Necessary Elements to Prove Possession of Contraband Substance

Necessary Elements to Prove Possession of Contraband Substance Case Laws Charas-Garda Criminal Appeal Criminal Law Knowledge - Criminal Law Lahore High Court Litigation & Arbitration Narcotics Opium Possession Solutions - Criminal Law Ms. Justice Aalia Neelam in her judgment has decided the issue regarding necessary elements to prove possession of contraband substance in Criminal Appeal No. 1628 of 2011.

1. Muhammad Tariq son of Muhammad Bashir, Caste Sheikh, resident of Bazar 30-Foota, Shehbaz Colony, Khiali Shahpur, District Gujranwala, appellant was involved in case F.I.R. No. 241 of 2007, dated 30.5.2007, offence under Section 9 (c), 15 of the Control of Narcotic Substances Act, 1997, registered at Police Station Peoples Colony, District Gujranwala and was tried by the learned Additional Sessions Judge, Camp at Central Jail, Gujranwala. The learned trial court seized with the matter in terms of judgment dated 12.10.2011 convicted the appellant under Section 9 (c) of the Control of Narcotic Substances Act, 1997 and sentenced him to undergo imprisonment for life with the direction to pay Rs.2,00,000/-as fine and in case of default thereof, further undergo Simple Imprisonment for six months. Benefit of section 382-B of Cr.P.C. was also extended to him. The appellant has assailed his conviction through filing the instant appeal.

2. The prosecution story as alleged in the F.I.R (Ex.PA) lodged on the complaint (Ex.PC) of Muhammad Iqbal Ojla, Inspector/SHO (PW-3) is that on 30.5.2007 he along with other police officials was present in the area of Super Market, Gujranwala. The complainant received spy information that the appellant along with his co-accused, namely, Muhammad Shabbir Ahmad Butt, Muhammad Boota and Jamshaid Ali Khan (since acquitted) are indulged in selling narcotics as well as illegal weapons in huge quantity and if raid is conducted, a bulk quantity of Charas as well as weapons can be recovered. On this information, raid was conducted at the house of Boota co-accused of the appellant. However, co-accused Boota and Shabbir fled away while the appellant was apprehended at the spot. On search of the house, five (5) nylon Toras 157 packets of Charas Garda packed in printed plastic papers of various colours, weighing 160 Kilograms along with one packet of two Kilograms opium, wrapped in plastic papers were got recovered. On further search, 200 bullets of Kalashnikovs and 100 bullets of 244 Bore rifle were also recovered. Out of the recovered “Charas” the complainant separated 10/10 grams from each packet for chemical analysis whereas out of the recovered “Opium” 10-grams were also separated by the complainant for chemical analysis. The samples of Charas, opium and other recovered Charas and Opium along with bullets were taken into possession by the complainant through recovery memo (Ex.PB) which was attested by the PWs. The complainant drafted complaint (Ex.PC) and sent the same through Jehangir 1540/C to the Police Station for registration of the formal FIR (Exh.PA). Zulfiqar Ali, SI reached at the place of recovery and the complainant handed over the accused and the case property and sample to him.

3. Initially, preliminary investigation was conducted by Zulfiqar Ali, S.I. (PW-5) who found the appellant guilty along with other three co-accused persons and challan was sent to the court against the appellant and Jamshaid Ali whereas arrest of co-accused Boota and Shabbir Butt was yet to be effected. Later on, Zafar Ali Shah, Inspector (PW-6) arrested co-accused Boota and Shabbir and their challan was sent. It is pertinent to mention here that during investigation, on the petitions of the accused party, various investigations were conducted and consequently, co-accused Muhammad Boota and Muhammad Tariq, according to the investigation conducted by Muhammad Riaz, SI RIB (PW-1) were not found present at the place of recovery. Thereafter the Investigating Officer recorded statements of Muhammad Ashraf, Moharrar regarding sending of parcel and that of Muhammad Naeem, constable under sections 161 Cr.P.C. regarding depositing of sample parcel in the office of Chemical Examiner, Lahore. Having found the accused guilty, the Investigating Officer prepared report under Section 173 Cr.P.C. and sent the same to the court of competent jurisdiction.

4. The learned trial court formally charge sheeted the appellant on 25.8.2009, to which the appellant along with other co-accused (since acquitted) pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as seven witnesses. Muhammad Iqbal Ojla, Inspector/SHO (PW-3) is the complainant of the case, whereas, Zulfiqar Ali, S.I (PW-5) is the first Investigating Officer of the case, Zafar Ali Shah, Inspector (PW-6) is the second Investigation Officer. Shabbir Ahmad, SI (PW-1) deposed that on 30.5.2007 he performed his duty as Duty Officer and received complaint (Ex.PC) sent by the complainant through Muhammad Jahangir 1504/C and on the basis of which he drafted formal F.I.R. (Ex.PA), Muhammad Ashraf, Moharrar 1733/HC (PW-2) deposed that on 30.5.2007 Zulfiqar Ali, SI/Investigating Officer handed over to him 157 and two opium sealed samples for keeping the same in Malkhana for safe custody and bullets of Kalashnikov and another one sealed parcel containing live bullets of 244 for its onward transmission in the office of Chemical Examiner and he (PW-2) handed over 157 sealed parcels said to contain Charas along with two sealed parcels said to contain opium to Muhammad Naeem, 743/C (PW-7) on 13.6.2007 for onward transmission in the office of Chemical Examiner and he (PW-7) deposited the same on the same day intact. Liaqat Ali, SI (PW-4) along with another Liaqat Ali, SI are the witnesses of the recovery memo Ex.PB. Muhammad Naeem 743/C (PW-7) deposed that on 13.6.2007 Muhammad Ashraf 1733/HC Moharrar handed over to him sample parcels of Charas and opium which he (PW-7) deposited in the office of Chemical Examiner, Lahore on the same day intact.

5. It is pointed out here that on the application moved by the accused persons, the learned trial court summoned Muhammad Riaz, SI as (CW-1) and statement of Muhammad Riaz, SI, Regional Investigation Branch, Gujranwala was recorded who deposed that according to his investigation, presence of the appellant and co-accused Boota was proved at the place of occurrence and they are innocent whereas remaining co-accused are guilty in this case. Thereafter, evidence of Muhammad Iqbal Ojla, Inspector (PW-3) and Liaqat Ali, SI (PW-4) was again recorded after accepting application under section 540 Cr.P.C. filed by the prosecution and consequently, once again statements of the accused persons were got recorded under section 342 Cr.P.C. Liaqat Ali (PW-4) was recalled by the learned trial court on 12.9.2011 who deposed in his deposition that he relied on his previous statement. He, however, further deposed that case property i.e. recovered Charas along with opium, bullets of Kalashnikov and bullets of 244 bore rifle were got recovered by the complainant and the same were taken into possession by the complainant vide recovery memo Ex.PB which was attested by him and one Liaqat Ali, SI. Muhammad Iqbal Ojla, Inspector was also recalled by the learned trial court on 12.9.2011 who deposed in his deposition that he relied on his previous statement too. He further deposed that case property i.e. recovered Charas along with opium, bullets of Kalashnikov and bullets of 244 bore rifle were got recovered by him and the same were taken into possession by him vide recovery memo Ex.PB which was attested by Liaqat Ali, SI (PW-4) and another Liaqat Ali, SI.

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