' ABDUL QADIR MENGAL, J.--This appeal is arising out of the judgment dated 26th March, 2011 passed by the Special Judge (CNS), Balochistan, Quetta, whereby the appellants were convicted and sentenced under Section 9(c) of the Control of Narcotic Substances Act, 1997 to suffer Life Imprisonment with tine of Rs, 200,000/- (Rupees Two Lacs) each, in default thereof to further suffer SI for one year. However, the benefit of Section 382-B, Cr.P.C. Was also extended in favour of the appellants/convicts.
2. Being aggrieved of the said judgment, the appellants have moved this Court with a prayer that the judgment dated 26th March, 2011 passed by the Special Judge (CNS) Balochislan, Quetta, being illegal, improper therefore liable to be set aside. While the appellant Qadir Dad also prayed for setting aside of the order dated 2nd June, 2010 and 27th October, 2010, whereby the Bank accounts of the appellant No, 2 Qadir Dad were seized and confiscated to the State under Section 37 of the Control of the Narcotic Substances Act, 1997.
3. Briefly stated the facts of the case are that one Naib Subedar Muhammad Ashun on 29th December, 2009 lodged report with Anti-Narcotics Force (ANF), to the effect that on 28th December, 2009, the ANF Force Commander received source information that an international narcotics smuggler Waja Ishaq Beel and his other companions had dumped huge quantity of narcotics in their agricultural lands for transportation and sale purposes. On the basis of said information a raiding party consisting upon the complainant Muhammad Aslam in supervision of Major Habibullah was formed and they started from Quetta and reached to the agricultural, lands of Waja Ishaq Beet situated at Monjia Goth near Peer Bambor District Lasbella and .Found a but situated between the woods which was raided, where they found four persons, out of them three persons were placing narcotics packs in empty water tanks. The narcotics officials arrested three of them, while the fourth, taking the advantage of bushes and trees, escaped from the place of crime. The persons why, were apprehended, were Ali Jan., Qadir Dad and Jamil Ahmed, they disclosed the name of escaped person as Ishaq Beel. The appellants who were placing narcotics packs in water tanks, disclose their intention to smuggle the contraband charas. The said contraband packs of charas were 8904 Kilograms, whereas, seven (07) kilograms of opium was also recovered from the water tanks. Then through Murasila the instant FIR was lodged.
4. After lodging the report and on conclusion of the investigation matter was challaned before the Trial Court/Special Judge(CNS) Balochistan, Quetta. On May, 2010 charge was framed, but the accused pleaded not guilty of the charge and claimed trial.
5. To substantiate the allegation, prosecution produced -three witnesses 'namely Naib Subedar Muhammad Aslam, the complainant (PW-1), Constable Gul Rehman, Recovery Witness (PW-2) and Inspector Khalid-ud-Din, Investigation Officer (PW-3).
6. We have heard Mr. S.A.M. Qadir, Advocate for the appellants, while Mr. Shaukat Ali Rakhshani, Special Prosecutor, ANF for State.
7. Learned Counsel for the appellants mainly contended that the appellants had no concern with the contraband articles, whereas the Anti-Narcotics Force officials wrongly implicated them in the commission of the offence. Further, the accused Ali Jan was tenant of one Baba Shafi and taken twenty acres land on lease to grow wheat and tomato to earn his livelihood. While accused Qadir Dad visited Ali Jan to obtain the loan amount of Rs, 5,000/- (Rupees Five Thousand), where Anti- Narcotics Force officials came and arrested them. The learned counsel describe status of 'Jamil Ahmed as of labourer with Ali Jan who was working in the field when arrested and booked in this matter. It was contended the appellants were involved in the instant case, contrary 'to law and facts, therefore, liable to be acquitted of the charge.
8. Learned counsel for the appellants further argued that in this case the Accounts of Qadir Dad were seized and confiscated by the Court without giving him proper opportunity to establish the contrary.. As Section 39 of the Narcotic Substances Act, 1997, provided framing of Charge to the effect against the accused person, the prosecution has to bring evidence to the effect that such amount or property in fact related to the proceeds of narcotics, but the Court below without taking evidence or giving proper opportunity to the appellant/convict, seized the property only on an application filed under Section 37 of the Narcotic Substances Act, 1997, thereby made an order for its confiscation, therefore, of no legal effect.
9. The Special. Prosecutor ANF opposed the contention of the learned counsel for the appellants and further mentioned that the judgment being legal, proper requires no interference at all. Further no or malafides on part of prosecution has been established, as such, the judgment impugned is not liable to be interfered.
10. We have heard both the sides and perused the impugned judgment in the light of record of the case however, we are of the view that there is no illegality, impropriety, mis-reading and non- reading of the evidence in the impugned judgment passed by learned Special Judge (CNS), Balochistan, Quetta. The evidence and other material-shows that the prosecution evidence was ,not only corroboratory, consonance, but also reliable and confidence inspiring. There is nothing in their evidence which could show any ulterior motive or, design to involve or implicate the accused in the alleged offence. Prima facie, the sole duty lies to the prosecution shoulders to show the recovery of the contraband articles from the culprit or accused and in case of proving of this factum of recovery then responsibility shifts on -the shoulder of accused in view of Section 29 of the Control of Narcotic Substances Act, 1997, to prove this fact that they have no (sic) material Was recoyered from their possession.
' The prosecution' had successfully established the recovery of contraband Charas and opium from the possession of the accused, whose presence on the place of incident was not a denied fact. All the three witnesses specifically stated that Anti-Narcotics Force Commander received source information about the presence of narcotic substance with the accused and transportation of the same out of the country. They also stood constant and firm. About their departure from Quetta as 2.00 a.m. (midnight) and reaching at the site at 6.00 a.m. And presence of the four persons busy in dumping of the narcotics into empty water tanks, not suffered from any contradiction.
11. This evidence of the prosecution was not controverted or rebutted successfully. On the contrary the evidence produced by the appellants in their defence also described their involvement in the commission of the alleged offence. They neither denied their presence at the site nor justify their presence, whereas, record reflects that none of them was permanently residing there, as same is evident from the place of recovery that a but was located in a deserted place between the woods, whereas the Qadir Dad himself admitted that he was not a resident of the place of incident and residing at Turbat, almost 600 Miles away from the place of incident. Though Qadir Dad tried to justify his presence at the site but his statement does not-support his own contention that he came from Turbat to Karachi and from where he proceeded to Balochistan in a place situated between the woods to get Rs, 5,000/- from Ali Jan by spending more than Rs, 5,000/- to reach the place, again nothing has come on record to show that the rest of the accused belong to that area.
12. The presence of, single aid one but Without any other inhabitants fully supports the contention of the prosecution that the contraband material was placed in huge quantity in the empty dried water tanks just to transport the same out of the country, when the recovery was effected, there was no doubt to the extent, therefore, it can safely be relied upon.
13. As such, conviction and sentence awarded to the appellants under Section (sic) 2011, passed by the Special Judge (CNS) Balochistan, Quetta, is maintained and the appeal to this extent is dismissed.
14. However, in the light of the arguments of the learned counsel for the appellants, we are convinced to this effect that the amount lying in the Accounts of Qadir Dad has been improperly seized and confiscated. The learned Judge failed to inquire properly and to adjudicate, upon the application filed under Section 37 of the Control of Narcotic Substances Act: 1997. The learned Judge failed to put substance of the allegation to accused concerned and failed to give him a chance to show that the amount lying in his Account is not the proceed of the Narcotics, so as prima facie, the duty of the Anti-Narcotics. Force Authorities was to collect material to connect the alleged account that was maintaining by the appellant Qadir Dad and showing that the same is result of the proceeds of the narcotics and he had no other means to earn or deposit the amount.
As such the order dated 27th October, 2010 being not legal is set aside. In addition the learned Judge has failed to draw separate order in 'this respect, as such, absence of proper order and reasoning, the order dated 27th October, 2010 could not be confirmed. So as the order passed in respect of case property vide instant judgment dated 26th March, 2011 in respect of the confiscation under Section 39 of the Control of Narcotic Substances Act, 1997 is hereby set aside.
The application filed by the Anti-Narcotics Force under Section 37 of. The Control of Narcotic Substances Act, 1997 be treated as pending before the Court of Special Judge (CNS) Balochistan, Quetta, who is directed to observe the legal formalities as provided under Section 39 of the Control of Narcotic Substances Act, 1997 and decide the matter in accordance with law.
Conviction and Life Imprisonment Upheld.