Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT RAWALPINDI BENCH

JUDICIAL DEPARTMENT

Criminal Appeal No.99-J of 2016

(Naveed Akhtar v. The State)

JUDGMENT

Date of hearing: 09.07.2018

Appellant by: Raja Muhammad Nasarullah Waseem,

Advocate.
State by: Sheikh Istijabat Ali, District Public Prosecutor
with Tariq SI.

-----------------------------------

Ch. Abdul Aziz, J. Naveed Akhtar (appellant) involved in

case FIR No.206/2015 dated 08.06.2015 registered under section 9
(c) of the Control of Narcotic Substances Act, 1997 (hereinafter
referred to as CNSA, 1997) at Police Station Saddar, District
Jhelum, was tried by learned Additional Sessions Judge/Judge
Special Court CNSA, Jhelum. The learned trial court in terms of
judgment dated 12.05.2016 proceeded to convict and sentence the
appellant in the following terms:-
Under section 9 (c) of CNSA, 1997 to undergo six years RI
with the direction to pay fine of Rs.50,000/- and in default
whereof to further undergo six months SI.
Benefit of section 382-B, Cr.P.C. was also extended in favour
of the appellant.

Challenging his conviction and sentence, the appellant has

filed the instant appeal.
2. Precisely stated the facts of the prosecution case as unveiled
in FIR (Exh.PA) are to the effect that on 08.05.2015 Muhammad
Ashraf SI along with other police officials was present at Muzaffar
Town, Jhelam on official vehicle in connection with patrolling
duty; that in the meantime he received a secret information that a
person was selling heroin near graveyard and could be arrested if
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Naveed Akhtar v. The State

raid was conducted; that on the receipt of such information,

Muhammad Ashraf SI along with other police officials reached the
spot at about 9:30 a.m. and arrested a person who was subsequently
identified as Naveed Akhtar alias Niak (appellant) and from a
plastic bag in his hand, 1020 grams of heroin was recovered; that
out of the said heroin, 5 grams were separated for chemical analysis
and both these parcels were secured vide memo (Exh.PB); that
search of the appellant also led to the recovery of Rs.2,000/- as sale
proceeds of narcotics (Watak amount). Thereafter Muhammad
Ashraf drafted complaint (Exh.PD) which was sent to the Police
Station through Zameer Ahmad 373/C for the registration of formal
FIR.
3. The written complaint (Exh.PD) was transcribed into formal
FIR (Exh.PA) which was chalked out by Sana Hussain ASI (PW.1).
The task of investigating the case was performed by Muhammad
Ashraf SI/complainant (PW.5). He prepared rough site plan of the
place of recovery (Exh.PE), recorded the statements of witnesses
under section 161, Cr.P.C. and submitted report under section 173,
Cr.P.C. Formal charge against the appellant under Section 9 (c) of
CNSA, 1997 was framed on 16.06.2015 to which he pleaded not
guilty and opted to face trial. The prosecution in order to prove its
case produced, in all, five witnesses. Sana Hussain ASI (PW.1)
chalked out the formal FIR. Muhammad Riaz 100/C (PW.2)
received one sample parcel of heroin from Azhar Abbas Moharrar
on 15.05.2015 and delivered it in the office of PFSA on the same
day. Azhar Abbas 135/HC (PW.3) while performing functions of
Station Clerk/Moharrar received two parcels on 08.05.2015 i.e. one
of case property and other of sample heroin and kept the same in
Malkhana for safe custody. He on 15.05.2015 delivered one sample
parcel of heroin to Muhammad Riaz 100/C for onward transmission
to the office of PFSA. Muhammad Iqbal 468/C (PW.4) and
Muhammad Ashraf SI/IO (PW.5) are the witnesses of recovery.
 3 Criminal Appeal No.99-J of 2016
Naveed Akhtar v. The State

Learned Assistant District Public Prosecutor closed the prosecution

case after tendering in evidence report of PFSA (Exh.PF).
4. The learned trial court also examined Naveed Akhtar
(appellant) under section 342 Cr.P.C. He in response to questions
No.10 & 11, replied as under:-
“Q.10. Why this case against you?
Ans. I am totally innocent. The police picked me from my
home and have falsely been involved in this case. Police has
registered present case just to show their efficiency their high
ups. Nothing was received from my possession. All the
recoveries were planted by the police just to strengthen their
case against me.
Q.11. Why P.Ws deposed against you?
Ans. All the PWs are police officials. They were made false
PWs by the I.O. of this case. They deposed falsely because they
know if they retract from their falsely recorded statements U/S
161 Cr.P.C. then they are going to bear departmental action.”

The appellant neither opted to make statement under section

340(2) of Cr.P.C. nor produced any evidence in his defence. On the
conclusion of trial, the appellant was convicted and sentenced as
afore-stated, hence, the instant appeal.
5. It is contended on behalf of appellant that he is innocent and
has been falsely implicated in the case; that though the alleged
recovery of heroin was effected from a public place, however, none
from the vicinity was produced as witness during trial; that the case
was investigated by none other than the complainant himself which
is violative of all norms of justice; that since the task of
investigation was performed by the complainant himself, hence, it
caused prejudice to the appellant as he omitted to bring on record
circumstances which were adverse to the case of prosecution; that
from naked eye it becomes evident that complaint Ex.PD suffers
from menace of tampering; that the recovery witnesses contradicted
each other on all material aspects which rendered their testimony
unworthy of any credence; that though reasonable doubt emerges
from the recital of prosecution evidence, however, its benefit was
not extended to appellant. With these submissions, it was urged that
conviction awarded to the appellant is liable to be set-aside.
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Naveed Akhtar v. The State

6. Learned District Public Prosecutor while controverting the

arguments advanced by other side submitted that a sizeable quantity
of heroin was recovered from the appellant for which he failed to
offer any justification either at investigation stage or during trial;
that though the recovery was effected from a public place, however,
since the provision of 103, Cr.P.C. has been held not applicable to
cases registered under CNSA, 1997 hence, there was no need to
associate two witnesses from the vicinity in the proceedings; that
during trial the guilt of appellant was well established from the
statements of two recovery witnesses, namely, Muhammad Iqbal
468/C and Muhammad Ashraf Gondal SI; that even the safe
custody of recovered heroin and its transmission to PFSA for
analysis was reasonably proved by the prosecution; that this is not
the case of appellant that any of the recovery witness was having
some animosity against him; that prosecution successfully proved
its case beyond any iota of doubt, hence, the judgment of
conviction needs no interference from this Court.
7. Arguments heard. Record perused.
8. It evinces from record that on 08.05.2015 Muhammad Ashraf
Gondal SI (PW.5) alongwith three police officials was present at
Muzaffar Town on his official vehicle in connection with patrolling
duty. He received spy information that a person was selling heroin
in a nearby graveyard and if raided, could be arrested. On receipt of
such information, Muhammad Ashraf SI (PW.5) immediately
proceeded to the spot and at about 9:30 a.m. arrested a person who
was later on identified as Naveed Akhtar alias Niak (appellant) and
from a plastic bag in his hand, 1020 grams of heroin (P.1) was
recovered, out of which, 5 grams were separated as sample for
chemical analysis. Before embarking any further on the merits of
the case, we deem it appropriate to observe here that in order to
bring home the guilt of accused facing trial in cases registered
under CNSA, 1997, the prosecution is generally obliged to prove
following constituents:-
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Naveed Akhtar v. The State

(i) Recovery of narcotics from the accused;

(ii) Safe custody of recovered substance;
(iii) Safe transmission of recovered substance to Government
Analyst/Chemical Examiner;
(iv) The proof that the recovered substance is narcotics/contraband
substance within the purview of CNSA, 1997 and
(v) The quantity of the recovered substance so as to ascertain that
the act of an accused attracts the mischief of which clause of
section 9 of CNSA, 1997.

9. In the above backdrop, an in-depth analysis of the record is

made, from which, it divulges that in order to prove the recovery of
contraband substance from Naveed Akhtar (appellant), two
witnesses, namely, Muhammad Iqbal 468/C and Muhammad
Ashraf Gondal SI (PW.4 & PW.5) appeared in the dock. A wade
through the statements of afore-mentioned two witnesses reveals
that none of them was having any animosity against the appellant as
no such material was put forth during cross-examination. This
feature of the case out-rightly excludes the possibility of false
implication. It is further noticed that both the witnesses narrated
straightforward and confidence inspiring details of the search and
seizure proceedings. The witnesses of recovery remained consistent
regarding the time of their departure from Police Station, the time
and place of intercepting the appellant, the manner in which heroin
was seized, preparation of parcels of recovered substance as well as
its quantity. We have further meticulously examined the record
from which it emerges that even the details of post recovery events
provided by Muhammad Iqbal 468/C (PW.4) and Muhammad
Ashraf Gondal SI (PW.5) were in consonance with each other. So
far as, placing of recovered substance in safe custody and its
forwarding to PFSA for analysis is concerned, it is noticed that
prosecution successfully discharged such obligation. According to
record, recovered heroin was handed over to Mohrrar/Station Clerk,
namely, Azhar Abbas 135/HC (PW.3) by Muhammad Ashraf
Gondal SI (PW.5) on the very day of recovery. The task of
forwarding the samle parcel to PFSA for analysis was assigned to
 6 Criminal Appeal No.99-J of 2016
Naveed Akhtar v. The State

Muhammad Riaz 100/C (PW.2) on 15.05.2015 which was duly

performed by him.
10. We have also given considered thought to the fact that the
case was investigated by the complainant, namely, Muhammad
Ashraf Gondal SI (PW.5). Though this aspect was canvassed by the
learned counsel for the appellant as a ground sufficient for setting
aside the guilty verdict, however, we are not in agreement with
him. In our considered view, there is no legal impediment for
carrying out the investigation of a case registered under CNSA,
1997 by the complainant-police officer. In the absence of any
expressed statutory prohibition, such objection essentially relates to
question of fact. In order to render such investigation as biased, the
appellant was required to come forward with the stance that
Muhammad Ashraf Gondal SI was inimically placed against him
and had some sinister motive in planting narcotic substance against
him. However, it gleans from record that neither during cross-
examination nor in his examination under section 342, Cr.P.C. the
appellant pleaded his implication in the case on account of some
nefarious designs attributable to the complainant of case, namely,
Muhammad Ashraf Gondal SI. In these circumstances, afore-
mentioned objection is not worthy of any credence. We deem it
appropriate to mention here that such objection came up for hearing
before the Hon’ble Supreme Court of Pakistan in case reported as
State through Advocate-General, Sindh v. Bashir and others (PLD
1997 Supreme Court 408) and was dealt with in the following
manner:-
“Adverting to the above first submission of Mr. M.M. Aqil that
since Shamim Ahmed was the complainant in the case as well
as the Investigating Officer, the trial vitiated, it may be
observed that in support of his above submission he has referred
the case of Aksar Khan v. The State (1995 MLD 1237), in
which a learned Single Judge of the Peshawar High Court,
while dealing with an appeal of a convict under section 13 of
the Explosive Substances Act, 1908, inter alia held that a Police
Inspector could not legally assume dual functions as
complainant and also as an Inspector as it had rendered the trial
a sheer mockery. We are unable to subscribe to the above broad
 7 Criminal Appeal No.99-J of 2016
Naveed Akhtar v. The State

legal proposition. There is no legal prohibition for a Police

Officer to be a complainant if he is a witness to the commission
of an offence and also to be an Investigating Officer so long as
it does not, in any way, prejudice the accused person.”

11. As regards, objection of learned counsel for the appellant

regarding non-association of two witnesses from the vicinity of
recovery in reference to section 103, Cr.P.C., suffice it to say that
such argument has no leg to stand. While arriving at such
conclusion, we have in our minds the provision of section 25 of
CNSA, 1997 whereby the provision of section 103, Cr.P.C. is made
inapplicable in recovery of narcotic cases. Thus, in the given
circumstances, non-association of two respectables from the
vicinity, in no manner can be termed as fatal for the case of
prosecution. While embarking upon similar legal proposition, the
Hon’ble Supreme Court of Pakistan in the case of Zafar v. The
State (2008 SCMR 1254), held as under:-
“It would mean that applicability of section 103, Cr.P.C. in the
narcotic cases has been excluded and non-inclusion of any
private witness is not a serious defence to vitiate the
conviction.”

Similar views were expressed by the Hon’ble Apex Court in

the cases Zulfiqar Ahmad v. The State (2006 SCMR 800) and
Muhammad Khan v. The State (2008 SCMR 1616).
12. From the afore-mentioned facts and circumstances, it
reasonably alludes that prosecution has successfully proved the
recovery of heroin from appellant. However, we have noticed an
anomaly which insinuates from the report of PFSA (Exh.PF). It is
noticed with concern that according to prosecution case, 1020
grams of heroin was recovered from the appellant, out of which 5
grams were forwarded to PFSA for analysis. The forwarded sample
of heroin, when weighed in PFSA, it transpired to be 2.37 grams.
Needless to mention here that Punjab Forensic Science Agency is
generally known to have the facility of modern equipments, hence,
there is no reason to doubt the weight of sample heroin as 2.37
grams rather than 5 grams. From above anomaly, we are persuaded
 8 Criminal Appeal No.99-J of 2016
Naveed Akhtar v. The State

to hold that Muhammad Ashraf Gondal SI (PW.5) used a faulty

scale to measure the weight of recovered heroin. Even otherwise, as
per settled principles laid down for appraisal of evidence, the
prosecution is obliged to prove every bit of its case beyond scintilla
of doubt. In this backdrop, prosecution was required to address the
difference of above-referred weight arising out of PFSA report. In
our view, 1020 grams of heroin is to be reduced in same ratio as
weighed by PFSA. As a necessary corollary we are swayed to hold
that 483.48 grams of heroin was recovered from the appellant. It
needs no elaboration that 483.48 grams of heroin attracts the
provision of section 9 (b) of CNSA, 1997. In these circumstances,
the conviction and sentence of the appellant under section 9 (c) of
CNSA, 1997 is set-aside and accordingly he is convicted under
section 9 (b) of CNSA, 1997. In accordance with the sentencing
policy formulated by this Court in the case of Ghulam Murtaza and
another v. The State (PLD 2009 Lahore 362), the appellant is
directed to undergo rigorous imprisonment for 01-year and 07-
months with the direction to pay fine of Rs.13,000/- and in default
whereof to further undergo simple imprisonment for 4-months and
15-days.
13. In the above terms Criminal Appeal No.99 of 2016 is
dismissed.

(Ibad-ur-Rehman Lodhi) (Ch. Abdul Aziz)

Judge Judge

APPROVED FOR REPORTING

(Ch. Abdul Aziz)

Judge
Najum*