the-control-of-narcotic-substances-act

2018-11-23

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 LATEST JUDGMENTS ON NARCOTICS  SECTION 9(C) OF SUPERIOR COURTS 

Citation Name : 2018 SCMR 1425 SUPREME-COURT
Side Appellant : ABDUL BASIT
Side Opponent : State

S. 9(c) —Possession of narcotic—Reappraisal of evidence—Benefit of doubt—Prosecution alleged that ten kilograms of charas contained in separate packets was recovered from the possession of accused when he was driving a motorcycle and thereafter upon disclosures made by the accused eighty kilograms of charas and 200 kilograms of charas contained in separate packets had been recovered from some other places to which the accused had allegedly led the police party—According to the recovery witnesses/police official produced by the prosecution the last two recoveries did not pertain to the accused and the substance recovered through such recoveries was owned by a co-accused—Complainant/police official as well as one of the recovery witnesses stated that the memorandum of recovery pertaining to the first recovery had not been prepared at the spot but at some subsequent stage and place, which was a serious lapse on the part of the investigating agency and the recovery officer and because of such lapse there was no guarantee that before preparation of the memorandum of recovery vis-a-vis the first recovery the substance recovered had not been tampered or interpolated with or that the weight of the substance recovered was the same as alleged—In view of such infirmities in the case of the prosecution the benefit of doubt had to be extended to the accused—Conviction and sentence of the accused recorded and upheld by the courts below were set aside and he was acquitted of the charge by extending the benefit of doubt to him—Appeal was allowed accordingly.

Citation Name : 2017 SCMR 1874 SUPREME-COURT
Side Appellant : MUHAMMAD SARFRAZ
Side Opponent : State

S. 9(c) —Possession of narcotic—Reappraisal of evidence—Accused was caught red-handed and charas (narcotic) weighing 5 kilograms contained in 5 packets was recovered from his exclusive possession—Some quantity of narcotics was extracted from each packet and five separate sealed parcels for chemical analysis were prepared and forwarded to the office of the Forensic Science Agency—Report of the Chemical Examiner was positive—Recovery witnesses remained consistent on each and every material point and no material contradiction in their statements was pointed out—Said witnesses had no animosity or ill will towards the accused, hence they had no motive to falsely implicate the accused—Statements of said witnesses were further corroborated by the report of the Chemical Examiner—Although there was a minor delay in sending the sample parcels to the Forensic Science Agency but the rules to that effect were directory and not mandatory—Nothing on record established that the said parcels were ever tampered with rather the evidence led by the prosecution established that the parcels received by the said agency, remained intact—Both the courts below had correctly observed that the prosecution had proved its case beyond any shadow of doubt against the accused—Petition for leave to appeal was dismissed accordingly

Citation Name : 2017 SCMR 1194 SUPREME-COURT
Side Appellant : IMTIAZ AHMED
Side Opponent : State

S. 497(1), proviso—Control of Narcotic Substances Act (XXV of 1997), S. 9(c) —Possession of narcotics—Bail, grant of—Delay in conclusion of trial—Medical grounds—Judge of Trial Court had shown negligent conduct in the progress of the trial, neglecting his obligatory duty to conclude the same in minimum possible time—Accused was in jail for almost 3 years, while conclusion of the trial was not in sight because the prosecution witnesses were not turning up, in spite of coercive process being issued against them—Investigating officer of the case, who was a star witness for the prosecution, was fugitive from law in another criminal case, therefore, conclusion of the trial in the near future could not be expected—Furthermore, the accused was of advanced age and suffered from sickness, and while in custody, he had undergone an eye surgery—Accused was granted bail in such circumstanceS.

Citation Name : 2017 SCMR 531 SUPREME-COURT
Side Appellant : JAVED
Side Opponent : State

S. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c) —Possession of narcotics—Bail, grant of—Accused suffering from physical disability—Allegation against accused was that he was present with the principal accused in a car, which contained 35 kilograms of narcotic (charas)—Accused was a crippled person who had suffered from polio virus and both his legs were not normal—Concession could be granted to an accused who was disabled—Presently there was no clear evidence/material to reasonably establish the connection of the accused with the principal accused, who was still at large and who was in exclusive control of the car, being its owner, and to whom knowledge of the presence of the narcotics could be conveniently attributed—Prosecution could lead evidence at trial to reasonably connect the accused with the constructive knowledge about the presence of the narcotics in the car but on the available record it was not a case where bail could be justifiably refused—Accused was granted bail accordingly.

Citation Name : 2017 SCMR 161 SUPREME-COURT
Side Appellant : MUHAMMAD AKHTAR
Side Opponent : State

S. 497—Control of Narcotic Substances Act (XXV of 1997), SS. 9(c) & 51—Possession of narcotic—Bail, refusal of—Accused had been apprehended red-handed while in possession of bhiki (poast) weighing 30 kilograms and a sample of the recovered substance had subsequently been tested positive by the Chemical Examiner—Prosecution witnesses who had witnessed the alleged recovery had no ostensible reason to falsely implicate the accused in a case of present nature—Case against the accused was also hit by (prohibition contained in) section 51 of the Control of Narcotic Substances Act, 1997—Bail was refused accordingly.

Citation Name : 2016 SCMR 1447 SUPREME-COURT
Side Appellant : DOLAT KHAN
Side Opponent : State

S. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c) — Possession of narcotic—Bail, refusal of—Accused was apprehended along with his co-accused while carrying 2400 grams of charas and 1200 grams of opium—Accused was apprehended at the spot by the raiding party and as per the FIR he himself handed over two packets containing charas and opium to the complainant/police official—Accused had not been able to refer to anything from the record which could suggest that the complainant or any other member of the raiding party had any enmity with the accused—Case of the accused fell within the prohibitory clause of S. 497, Cr.P.C.—Huge quantity of narcotics had been recovered from possession of accused, therefore he was not entitled for the concession of bail—Bail was refused accordingly.

Citation Name : 2016 SCMR 1424 SUPREME-COURT
Side Appellant : ATEEB UR REHMAN @ ATTI MOCHI
Side Opponent : The STATE

S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), SS. 9(b) & 9(c) —Possession of narcotic—Bail, grant of—Further inquiry—Border line case between SS. 9(b) & 9(c) of Control of Narcotic Substances Act, 1997—Accused was allegedly found in possession of 1014 grams of heroin, contained in a shopper/polythene bag—Prosecution, after going through the recovery memo available on the file of police record, could not show whether the recovered heroin was weighed along with the polythene bag or otherwise—If the recovered heroin was weighed along with the polythene bag, prima facie, the weight of the heroin without the polythene bag, might have come to 1000 grams or less, in which eventuality, the case of the accused would fall within the ambit of S. 9(b) of the Control of Narcotic Substances Act, 1997—In such backdrop, the case of the accused was one of further inquiry falling within the purview of S. 497(2), Cr.P.C.—Accused was allowed bail accordingly.

Citation Name : 2016 SCMR 909 SUPREME-COURT
Side Appellant : ABDUL SATTAR
Side Opponent : State

S. 9(c) — Possession of narcotic— Reappraisal of evidence—Sentence, reduction in—Consolidated sample—Charas recovered from accused weighed 42 kilograms which was contained in 21 separate packets and the weight of each packet was two kilograms—Only one consolidated sample weighing 84 grams had been separated for chemical analysis—Weight of only one packet i.e. two kilograms of charas could have been considered against the accused in such circumstances for the purpose of his conviction and sentence—Conviction of accused for an offence under S. 9(c) Control of Narcotic Substances Act, 1997 was maintained but his sentence was reduced to imprisonment for four years and six months along with a fine of RS. 20,000.

Citation Name : 2016 SCMR 806 SUPREME-COURT
Side Appellant : PARA DIN
Side Opponent : State

S. 9(c) —Possession of narcotic—Re-appraisal of evidence—Sentence, reduction in—Consolidated sample—Accused was found in possession of 162 kilograms of charas pukhta contained in 162 packets weighing one kilogram each and charas kham weighing 34 kilograms contained in 34 packets weighing one kilogram each—One consolidated sample of 100 grams was separated from all packets containing charas pukhta and one consolidated sample weighing 50 grams had been separated from all the packets containing charas kham—Only the weight of two packets i.e. two kilograms of charas could be considered against the accused in such circumstances for the purpose of his conviction and sentence—Conviction of accused for an offence under S. 9(c) , Control of Narcotic Substances Act, 1997, was maintained but his sentence was reduced to imprisonment for four years and six months along with a fine of RS. 20,000.

Citation Name : 2016 SCMR 707 SUPREME-COURT
Side Appellant : ABDUL HAMEED
Side Opponent : State

SS. 9(b) & 9(c) —Possession of narcotic—Reappraisal of evidence—Sentence, reduction in—Consolidated sample—Charas recovered from accused was packed in 44 packets weighing one kilogram each—Instead of taking 44 separate samples of the recovered substance only one consolidated sample weighing 200 grams was separated from the recovered substance—Only one kilogram of charas could have been considered against the accused in such circumstances for the purpose of his conviction and sentence—Conviction of accused for an offence under S. 9(c) , Control of Narcotic Substances Act, 1997 was converted into conviction for an offence under S. 9(b) of the said Act, and his sentence was reduced to imprisonment for one year and nine months along with a fine of RS. 13,000.

Citation Name : 2018 YLR 1067 PESHAWAR-HIGH-COURT
Side Appellant : IMTIAZ ALI
Side Opponent : State

S. 9(c) —Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)—Seizure of narcotics—Appreciation of evidence—Benefit of doubt—Chemical analysis—Delay in sending samples of contraband for analysis—Effect—Record showed that alleged recovery of contraband was made on 12.8.2015 but the samples were received in the Forensic Science Laboratory for chemical analysis after five days on 17.8.2015—No evidence was available to prove safe custody of the samples from the date of recovery upto their receipt in the Forensic Science Laboratory—Prosecution produced police official/witness in that regard, who stated that he did not remember the date on which the samples were handed over to him—Delay of five days in sending the sample for examination would cast serious doubt about the prosecution case, benefit of which would resolve in favour of accused—Accused was acquitted by setting aside conviction and sentences recorded by Trial Court in circumstanceS.

Citation Name : 2018 YLR 1067 PESHAWAR-HIGH-COURT
Side Appellant : IMTIAZ ALI
Side Opponent : State

S. 9(c) —Penal Code (XLV of 1860), SS. 170, 419, 420, 468 & 471—Possession of narcotics, personating a public servant, cheating by personation, cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating, using as genuine a forged document—Appreciation of evidence—Benefit of doubt—Prosecution case was that a vehicle driven by the accused, was stopped on the main road, taken to the police station, accused was interrogated there and a plastic sack in a carton, tagged on to bonnet of the vehicle above the engine containing ten packets of heroin, weighing one kilogram each, total ten kilograms was recovered—Reportedly, a card of intelligence agency from the pocket of accused was recovered, which was found fake on verification—Record showed that no recovery was made from the motorcar after it was stopped for checking but at the police station in the presence of police officials other than those present with the complainant at the time of stopping of the vehicle, which made the recovery and the case against the accused doubtful—Testimony of marginal witness was not worthy of reliance in view of his own admission that he was not the eye-witness of the occurrence—Absence of independent witnesses from the general public in spite of prior information to the complainant; and non-production of police officials present with the complainant certainly cast doubt on recovery of the contraband from the car at the police station—Covering of considerable distance by the vehicle, generating heat from the engine, would make the recovery more doubtful, for the reason of heroin changing its very nature in the face of so much heat—Nothing was on the record to establish nexus of the accused with the recovered narcotics, as neither evidence was brought on the record to show him either owner of the car or its driver—Accused was acquitted from the charge under S. 170 Penal Code, 1860 by the Trial Court—State did not file appeal against the said acquittal, which would not only shake the FIR but also would raise question about case and evidence of the prosecution against the accused—Circumstances established that prosecution had failed to prove recovery of narcotics from the possession of the accused, thus accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

Citation Name : 2018 YLR 993 PESHAWAR-HIGH-COURT
Side Appellant : KHAN ZEB
Side Opponent : State

S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), S. 9(c) —Possessing and trafficking of narcotics—Bail, grant of—Further inquiry—Accused was neither shown as owner of vehicle in question, nor driving license had been recovered from him at the time of his arrest, when he was allegedly occupying the driving seat—Role assigned to accused was similar to two co-accused, who had already been released on bail—Role of accused would also be subject to further inquiry making accused entitled to the concession of bail—Mere presence of accused on the driving seat would not, prima facie, establish his involvement or his conscious knowledge regarding presence of narcotics in the vehicle in question—Accused was admitted to post arrest bail, in circumstanceS.

Citation Name : 2018 PCrLJ 1125 PESHAWAR-HIGH-COURT
Side Appellant : AURANGZEB
Side Opponent : State

S. 497—Control of Narcotic Substances Act (XXV of 1997), SS. 9(c) & 51—Possessing and trafficking narcotics—Bail, refusal of—On pointation of accused tablets containing ingredients falling within the definition of controlled and psychotropic substances, were recovered from cavities of motor car driven by accused—Search of house of accused, led to discovery and recovery of a huge quantity of such tablets—Samples from the recovered tablets had been sent to Forensic Science Laboratory and as per report thereof, said tablets contained ingredients, which fell within the definition of controlled and psychotropic substances—Said drug was used in clinical pain relief, but was also used by drug users—Plea of accused was that Forensic Science Laboratory having not been equipped with the skill and equipment, was not competent to examine recovered tablets and give any opinion—Validity—Any discussion on the competency of Forensic Science Laboratory to examine the samples of the recovered tablets and authenticity or otherwise of its report; in the light of the rules framed under the Control of Narcotic Substances Act, 1997, would amount to deeper appreciation falling in the domain of the Trial Court—Witnesses to the recovery proceedings, who had no ill-will or enmity with accused, had fully supported the stance of the seizing Officer—Accused, were prima facie connected with the commission of offence; punishment of which fell within the prohibitory clause of S. 51 of the Control of Narcotic Substances Act, 1997—Petition for bail was dismissed, in circumstanceS.

Citation Name : 2018 PCrLJ 990 PESHAWAR-HIGH-COURT
Side Appellant : SHAZIA
Side Opponent : State

S. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c) —Possessing and trafficking of narcotics—Bail, grant of—Female accused, who was in jail since 30-1-2018 for the alleged recovery of narcotic, was no more required for investigation—No prospect of commencement of trial in near future existed—No strong reason was found to withhold the concession of bail to accused—Accused, was directed to be released on bail, in circumstanceS.

Citation Name : 2018 PCrLJ 467 PESHAWAR-HIGH-COURT
Side Appellant : BACHA KHAN
Side Opponent : State

S. 497— Control of Narcotic Substances Act (XXV of 1997), S. 9(c) —Possession of narcotic drugs—Bail, grant of—Further inquiry—Present case was that of border line between sub-clause (b) and (c) of S. 9, Control of Narcotic Substances Act, 1997—Punishment was to be awarded for the offence to commensurate with the quantity of recovered contraband, therefore, quantum of punishment would be decided by the Trial Court—Whether accused would be liable to maximum punishment in case of proof of guilt after trial and would fall under the prohibitory clause of S. 497, Cr.P.C. was the question requiring further probe—Bail was granted accordingly.

Citation Name : 2018 PCrLJ 225 PESHAWAR-HIGH-COURT
Side Appellant : ASHIQ ALI
Side Opponent : State

S. 497—Control of Narcotic Substances Act (XXV of 1997), S. 9(c) —Possession and trafficking of narcotics—Bail, grant of—Further inquiry—Prosecution case was that while intercepting a passenger vehicle, four packets charas, each weighing one kilogram, totalling four kilograms were recovered from a gas heater lying near the accused-petitioner’s seat— Accused-petitioner claimed its ownership and on cursory interrogation disclosed about concealment of narcotics in it—Record showed that the alleged recovery had not been effected from direct/personal possession of the accused-petitioner rather from a gas heater—In absence of recovery of travelling ticket of the accused-petitioner in the said vehicle, statement of driver, conductor, and any passenger as well as any proof about the ownership of the heater, nexus of the accused-petitioner with the alleged recovered narcotic was yet to be determined after recording evidence—Such circumstances required further probe into the guilt of accused-petitioner—Accused-petitioner was therefore admitted to bail in circumstances.

Citation Name : 2018 MLD 1642 LAHORE-HIGH-COURT-LAHORE
Side Appellant : NAVEED AKHTAR
Side Opponent : State

S. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Sentence, reduction in—Prosecution case was that 1020 grams of heroin was recovered from accused, out of which 5 grams were forwarded to Forensic Science Laboratory for analysis—Forwarded sample of heroin , when weighed in Laboratory, it transpired to be 2.37 grams instead of 5 grams which showed that complainant/Police Officer, used a faulty scale to measure the weight of recovered heroin —Prosecution, was obliged to prove every bit of its case beyond doubt and was obliged to address the difference of said weight—Recovered quantity of 1020 grams of heroin , was to be reduced in same ratio as weighed by Forensic Science Laboratory—Held, that 483.48 grams of heroin was recovered from accused; which quantity of heroin attracted the provisions of S.9(b) of Control of Narcotic Substances Act, 1997—conviction and sentence of accused under S.9(c) of Control of Narcotic Substances Act, 1997 was set aside and he was convicted under S.9(b) of said Act—Accused was directed to undergo rigorous imprisonment for 1 year and 7 months and to pay fine of Rs.13,000.

Citation Name : 2018 YLRN 9 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ALLAH DITTA
Side Opponent : State

S. 9(c)—Criminal Procedure Code (V of 1898), S.103—Possession of narcotic substance—Appreciation of evidence—Private witness was not associated as recovery witness— Effect— Prosecution case was that accused got recovered 1200-gram heroin during the course of investigation of another case—Defense had contended that no private witness was associated to act as mashir of arrest and recovery, which was violation of provision of S.103, Cr.P.C.—Validity—Section 25 of Control of Narcotic Substances Act, 1997 had excluded the applicability of S.103 Cr.P.C.—Association of witnesses from the public was not mandatory in narcotic cases—Appeal against conviction was dismissed in circumstances.

Citation Name : 2018 YLRN 9 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ALLAH DITTA
Side Opponent : State

S. 9(c)—Possession of narcotics—Appreciation of evidence—Prosecution case was that 1200-grams heroin e was recovered from the accused during the course of investigation in another case—Prosecution produced complainant and recovery witness in order to prove the charge against the accused—Statements of said witnesses were coherent and confidence inspiring—Said witnesses had corroborated each other on all material points including date, time and place of occurrence, the quantity of recovered narcotics and the manner in which recovery was effected—Version of the said witnesses was vouched by the report of Forensic Science Agency—Circumstances established that accused was involved in the offence—Appeal against conviction was dismissed accordingly.

Citation Name : 2017 YLR 524 LAHORE-HIGH-COURT-LAHORE
Side Appellant : TAHIR MAHMOOD
Side Opponent : The STATE/ANTI NARCOTICS FORCE

Ss. 9(c) & 25—Possessing and trafficking narcotics—Appreciation of evidence—Sentence, reduction in—Minor contradictions in the evidence of prosecution witnesses, were not of great importance as statements of said witnesses were recorded in the court after about 4 years of the registration of the case—With the afflux of time, it was quite natural that some minor contradictions could occur in the evidence of the witnesses—All the prosecution witnesses remained firm on the material points and they had successfully discharged the initial burden of proving the recovery—When no prejudice was caused to accused, then functioning of complainant in his dual capacity as complainant as well as Investigating Officer, was neither illegal nor unlawful—Case property having been produced before the Trial Court, non-production of car in question, could not be termed as fatal to the prosecution case, as recovery was not effected from any of the secret compartments or cavities of the said car, rather the heroin was recovered from the bags, which were lying in the rear seat—Control of Narcotic Substances Act, 1997, being a special law, having clearly precluded the applicability of S.103 of Criminal Procedure Code, 1898, non-association of public witness during the recovery proceedings, was of no consequence—Accused persons could not furnish any plausible explanation for their false implication in the case—Plea of alibi taken by accused, was not supported by any independent evidence—Prosecution, had discharged the onus of proof by leading cogent and convincing evidence, but accused had failed to the contrary—High Court observed that approach of the court, while dealing with the case of narcotics, should always be dynamic, and court was to overlook technicality in the larger interest of the country and public at large; court had to consider the entire material on record as a whole and, if it was convinced that the case was proved, conviction should be recorded—Prosecution having successfully proved the charge against accused person by leading sufficient and cogent evidence, Trial Court had rightly appreciated the same while recording the conviction of accused under S.9(c) of Control of Narcotic Substances Act, 1997—Accused persons, were first offenders and having no antecedents of any criminal case to their score, death penalty being harsh punishment was converted into life imprisonment with benefit of S.382-B, Cr.P.C., in circumstances.

 Citation Name : 2018 MLD 1642 LAHORE-HIGH-COURT-LAHORE
Side Appellant : NAVEED AKHTAR
Side Opponent : State

S. 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Sentence, reduction in—Prosecution case was that 1020 grams of heroin was recovered from accused, out of which 5 grams were forwarded to Forensic Science Laboratory for analysis—Forwarded sample of heroin , when weighed in Laboratory, it transpired to be 2.37 grams instead of 5 grams which showed that complainant/Police Officer, used a faulty scale to measure the weight of recovered heroin —Prosecution, was obliged to prove every bit of its case beyond doubt and was obliged to address the difference of said weight—Recovered quantity of 1020 grams of heroin , was to be reduced in same ratio as weighed by Forensic Science Laboratory—Held, that 483.48 grams of heroin was recovered from accused; which quantity of heroin attracted the provisions of S.9(b) of Control of Narcotic Substances Act, 1997—conviction and sentence of accused under S.9(c) of Control of Narcotic Substances Act, 1997 was set aside and he was convicted under S.9(b) of said Act—Accused was directed to undergo rigorous imprisonment for 1 year and 7 months and to pay fine of Rs.13,000.

Citation Name : 2018 YLRN 9 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ALLAH DITTA
Side Opponent : State

S. 9(c)—Criminal Procedure Code (V of 1898), S.103—Possession of narcotic substance—Appreciation of evidence—Private witness was not associated as recovery witness— Effect— Prosecution case was that accused got recovered 1200-gram heroin during the course of investigation of another case—Defense had contended that no private witness was associated to act as mashir of arrest and recovery, which was violation of provision of S.103, Cr.P.C.—Validity—Section 25 of Control of Narcotic Substances Act, 1997 had excluded the applicability of S.103 Cr.P.C.—Association of witnesses from the public was not mandatory in narcotic cases—Appeal against conviction was dismissed in circumstances.

Citation Name : 2018 YLRN 9 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ALLAH DITTA
Side Opponent : State

S. 9(c)—Possession of narcotics—Appreciation of evidence—Prosecution case was that 1200-grams heroin e was recovered from the accused during the course of investigation in another case—Prosecution produced complainant and recovery witness in order to prove the charge against the accused—Statements of said witnesses were coherent and confidence inspiring—Said witnesses had corroborated each other on all material points including date, time and place of occurrence, the quantity of recovered narcotics and the manner in which recovery was effected—Version of the said witnesses was vouched by the report of Forensic Science Agency—Circumstances established that accused was involved in the offence—Appeal against conviction was dismissed accordingly.

Citation Name : 2017 YLR 524 LAHORE-HIGH-COURT-LAHORE
Side Appellant : TAHIR MAHMOOD
Side Opponent : The STATE/ANTI NARCOTICS FORCE

Ss. 9(c) & 25—Possessing and trafficking narcotics—Appreciation of evidence—Sentence, reduction in—Minor contradictions in the evidence of prosecution witnesses, were not of great importance as statements of said witnesses were recorded in the court after about 4 years of the registration of the case—With the afflux of time, it was quite natural that some minor contradictions could occur in the evidence of the witnesses—All the prosecution witnesses remained firm on the material points and they had successfully discharged the initial burden of proving the recovery—When no prejudice was caused to accused, then functioning of complainant in his dual capacity as complainant as well as Investigating Officer, was neither illegal nor unlawful—Case property having been produced before the Trial Court, non-production of car in question, could not be termed as fatal to the prosecution case, as recovery was not effected from any of the secret compartments or cavities of the said car, rather the heroin was recovered from the bags, which were lying in the rear seat—Control of Narcotic Substances Act, 1997, being a special law, having clearly precluded the applicability of S.103 of Criminal Procedure Code, 1898, non-association of public witness during the recovery proceedings, was of no consequence—Accused persons could not furnish any plausible explanation for their false implication in the case—Plea of alibi taken by accused, was not supported by any independent evidence—Prosecution, had discharged the onus of proof by leading cogent and convincing evidence, but accused had failed to the contrary—High Court observed that approach of the court, while dealing with the case of narcotics, should always be dynamic, and court was to overlook technicality in the larger interest of the country and public at large; court had to consider the entire material on record as a whole and, if it was convinced that the case was proved, conviction should be recorded—Prosecution having successfully proved the charge against accused person by leading sufficient and cogent evidence, Trial Court had rightly appreciated the same while recording the conviction of accused under S.9(c) of Control of Narcotic Substances Act, 1997—Accused persons, were first offenders and having no antecedents of any criminal case to their score, death penalty being harsh punishment was converted into life imprisonment with benefit of S.382-B, Cr.P.C., in circumstances.

Citation Name : 2017 PCrLJ 668 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ARSHAD MAHMOOD KHAN
Side Opponent : State

S. 9(c)—Possession, import or export, trafficking or financing of narcotic drugs—Appreciation of evidence—Chemical Examiner’s Report—Requirement and evidentiary value—Prosecution had failed to establish the safe custody of the recovered substance and the parcels of samples—Contradictions existed as to deposit of the samples and case property in the Malkhana— Prosecution witnesses had made contradictory statements as to the nature, colour, shape and size of slabs of the recovered Charas Garda—Some of the prosecution witnesses had even stated the recovered substance to be heroin ; whereas, the question put to the accused in his examination under S. 342, Cr.P.C. related specifically to Garda Charas and the Chemical Examiner’s Report had also revealed the parcels of samples separated from the recovered substance to be Charas Garda—Contradictions in statements of the prosecution witnesses as to nature of the recovered substance, in absence of positive and material evidence, could not be regarded as minor and irrelevant—Report of the Chemical Examiner must disclose the procedure on which his opinion is based and the reason in support of the opinion—Report of the Chemical Examiner is no evidence unless the same is supported by reasons—Chemical Examiner’s report, except the opinion that the samples contained Charas, had no other data as prescribed by the law, which being a patent infirmity was fatal to the prosecution case—No evidence existed to connect the Chemical Examiner’s Report with the recovered substance—Prosecution was bound to prove/link evidence with the arrest of the accused; seal of the case property and the samples from the time of its recovery and deposit in the Malkhana and later with the office of Chemical Examiner by examining all the witnesses who remained associated with the entire process—Trial court had committed grave illegality in convicting the accused without any legal evidence available on the record— High Court, setting aside the conviction /sentence, acquitted the accused—Appeal against conviction was allowed accordingly.

Citation Name : 2016 YLR 2385 LAHORE-HIGH-COURT-LAHORE
Side Appellant : SHOAIB KHAN
Side Opponent : State

S. 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Sentence, reduction in—Both the prosecution witnesses being government functionaries, were independent, as well as, unbiased—Both said witnesses gave detailed pen-picture of the process of recovery of huge quantity of narcotic substance from the possession of accused–Said prosecution witnesses were tested on the parameters of lengthy cross-examination, but they remained coherent on salient features and nothing could be brought on record in favour of accused—Neither the investigation carried out by the Investigating Officer was challenged, nor a single circumstance was brought on record to substantiate that the prosecution witnesses had previous ill-will against accused persons—Prosecution had successfully established its case against accused—Defence version, could not be substantiated through any independent circumstance—Trial Court, in view of overwhelming material brought on record was justified in recording conviction against accused persons under S.9(c) of the Control of Narcotic Substances Act, 1997—Contraband narcotic substance recovered from accused which consisted charas was not lethal as heroin —Accused was first offender and there was no previous record of the nature to his credit—Charas recovered being of lesser gravity and magnitude, as compared to heroin , infliction of sentence of imprisonment for life, would be sufficient to meet the dictates of justice—Death sentence awarded to accused, was converted into imprisonment for life—Benefit of S.382-B, Cr.P.C., was also extended to accused.

Citation Name : 2016 YLR 744 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD IMRAN
Side Opponent : State

S. 9(c)—Recovery of narcotic substance—Appreciation of evidence—Benefit of doubt—Place of recovery not in exclusive possession—heroin weighing 1145 grams was recovered from accused who was convicted by Trial Court and sentenced to imprisonment for six years—Validity—Case property was handed over to prosecution witness at 7pm on 14-12-2013 and the same had given rise to a question as to how the parcel was received in concerned office on the same day at or after 7pm because the office did not remain open till such time—Room from where contraband material was recovered at the pointing of accused was not locked when Investigating Officer reached there along with police party to effect recovery—Almirah from which heroin was allegedly recovered at the pointing of accused was also not locked and accessible for other dwellers of the abode—Such had created doubts about veracity of recovery of contraband material at the instance of accused—Single circumstance which created reasonable doubt regarding prosecution case, the same was sufficient to give benefit of the same to accused—High Court extended benefit of doubt to accused person, set aside conviction awarded by Trial Court and acquitted him of the charge—Appeal was allowed under circumstances.

Citation Name : 2016 YLR 92 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD ARSHAD
Side Opponent : State

S. 9(c)—-Prohibition of possession, import or export and trafficking or financing trafficking of narcotic drugs, etc.—Nature and quantity of narcotic substance, determination of—Requirement—Case property kept in manner different from what described by prosecution— Effect— Psychotropic substance not alleged to have been recovered— Psychotropic substance detected during chemical examination of narcotic materials— conviction for psychotropic substance without indictment—Benefit of doubt—Quantum of narcotic substances, determination of—Principles—Huge amount of heroin , charas, weapons with ammunition and cash amount were alleged to have been recovered from accused persons, while they were transporting the same by car—High Court in previous appeal against conviction had remanded case to Trial Court with direction to send case property to Chemical Examiner to ascertain remaining quantity and nature of the same and then to decide the case afresh in light of report of Chemical Examiner and after examining accused under S. 342, Cr.P.C. to the extent of said report—Trial Court, after post-remand proceedings, convicting accused under S. 9(c) of Control Narcotic Substances Act, 1997, sentenced them to imprisonment for life along with fine—Accused, through present appeal, only sought reduction of their sentence—High Court, while remanding previous appeal to Trial Court, had observed that Trial Court had failed to ascertain actual quantity of narcotic substances/case property produced in court and nature of same which was absolutely necessary for just decision of case, and that quantity of narcotics allegedly recovered from accused was relevant factor while deciding case under Control of Narcotic Substances Act, 1997, and that Trial Court, having made observations as to quantity and nature of case property in peculiar circumstances of case, did not send case property for its analysis and allowing de-sealing of same—Trial Court, as directed, sent remaining case property to chemical examiner for chemical analysis and reports whereof revealed that heroin and charas had been detected from case property, but no opium could be detected; psychotropic substance was also detected in suspected parcels of heroin and charas—Trial Court, in its judgment, had stated that plastic Toras in which case property had been secured were not sealed, and alleged packets were not in shoppers as was the case of prosecution, but the same were in white cloth, which reflected that case property was no more intact—Psychotropic substance was of no use for prosecution for the reasons that even if Psychotropic material had been detected from case property, firstly, it was not case of prosecution, secondly, said material was not found sealed and intact when produced before Trial Court, thirdly, matter was remanded to Trial Court but accused were never indicted for recovery of any psychotropic substance from their possession—conviction of accused for said psychotropic substance was not warranted by law—Benefit of every doubt was to be extended to accused—Accused could only be convicted for narcotics as detected by Forensic Science Agency as per report and quantity of sent narcotics for chemical analysis mentioned in said report—High Court, maintaining conviction , sentenced accused to rigorous imprisonment for period already undergone by them; and amounts of fine were reduced—Appeal against sentence was allowed in circumstances.

Citation Name : 2016 MLD 1755 LAHORE-HIGH-COURT-LAHORE
Side Appellant : FATEH MUHAMMAD alias GOGAY KHAN
Side Opponent : State

S. 9(c)—Possession, import and export, trafficking and financing of the trafficking of narcotic drugs etc.—Appreciation of evidence—Quantum of narcotic substances, determination of—Principles—Presumption when separate samples not prepared from each packet of recovered narcotics—Sentence, reduction of—Trial court convicted the accused for eight kilograms of Charas, two kilograms of heroin and two kilograms of opium and sentenced him to undergo life imprisonment along with payment of fine—One kilogram of Charas had been purchased by the prosecution witness from the accused after becoming a fake customer and a separate sample of ten grams had been taken therefrom—Accused, after apprehension, had also led to the recovery of two kilograms of heroin and two kilograms of opium and separate samples of ten grams each had been taken from those narcotic substances—Seven kilograms of Charas was also allegedly recovered from the accused at time of his arrest, which was admittedly not in one packet and the same consisted in many packets—Prosecution/police witness had categorically deposed that he had mixed open and wrapped the seven kilogram of Charas and then taken sample of ten grams from the recovered bulk, so as to render the same into one packet for chemical analysis—In such situation of ambiguity, the only estimation which could be made was that one packet of Charas had been used by the complainant to segregate a sample of ten grams for transmitting the same for chemical analysis—Recovery of only two kilograms of Charas (one kilogram purchased from the accused by the police constable and one kilogram recovered from him at time of his arrest), two kilogram of heroin and two kilogram of opium, could safely be held to have been proved against the accused—High Court observed that where any narcotic substance was allegedly recovered while contained in different packets, wrappers or containers of any kind or in the shape of separate cakes, slabs or any other individual and separate physical form, then a separate sample was to be taken from every separate packet, wrapper or container and from every separate cake, slab or other form for chemical analysis, and if that was not done, then only that quantity of narcotic substance was to be considered against the accused person from which a sample had been taken and tested with a positive result—High Court, maintaining the conviction to the extent of two kilogram of Charas, two kilogram of heroin and two kilogram of opium, reduced the sentence to imprisonment for fourteen years and six months along with fine—Appeal was disposed of accordingly.

Citation Name : 2016 MLD 274 LAHORE-HIGH-COURT-LAHORE
Side Appellant : NASIR WAHEED
Side Opponent : MINISTRY OF INTERIOR through Secretary

R. 2(3)(c)—Control of Narcotic Substances Act (XXV of 1997), S.9(b)—Constitution of Pakistan, Art. 199—Constitutional petition—conviction under S.9(b) of Control of Narcotic Substances Act, 1997—Insertion of name in the Exit Control List—Ingredients—Petitioner was convicted under S.9(b) of Control of Narcotic Substances Act, 1997 for having heroin weighing 135-grams—Passport of petitioner was held by the Government on the basis of said conviction —Validity—Petitioner, after serving out his entire sentence went abroad—No proceedings to include the name of petitioner in the Exit Control List was initiated during such period—Government had inserted the name of petitioner in the Exit Control List after lapse of considerable time of his release—No adverse material qua the activities of the petitioner was on record—Petitioner never remained member of any international gang or group of smugglers in respect of narcotics—Petitioner had to be convicted by competent court of law for insertion of his name in the Exit Control List—Petitioner had served out entire sentence awarded to him by the court of law—Government might insert the name of person in the Exit Control List who was convicted for drug trafficking—Inserting name of petitioner in Exit Control List for 5-years was harsh punishment—Period already undergone by the petitioner would meet the ends of justice—Government was directed to exclude/remove the name of petitioner from Exit Control List forthwith and hand over travelling documents to him immediately—Constitutional petition was allowed in circumstances.