MIR HAMMAL Versus State

GUL HASSAN TAREEN J.--- Vide judgment dated 04th November, 2022, ("impugned judgment"), the Court of Special Judge, CNSA, Mekran at Turbat ("Trial Court") has convicted the appellant for commission of an offence punishable under section 9(c), the Control of Narcotic Substances Act, 1997 ("CNSA"), vide FIR No. 142/2022, dated 29th June, 2022, registered at P.S. City Turbat and sentenced to suffer four years (R.I.) with fine of Rs. 20,000/-, in default to pay, to further undergo two months' S.I., however, benefit of section 382-B, Criminal Procedure Code, 1898 ("Cr.P.C.") was not extended, being a previous convict.

2. Facts of the prosecution case according to the Murasilla

(Ex: P/1-A), are that on 29th June, 2022, during routine patrol duty, at 05:15 p.m. when the complainant along with police contingent reached near Kech Kor Bridge, the informer conveyed him the information that a person namely Mir Hammal intends trafficking of the narcotic in a Korgane (bag) lying on a CD-70 motorcycle via Kech Kor Bridge Turbat Bazar. On such information, the complainant along with police contingent, near crush plant Chalu Link Road started checking and surveillance. At 05:40 p.m. a person on a CD-70 motorcycle came towards west, whom was intercepted. The person told his name Mir Hammal son of Muhammad Akbar. Two packets baked Charas from each side pocket of the Korgane, lying on the motorcycle, were recovered. On weighing at spot, the recovered four packets were found four kilograms. 5 grams from each packet were separated for chemical analysis and the samples were sealed in parcel Nos. 1 to 4, while the remaining 3980 grams along with Korgane were sealed in parcel No. 5. The report was sent to the police station, upon which formal FIR No. 142/2022 was lodged and investigation was entrusted to S.I. Sher Jan.

3. On completion of the formal investigation, complete challan was sent to the Trial Court. On 25th July, 2022, the appellant was formally charge sheeted to which he pleaded "Not Guilty" and claimed trial. The prosecution produced the following evidence:

PW-1, Sher Jan, SI, the complainant who produced the Murasilla as Ex: P/1-A;

PW-2, Munawar Ali, the recovery witness. He produced the recovery memo of the alleged recovered Charas and motorcycle as Ex: P/2-A and Ex: P/2-B, respectively.

PW-3, Muhammad Rahim H.C, who had taken the parcel Nos. 1 to 4 to the F.S.L for chemical analysis;

PW-4, Zakir Ali, ASI, Head Moharar. He was handed over parcels and he entered the taking over of the parcels in register No. 19 at serial No. 1202; and

PW-5 Muhammad Jan Dashti, the Investigating Officer, he tendered in evidence the FIR (Ex: P/5-A), challan (Ex: P/5-B), conviction slips (Mark: C-1 and March: C-2), the F.S.L reports (Ex: P/5-C to Ex: P/5-F) and complete challan as Ex: P/5-G.

The Trial Court recorded statement of the appellant under section 342, Cr.P.C. The appellant neither made statement on oath in terms of section 340(2), Cr.P.C, nor led any defence evidence. On conclusion of the trial, the Trial Court, held the appellant guilty and, therefore, convicted and sentenced in the aforementioned terms.

4. We have heard Mr. Muhammad Waseem, Advocate for the appellant and Mr. Sudheer Ahmed, Additional Prosecutor General and have gone through the record. The prosecution has produced PW-3 and PW-4 for prove of save custody and safe transmission of the alleged recovered Charas. On 29th June, 2022, the Investigating Officer had handed over parcel Nos. 1 to 5 to the PW-4 for safe custody. According to the PW-4, on 30th June, 2022, he had handed over the parcel Nos. 1 to 4 to the PW-3 for taking them to the F.S.L for chemical analysis. The PW-3 deposed that on 30th June, 2022, the PW-4 had handed over the parcel Nos. 1 to 4 to him for the purpose of chemical analysis, while the Investigating Officer recorded statements of the PW-3 and PW-4, under section 161, Cr.P.C on 23rd July, 2022. The Investigating Officer has recorded their statements with delay of 23 days. The prosecution has not explained the delay of 23 days caused in recording statements of the PW-3 and PW-4, for proving safe custody and safe transmission of the alleged recovered Charas. The unexplained delay casts a serious shadow of doubt and therefore, it can safely be held that the prosecution has failed to prove the safe custody and transmission of the alleged recovery.

5. The In-charge store room appeared as PW-4 and deposed that the Investigating Officer had handed over parcel Nos. 1 to 5 for safe custody and he made an entry of taking over in the register No. 19 at serial No. 1202. Neither the PW-4 produced in evidence the extract of the said entry nor the Investigating Officer made the same as part of the challan. Rule 22.18, the Police Rules, 1934, instructions have been issued regarding custody of a seized property. Sub-Rule (2) of this Rule provides that "all case property and unclaimed property, other than cattle, of which the police have taken possession, shall, if capable of being so treated, be kept in the store room. Otherwise, the officer in-charge of the police station shall make other suitable arrangements for its safe custody until such time as it can be dealt with under sub-rule (1) above.

Each article shall be entered in the store-room register and labeled. The label shall contain a reference to the entry in the store-room register and a description of the article itself and, in the case of articles of case property, a reference to the case number. If several articles are contained in a parcel, a detail of the articles shall be given on the label and in the store-room register."

It is basic rule of evidence, not one of technicality, but of substance that where written document exists, it shall be produced as being best evidence of its own contents. Under the aforementioned police rule, the seized case property is to be entered into a register and then to be kept in the store room. The safe custody of a seized case property can be established when the copy of the register of store room, is formally brought on the record of the Court. Any matter required by law to be reduced to the form of a document, no oral evidence shall be given for proof of that matter except the document itself. In this respect Article 102, the Qanun-e-Shahadat Order-10, 1984 is relevant to be reproduced hereunder:

"102. Evidence of terms of contracts grants and other disposition of property reduced to form of document. When the terms of a contract, or of grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained."

In the instant case, the oral statement of PW-4 to the extent of safe custody, is inadmissible in evidence under Article 102, the Q.S.O for failure of the Investigating Officer to make the said register or copy thereof, as part of the record. The safe custody, in this case, has not been established by the prosecution, through production of register of store room . Hence, the prosecution has failed to prove safe custody of the recovered Charas.

6. In his statement under section 161, Cr.P.C, the PW-4 mentioned that the Investigating Officer had handed over to him parcel Nos. 1 to 4. He had not mentioned taking over of the parcel No. 5. While in his deposition before the Trial Court, the PW-4 deposed that parcel Nos. 1 to 5 were handed over to him. The improvement was duly confronted to the PW-4, to which he replied as under:

"It is correct that my 161, Cr.P.C's statement does not mention, that parcel Nos. 1 to 5 of the instant case, in which parcel Nos. 1 to 4 were of analysis. (inspected, the statement mentions that the seized case property, narcotics parcel Nos. 1 to 4 along with docket, a motorcycle CD-70 red colour was handed over to him).

The improvement was also verified by the Investigating Officer, who stated as under:

"25. It is correct that the handing over of parcel No. 5 is not mentioned in the statement of Moharar. vol: stated that this is a typing error."

"26. It is correct that till today, the said error has not been removed."

The prosecution has alleged that the samples were separated from the four slabs which were sealed in parcel Nos. 1 to 4, while the remaining 3980 grams was sealed in the parcel No. 5. According to 161, Cr.P.C's statement of the PW-4, the parcel No. 5 was not handed over to him by the Investigating Officer, while in Court's statement; he failed to make explanation for the improvement made by him, in his examination-in-chief. The improvement was duly confronted to him under Article 140, the Q.S.O but he and the Investigating Officer failed to tender explanation for not mentioning the factum of parcel No. 5 in his 161, Cr.P.C's statement. Hence, the appellant could not be held guilty for recovery of four kilograms.

7. The Trial Court has withheld the benefit of section 382-B, Cr.P.C to the appellant on the ground that he is a previous convict of an offence under section 9(c), CNSA by the same Court and referred to previous punishment slips Mark: C-1 and Mark C-2. The observation and findings of the Trial Court are absolutely illegal, because in a criminal case, the bad character of an accused is irrelevant under Article 68 of the Q.S.O, unless the evidence of his good character has not been given under Article 67, the Q.S.O. Articles 67 and 68, Q.S.O are reproduced hereunder:

"67. In criminal case, previous good character relevant. In criminal proceedings the fact that the person accused is of a good character is relevant.

68. Previous bad character not relevant, except in reply: In criminal proceedings, the fact that the accused person has a bad character is irrelevant unless evidence has been given that he has a good character, in which it becomes relevant.

Explanation: 1 ..

Explanation 2: A previous conviction is relevant as evidence of bad character."

In this case, the appellant has not made statement on oath nor led any evidence, that he is a person of good character. Unless evidence of good character has been given, evidence of bad character of an accused is irrelevant under Article 68, the Q.S.O. In Civil and criminal cases, evidence may be given of the existence or non existence of a fact in issue and of facts declared as relevant by Articles 19 to 69, the Q.S.O. Any fact which is not a fact in issue or is not relevant, under Articles 19 to 69, the Q.S.O, evidence of such fact is inadmissible under Article 18, the Q.S.O. Relevancy is equal to admissibility. Therefore, the Trial Court has placed reliance and referred to an inadmissible piece of evidence in violation of afore explained legal position.

For the foregoing discussion, the instant appeal is allowed; the impugned judgment is set aside. The appellant Mir Hammal son of Muhammad Akbar is acquitted of the charge, in case FIR No. 142/2022, dated 29th June, 2022, under section 9(c), the Control of Narcotic Substances Act, 1997, P.S. City Turbat. The appellant is in custody, he be set at liberty forthwith, if not required to be detained in any other case.

SA/1/Bal. Appeal allowed.