Safe Custody of Allegedly Recovered Substance “Poast”

Safe Custody of Allegedly Recovered Substance "Poast" Benefit of doubt Case Laws Criminal Appeal Criminal Law Knowledge - Criminal Law Lahore High Court Litigation & Arbitration Narcotics Poast Solutions - Criminal Law Ms. Justice Aalia Neelum in her judgment has decided the issue regarding safe custody of allegedly recovered substance “Poast” in Criminal Appeal No. 2431 of 2010.

1. Haq Nawaz son of Ameer, the appellant was involved in case F.I.R. No.542/2009 dated 01.7.2009, offence under Section 9 (c) of the Control of Narcotic Substances Act, 1997, registered at Police Station City Chiniot, District Chiniot and was tried by the learned Additional Sessions Judge, Chiniot. The learned trial court seized with the matter in terms of judgment dated 15.7.2010 convicted the appellant under Section 6 read with Section 9 of the Control of Narcotic Substances Act, 1997 and sentenced to 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. The benefit of Section 382-B of Cr.P.C was also extended in favour of the appellant. The appellant has assailed his conviction through filing the instant appeal.

2. The prosecution story as alleged in the F.I.R. (Ex.PC/1) lodged on the complaint (Ex.PC) of Zafar Ali, SI/SHO (PW-3)/complainant is that on 08.2.2007 he received spy information that accused-Haq Nawaz is indulged in the business of narcotics and he stored huge quantity in his was opened from where 18 bags containing 50 kilogram poppy straw each were recovered which were taken into possession. The complainant separated 250 grams of poppy straw from each bag and sealed separately for the chemical analysis. The said poppy straw P-1/1-18 was taken into possession by the complainant Zafar Ali, SI vide recovery memo (Ex.PA). On further disclosure by the accused-Haq Nawaz, that he has joint business of poppy straw (Poast) with Jaleel “Pansari”, resident of Mohallah Ghafoor-abad, Chiniot and the same was purchased by them prior to four days of the occurrence against a sum of Rs.10,000/- per bag.

3. The complainant (PW-3) prepared the complaint (Ex.PC) and on the basis of the same, formal FIR (Ex.PC/1) was chalked out by Zafar Abbas 641/HC (PW-4). After registration of FIR (Ex.PC/1), investigation was entrusted to Sarfraz Hussain Shah, Inspector (PW-2) who visited the place of occurrence, prepared the site plan without scale (Ex.PB) and another accused Jaleel in the case and on 14.7.2009 both the accused were sent to judicial lock up. He got prepared the report under section 173 Cr.P.C. against the accused.

4. The learned trial court formally charge sheeted the appellant along with co-accused Jaleel Hamza on 01.02.2010, to which they pleaded not guilty and claimed trial. It is pertinent to mention here that during trial, co-accused Jaleel Hamza moved application under section 265-K Cr.P.C. qua his acquittal which was accepted by the learned trial court on 10.3.2010 and he (co-accused Jaleel Hamza) was acquitted from the charge.

5. The prosecution in order to advance its case, produced as many as six witnesses. Zafar Hussain Shah (PW-2) is the Investigating Officer of the case. Zafar Abbas 641/HC (PW-4) chalked out formal FIR (Ex.PC/1) on receipt of complaint (Ex.PC) and Qazi Hamad Raza, ASI (PW-1) and Muhammad Riaz are witness of the recovery. Faiz Ahmad 296/C appeared as (PW-5) who deposed that on 25.8.2009 Moharrar/HC handed over to him 18 sealed parcels said to contain Poast for onward transmission to the office of chemical examiner which he produced on 26.8.2009 intact. Mumtaz Ali 165/MHC (PW-6) deposed that on 01.7.2009 the Investigating Officer handed over to him 18 sealed parcels with seal of Z.A. along with case property of this case which he handed over the said sealed parcel to Faiz Ahmad constable (PW-5) for onward transmission to the office of Chemical Examiner.

6. On 09.6.2010 the learned Deputy District Public Prosecutor vide his separate statement closed the prosecution evidence while tendering Chemical Examiner report Ex.PD.

7. The appellant was also examined under Section 342, Cr.P.C. wherein he opted not to lead defence evidence and not to appear as his own witness in terms of Section 340(2) Cr.P.C in disproof of allegations levelled against him and while replying to a particular question that why PWs have deposed against him, the appellant made the following deposition:

“PWs are subordinate of I.O. and falsely deposed against me. The police planted false case upon me only to save the accused Jaleel named in the FIR.”

8. After hearing the arguments advanced by the learned counsel for the appellant as well as the learned Deputy District Public Prosecutor on behalf of the State, the learned trial court while evaluating the evidence available on record, found the version of the prosecution as correct beyond any shadow of doubt, which resulted into conviction of the appellant in the above stated terms.

9. The learned counsel for the appellant has submitted that documentary evidence in the shape of Chemical Examiner Report does not reflect that same relates with the samples allegedly taken from the recovered substance. Learned counsel has further submitted that there is sharp contradiction in the evidence of prosecution witnesses and that possibility of tampering with the case property would not be ruled out. The learned counsel for the appellant lastly prayed for kind indulgence of this court in the circumstances.

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