, containing eight bundles rod shaped Charas, was recovered and weighment was carried out at the spot and found to be 9.5 kilograms; four grams were separated for analysis, remaining Charas was sealed in parcel and was taken into possession vide recovery memo. (Exh.P.1/B), witness identified his signature on recovery memo. Witness also identified sealed parcel (Article 3); (parcel was opened). Witness identified Charas and Article 4 and also identified his signature on same. He identified accused present in Court to be the same.
In cross-examination, witness stated that they were not accompanied by any Magistrate, search warrant or private person. It was admitted that the place where raid was conducted, houses are situated, door of alleged house opens towards southern side, other houses are located on left and right side of the alleged house as well as house were also situated back and front side of the said house. He did not know that there were shops in the street. It was further stated that none from nearby houses was called. Witnesses stated that on entering the house, three rooms were located on left side and inside the gate there was a lawn, witness did not know that apart from above anything existed there. It was further stated that on entering the house, they entered in first room, door of which opens towards northern side; it was further stated that when they entered in the room, accused persons came out and entered in second room through intervening door inside the rooms. It was denied that in second room. there were no stairs. It was stated that accused Asmatullah was firstly overpowered, and followed the accused through intervening door. He did not know that from which way complainant of the case entered in second room. It was stated the upstairs toward roof were located on western side of the room. Witness did not know the number of the alleged house, while it was a Pucca construction. It was further stated that accused fell down from stairs inside the room. at that time he was holding a sack. Witness stated that after arrest of accused Asmatullah, memo. was prepared, search was conducted and Murasla was prepared, thereafter, room was searched, and; his statement was recorded. It was stated that from all the bundles, 4 grams Charas was separated for analysis (counsel appearing for accused stated that samples for analysis were obtained from only two bundles of Charas) (rods of Charas were examined and it was found that from only two bundles, Charas from one rod was separated). It was admitted that one bundle consists upon 100 rods. It was further stated that sample of seal is not in parcel. It was denied that outside the alleged house, there is shop wherein, people used to exercise; voluntarily stated that he had not seen exercise equipments, as he had not gone to that side. It was stated that the door of room from where second sack of Charas was recovered, opens towards northern side. It was further stated that after the arrest of accused Asmatullah, they entered in second room through short way, where his other colleagues i.e. Muhammad Akram and Na'sir Javed etc. had already overpowered accused Baloch Khan. Witness further stated that samples from all the bundles recovered from second room, were obtained (confronted: from two bundles. samples from four rods were obtained). Witness did not know that one rod contains ten grains; voluntarily stated that entire quantity was grossly , weighed. It was further stated that complainant had recovered the Charas, made weighment thereof, prepared memo. parcels and also separated samples for the purpose of analysis, thereafter; accused was personally searched. Witness admitted that parcel does not contain sample of seal. He denied that neither he entered in the house. nor in his presence, Charas was recovered. He further denied that neither any accused ran nor became injured. Witness stated that the complainant of the case had recorded his statement. It was stated that in presence of witness at the time of raid, Inspector Riaz (Investigating Officer) had not come. Witness showed his ignorance that on 15th March, 2004, one Shahab-ud-Din was residing in the alleged house. He further showed his ignorance that on arrival at the place of occurrence, Shahab-ud-Din was standing outside, who thereafter left the place. It was denied that nothing was recovered from inside the house. It was further denied that he had gone in the exercise room, where accused and other persons were present. It was denied that on asking the accused persons about possession of the alleged house, quarrel took place and they had injured Asmatullah. It was further denied that alleged house did not belong to Baloch Khan. It was denied that accused persons have falsely been involved in the case. Witness denied that all the proceedings were made in the police station.
P.W.3 Dr. Ghulam Sarwar, Medical Officer, Civil Hospital, Quetta. He deposed that on 23rd October, 2004, at 8-00 p.m. injured Asmatullah was produced by Zubair A.S.-I. He examined the injured and found following injuries:
"Injuries.
(1) Lacerated wound, frontal region of skull.
(2) Painful right upper arm.
(3) Laceration left hand thumb.
(4) Abrasion right hand.
X-ray shows no any fracture.
Nature of injuries:
Simple fresh and caused by fall."
Witness further stated that he discharged the injured after providing medical treatment and issued certificate (Exh.P.3/A). Witness identified his signature of certificate.
In cross-examination, witness opined that lacerated wound can be sustained by blunt weapon. It was admitted the suggestion that A.N.F. Authorities had informed him that on account of fall, accused sustained injuries; voluntarily stated that accused himself stated that due to falling, he had sustained injuries. It was denied that accused had not told him that he had sustained injuries on account of fall. It was admitted that injuries shown in certificate can be sustained on account of beating.
P.W.4 Riaz Ali, Inspector A.N.F. Quetta appeared in witness-box and deposed that on 23rd October, 2004, he was posted as S.H.O. A.N.F. Police Station; on the same day, on the basis of Murasla (Exh.P.1/C) sent by complainant of the case, he had lodged F.I.R. (Exh.P.4/A) and started investigation. He further deposed that on the same day, he had received document and case property from complainant of the case and memo. (Exh.P.4/B) was prepared, and; on the same day he had recorded statements of witnesses. Witness deposed that he had received medical certificate of injured Asmatullah. It was further deposed that on 24th October, 2004, he along with complainant of the case went to the place of incident and prepared site map (Exh.P.4/C). He further deposed that he had received report of F.S.L. (Exh.P.4/D). He further deposed that he had recorded statements of witnesses and prepared incomplete challan (Exh.P.4/E), and; after receipt of F.S.L. Report, complete challan (Exh.P.41F), was prepared. Witnesses identified his signatures on challan and map, and also identified accused persons present in Court.
In cross-examination, witness stated that at 5-00 p.m. he had started investigation of the case. It was further stated that during course of investigation, he had not recorded statement of Force Commander and had also not taken into possession, copy of Roznameha, wherein; it was mentioned that informer had given any information. It was denied that he had not obtained copy of Roznamcha for the reason that therein it was not mentioned that informer had given information. It was further stated that first of all he had received Murasla in police station. It was stated that Ahmed Shah Street is situated in northern-southern direction, which is surrounded by many houses. It was further stated that the door of house which was raided, opens towards eastern side, on entering the compound, one room situates towards west, while the other rooms located towards south. It was stated that the rooms situated towards south of the compound, amongst which, door of only one room opens in the compound, whereas; the door of room situated towards western side also opens in the compound. It was admitted that two rooms situated towards south, door of only one room opens in the compound. It was stated that from main entrance door, of the house, upstairs are constructed towards northern side in the compound. It was further stated that according to map (Exh.P.4/C). Charas was recovered from place number 3, where accused was present, whereas; place number 4, is a place from where, accused while running, on fall sustained injuries. It was admitted that according to map, there is no upstairs in the room. He further stated that according to map, place number 1 is a place, from where Charas was recovered from accused Baloch Khan. Witness stated that he had recorded statements of witnesses in police station. It was further stated that on 24th October, 2004, he went to the place of incident, the door was open. He also stated that at the time of his arrival, none was in possession of the house; voluntarily stated that after the incident, A.N.F. authorities had locked the house and only door chain was fastened. It was admitted that as per map (Exh.P.41C), there is an exercise room in the alleged house, door of which opens inside the room. It was denied that door of exercise room, opens towards Ahmed Shah Street; it was also stated that exercise equipments were also lying in the exercise room. It was admitted that alleged house is property of Chakar Khan; voluntarily stated that Chakar Khan is elder brother of accused Baloch Khan. It was denied that on 15th March, 2004, Shahab-ud-Din had rented out the alleged house to Chakar Khan. It was denied that Chakar Khan had come to police station and had shown the rent deed. It was further denied that accused Baloch Khan and Chakar Khan were running exercise club in the alleged house, where people used to come. It was also denied that on the day of incident, accused Asmatullah came in the club for meeting the other accused and Chakar Khan had gone to bring tea. It was stated that during course of investigation, he had not recorded statement of any inhabitant of the area with regard to residents of the alleged house, and; also he had neither recorded statements of Nazim nor Naib Nazim. It was denied that as Shahab-ud-Din along with his family was residing in the alleged house, on account of which, he had not recorded statements of Nazims. Witness further stated that he through Mubeen Khan Head Constable had sent parcel for analysis to F.S.L. and had also sent Murasla. He stated that he had written the Murasla on 25th October, 2004. It was admitted that he had only sent samples for analysis, while the remaining Charas was not sent for analysis. It was denied that he had not sent the remaining Charas for analysis, because the recovered material was not Charas. It was further denied that the material sent for analysis was obtained later on. It was also denied that accused persons were not arrested from inside the house. Witness denied that as Shahab?ud-Din escaped from the scene and during course of investigation, they had quarrelled with Baloch Khan. It was further denied that accused Asmatullah was tortured by them, on account of which, he was injured. It was also denied that he had conducted one sided false investigation in the case. Witness showed his ignorance that accused Baloch Khan is resident of Spini Road. He further denied that he has deposed falsely.
After close of prosecution evidence, appellants were examined under section 342, Cr.P.C. wherein; they had pleaded their innocence. They had also made their statements on oath under section 340(2), Cr.P.C. Appellant Baloch Khan deposed that he along with his family are residing at Spini Road, while house of his brother Chakar Khan is situated in Ahmed Shah Street, which was rented out to him by Shahab?ud-Din on 15th March, 2004. He further deposed that Shahab-ud-Din along with his family was residing in the said house, while one room was in possession of his brother Chakar Khan, one door of the room opens inside the house, which is locked from inside the house, while the…
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