Javaid Khan Versus State

Foreward:

Precise facts forming background of the instant appeal are, the convict appellant was tried by the Court below in FIR No.30/2022 registered at Police Station Barnala in the offence under section 9(C) CNSA dated 13.02.2022 and was awarded the sentence mentioned in the preceding paragraph. The allegation against the convict appellant was, 12 kilograms of contraband was recovered from him. The convict has filed the captioned appeal to assail the conviction recorded by the Court below.

STANCE OF THE APPELLANT:

2.PLD 2012 SC 380.

3.2024 PCr.LJ 592.

4.2025 SCMR 1644.

5.2025 SCMR 1073 and.

6.2025 SCMR 923.

REFUTATION OF THE RESPONDENTS:

We have heard the learned counsel for the parties, gone through the record of the case with utmost care and caution.

COURT OBSERVATIONS AND RELEVANT LAW:

A perusal of the supra provisions of law apparently depict that one of the main striking features provided in the Act, which is distinctive from the general principles of the administration of criminal justice, is that the onus to prove the guilt of the accused has not been placed entirely on the prosecution rather it has to be rebutted by accused to prove his guiltlessness. Hence, when the prosecution absorbed its initial burden to prove the recovery of contraband from conscious possession of accused then its burden shall discharged and would shift upon the shoulders of the accused to prove his/her innocence. Reliance may be placed on 2015 PCr.LJ 1108.

It is even not out of context to mark that in the said Act the general principle of bail recognized from decades have been deviated which are also liable to be followed because Courts are always expected to interpret law as it is and not as it should be. Reliance may be placed on 2009 SCR 345 and 2015 SCR 744. Section 51 of the CNSA which deals with the matter of bail to an accused person charged with an offence under this Act is reproduced as under:-

The above reproduced provision of law imposed a bar on grant to bail in the offences under this Act punishable with death, however, in other offences normally the bail shall not be granted but the Court has the discretion to grant bail if after considering the overall circumstances of the case a fit case for bail is made out, hence, while deciding bail applications in the offences under this Act the Courts must consider and follow the spirit of the supra statute as being sine qua non.

In the instant case the prosecution actualized the recovery of contraband from the possession of the appellant through reliable, convincing, confidence inspiring and trustworthy statements of recovery witnesses, which is further corroborated by the statement of complainant. The defence miserably failed to shake the intrinsic worth of the prosecution testimony on the point of recovery of contraband from the possession of accused rather the prosecution witnesses remained stable and firm on the point of recovery of contraband from the possession of the accused.

The stance taken by the appellant that no private person has been associated therefore, the provisions of Section 103 Cr.P.C. have been violated which makes the recovery doubtful, has got no plausible essence. Under section 25 of the Act, the application of the section 103 Cr.P.C. has been specifically in narcotics cases. For ready reference section 25 is reproduced as under:-

The prosecution version attained further reinforcement from the report of chemical examiner which denoted that recovered material was narcotic (Charas). It is also not out of context to mention that section 30(C) also gave a visible presumption of truth to all the documents produced duly investigation unless the contrary has been proved. Thus, cases of CNSA has to be decided keeping in view of the supra provisions of relevant law. The argument advanced by the learned counsel for the appellant that there is a difference between gross and net weight of the alleged contraband received in the laboratory for chemical examination, hence, the recovery becomes doubtful has also got no essence. As per contents of FIR 60/60 grams of contraband was collected from all the ten recovered packets and parcel No.1 was prepared of total 600 grams contraband which was sent for chemical examination and according to the report of the chemical examiner net weight of the received parcel No.1 was found as 595.10 grams and gross weight which also included the weight of parcel was recovered as 636.21 grams, hence, the difference of gross and net weight is natural which does not create any suspicion in the recovery of contraband, thus the argument is repelled.

The other argument advanced by the learned counsel for the appellant that the register of storeroom has not been presented before the Court below which was a mandatory requirement for proving the safe custody of contraband is misconceived because the defence counsel has not put any question to the concerned witness during cross-examination nor requested the Court for summoning said register, hence, now he cannot take the stance that the prosecution was duty bound to produce the relevant register of the storeroom, so this argument is also repelled.

The next objection raised by the learned counsel for the appellant that material was collected from 10 difference packets but only one packet was sent for chemical examination which is a sheer violation of law has also got no essence because though this act of the prosecution to collect material from difference packets and sent to the laboratory through single packet is not a legal requirement in all cases particularly in case of special Act where no such requirement has been illuminated in the said Act hence it cannot be considered as a mandatory requirement of law and even otherwise the justification given by the learned AAG to meet this objection that normally the police officers are expected to be aware of the nature of contraband and when the contraband in ten packets from the accused was found of the same quality and nature then was sent for chemical examination through single parcel appears to be justified and reasonable on the touchstone of the fact that obviously the chemical examiner has examined the entire material of received parcel before issuance of its certificate and declared it as charas (narcotics), thus, the stance taken by the learned counsel for the appellant that in such situation it cannot be decided that which of the parcels were narcotics and which were containing some other material has got no essence because such question could have been arisen if the chemical examiner opined that some of the material received for chemical examination was not the narcotics, so the objection is overruled.

The minor discrepancies pointed out by the learned counsel for the appellant in the statements of prosecution witnesses are beyond consideration as being a normal human conduct which excluded the element of perfection, hence, are liable to be ignored as the same do not go to the roots of the matter because the prosecution witnesses are unanimous on the time, place and manner of recovery of narcotics from the convict appellant. The objections raised by the learned counsel for the appellant before this Court during the course of arguments, discussed above have also been attended properly by the Court below in the impugned judgment and repelled the same with justified reasons.

After going through the entire prosecution evidence, we are of the considered view that the prosecution has proved the guilt of the appellant to the hilt by producing convincing and trustworthy evidence, all the prosecution witnesses remained stable during cross-examination whereas the defence miserably failed to extricate anything plausible which can put a scare to the prosecution version, hence it can safely be concluded that the allegation levelled in the FIR was substantiated in a legal fashion rather beyond shadow of any reasonable doubt, therefore the conviction recorded by the Court below entails to be maintained and the instant appeal deserves to show the doors.

It is also worthwhile to mark that it is commonly noticed that the Courts despite of the fact that prosecution proves its case beyond any shadow of doubt and the Court observes in like manner but even then the normal penalty provided by law is not awarded and without mentioning any solid mitigating circumstance lesser punishment is imposed rather administration of criminal justice demands that once the prosecution successfully discharges its burden of proving the case beyond any shadow of doubt, it becomes the solemn obligation of the Court to impose a deterrent punishment on the offenders to make the evil doers an example and a cautionary precedent for those harboring similar criminal inclinations because any leniency by the Court while awarding the prescribed penalty of capital offence proved without any shadow of doubt culminates the grave miscarriage of justice. Judicial duty demands that justice be administered impartiality, without unwarranted leniency or deviation from the mandate of law as due in order to ensure that the scales of justice remain balanced. This view finds support from the recent judgment of the Hon'ble Supreme Court rendered in a case reported as 2025 SCR 496.

As stated in the preceding paragraphs under the Control of Narcotic Substances Act, 1997 when the prosecution has discharged its initial burden regarding recovery of narcotics substance from the accused person then it was enjoined upon the accused to bring on record his defence plea that he was innocent and has been roped in with malice intention but in the instant case the accused neither took any specific stance regarding enmity with the complainant or any witness of the occurrence nor could explain his departure from Peshawar to Kashmir thus on this score too, the prosecution evidence entails to be believed. Even otherwise, it is hard to believe that he has been falsely involved in the case of recovery of a huge quantity of 12 kilograms of contraband because for dragging a person into a criminal litigation even a small quantity could be sufficient and managed but not such a huge quantity of narcotics. The case laws referred to and relied upon by the learned counsel for the appellant being of divergent facts, hence, not applicable.

DISPOSAL:

JK/10/AJK H.C Appeal dismissed.