IMTIAZ vs THE STATE
This criminal appeal arises from a judgment of the Additional Sessions Judge-X Peshawar dated 21-5-2005, whereby the appellant was convicted under section 9(c) of the Control of Narcotic Substances Act 1997 and sentenced to life imprisonment with a fine. The core legal question before the Peshawar High Court was whether the mere apprehension of the appellant at some distance from unattended cartons containing narcotics, without establishing any direct or indirect nexus between the appellant and the recovered contraband, was sufficient to sustain a conviction. The court held that the prosecution failed to prove any link or nexus between the appellant and the narcotics, and that a conviction cannot be based on mere inferences or the fact that the accused attempted to run away from a thickly populated area. The High Court laid down the principle that in the absence of connecting evidence and proper investigative steps, such as the preparation of a site plan, the benefit of the doubt must be extended to the accused, resulting in the setting aside of the conviction and the appellant's acquittal.
- Can a conviction for narcotics possession be sustained solely on the basis that the accused ran away from the vicinity of recovered contraband?
- Is mere apprehension of an accused at a distance from unclaimed narcotics sufficient to establish physical possession or control?
- What is the legal effect of the prosecution's failure to establish a nexus between the accused and the recovered case property?
- Section 9(c), Control of Narcotic Substances Act 1997
' TARIQ PARVEZ KHAN, C.J.---On 15-3-2004 at 1300 hours at General Bus Stand Peshawar, on a foot- path there were certain cartons and packets lying which were searched, however, the total narcotics recovered therefrom is 60 Kg Charas Pukhta, 9 Kg. Gardah and 3200 grams opium.
2. It is the case of the prosecution that when Nisar Khan, S.H.O. In the company of Tilla Muhammad (P.W.4) and other police party based on prior information went to the spot they found the above referred cartons lying on foot-path. The man standing nearby, however, started running who was allegedly chased and apprehended who disclosed his name to be Imtiaz the appellant, therefore, whatever was recovered from the cartons is said to be in possession of the appellant.
3. Trial of the appellant has resulted into judgment of conviction dated 21-5-2005 passed by learned Addl. Sessions Judge-X Peshawar who has convicted the appellant under section 9(c), CNSA and sentenced him to life imprisonment and a fine of Rs,2,00,000, in default to suffer six months S.I.
4. We have gone through the statement of Nisar Khan (P.W.2) who admits that except for the fact that appellant ran away from the spot, during his entire investigation he could not make any connection of the cartons with the appellant. He was repeatedly asked,if he could produce any direct or indirect evidence against the accused through which he could connect the accused- appellant with the cartons, his reply was in negative except by stating that since he has run away from the spot, therefore, he is the accused.
5. If one would go through the statement of Tilla Muhammad (P.W.4) who also stated that there would not be any connecting evidence but the apprehension of the appellant from a distance which is about one Furlong from the place where the cartons were recovered.
6. Where prosecution has failed in bringing on record any nexus or link of the narcotics recovered with the appellant and when apprehension is from a distance of one Furlong in a thickly populated area and when no site plan is prepared whereas it was so required in this case so that a court could determine as to under what circumstances the appellant was arrested, mere fact that someone present close to the cartons has run away or tried to run away would be influential evidence whereas no conviction can be recorded on inferences. Therefore, we extend the benefit of doubt to the appellant. This appeal is allowed. Conviction and sentence of the appellant are set aside and he is acquitted of the charge. He be set free from jail forthwith, if not required in any other case. Case property stands confiscated to the State.
Cited by 2 cases
- SHAIR KHAN vs STATE PLJ 2009 Cr.C. (Peshawar) 746
- SHAIR KHAN vs THE STATE 2009 P Cr. L J 523