2025 M L D 1389
[Balochistan]
Before Zaheer- ud-Din Kakar and Shaukat Ali Rakhshani, JJ
GULSHAN BIBI ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 242 of 2023, decided on 7th September, 2023.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9(1), S.No. 3(c) ---Possession of narcotic substances ---Appreciation of evidence --
-Benefit of doubt ---Recovery of contraband not established---Accused was charged for
having in his possession 2300 -grams charas ---To prove the recovery of the contraband
weighing 2300 grams of charas, the prosecution produced Seizing Officer on whose
murasila FIR was registered ---Seizing Officer reiterated the contents of his murasila ---
Female Police Officer testified that on 14.01.2023 at 12:45 am, after receiving phone call she arrived atcrime scene and found the appellant sitting beside the road, having a black polythene bag in her hand, which was checked and found two packets of charas, weighed by Seizing Officer with a digital weighing machine, whereof parcel was
prepared ---Head Constable was the recovery witness, who testified in line with the
deposition of Seizing Officer and Female Police Officer ---Head Constable produced the
recovery memo and a parcel with two packets of 'charas' ---Neither the complainant nor
the recovery witness had utter a single word regarding arrival of the Investigating Officer on the crime scene nor had stated to have handed over the recovered 'charas' and a parcel to Investigating Officer in order to establish the safe custody from the place of recovery to the malkhana ---Although, Investigating Officer had stated to have had
received the parcel from Seizing Officer, but in absence of testimony of Seizing Officer and Female Police Officer, corroborating his testimony would not be safe to rely upon his testimony alone in respect of safe custody of the narcotic, because harsher the punishment, stronger the evidence for establishing the indictment, which seemed to be lacking in the instant case ---Appeal against conviction was allowed, in circumstances.
(b) Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9(1), S.No. 3(c) ---Possession of narcotic substances ---Appreciation of evidence ---
Benefit of doubt ---Safe custody of the recovered contraband not established---Accused
was charged for having in his possession 2300- grams charas ---To substantiate the safe
custody of the narcotics, testimony of malkhana incharge was of high importance ---Said
witness testified that on 14.01.2023, Investigating Officer handed over to him a parcel weighing 2300 grams of 'charas', whereof he made entry in Register No.19--- Police
Constable testified to have had witnessed the handing over of the parcel and making entry in Register No.19 at serial No. 1227--- Said witness produced the recovery memo,
wherein the copy of the extract of Register No.19 was produced--- Deposition of said
witnesses merely established the fact that the narcotic was deposited in the malkhana, handed over by Investigating Officer, whereafter entry was made in Register No.19, but still the question remained as to when and to whom the parcel of narcotic was handed over back for onward transmission to Narcotics Testing Laboratory for chemical analysis ---Such foremost and crucial aspect of the case in order to establish the safe
custody from the malkhana to the Narcotics Testing Laboratory, particularly in the circumstances, when the recovery was effected on 14.01.2023, but the office of the Narcotics Testing Laboratory received the parcel on 17.01.2023, whereof no explanation had been offered by any of the prosecution witness, put a severe dent into the entire process of safe custody and transmission of the narcotic ---Appeal against conviction was
allowed, in circumstances.
The State v. Imam Bakhsh 2018 SCMR 2039; Kamran Shah v. The State 2019 SCMR
1217 and Zafar Khan v. The State 2022 SCMR 864 rel.
Talat Rehman, Rehmatullah Bareach and Abdul Shakoor for Appellant.
Muhammad Naeem Kakar, A.P.G for the State.
Date of hearing: 22nd August, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .--- Veracity and legality of judgment dated 22- 05-
2023 ("impugned judgment") has been called in question by the appellant, penned by learned
Additional Sessions Judge -CNS Court, Loralai ("Trial Court"), whereby the appellant was
convicted and sentenced under Section 9 (1) 3c of Control of Narcotic Substances Act, 1997 ("Act of 1997") to suffer Ten (10) years R.I with a fine of Rs.100,000/ - (one hundred
thousand) and in default of payment of fine to further undergo six (06) months S.I with the premium of Section 382- B of Cr.P.C, emanating from a case vide FIR No.08/2023 (Ex.P/7-
A) registered with Police Station Saddar, Loralai by complainant Muhammad Arif SI (PW -1)
against the appellant for possessing 2300 grams of charas recovered from a black polythene bag held by the appellant in her right hand.
2. Pithily, crime report ibid was lodged on the strength of a murasila (Ex.P/1- A),
averring therein that on 14.01.2023 complainant Muhammad Arif SI (PW -1) along with
police contingent were on patrolling duty, who on a tip off, regarding smuggling of narcotics by the appellant to Punjab at Dera Road Bye -Pass at about 12:40 am, apprehended the
appellant, who was found to be in possession of two packets of charas weighing 2300 grams
in a black polythene bag wrapped in yellow tape, held by the appellant in her right hand.
After usual investigation, the appellant was sent up to the Trial Court to face deeds of
her crime, where on commencement of the trial, the appellant entered the plea of denial, thus,
the prosecution in order to bring home the charge produced a s many as seven witnesses, and after close of the prosecution side, the appellant refuted the allegations so brought as envisaged under section 342 of Cr.P.C, whereafter neither she stepped into the witness box to depose on oath nor produced any evidence in her defence, hence on conclusion of the trial, the trial Court returned a verdict of guilt, whereby convicted and sentenced the appellant in the terms mentioned in para supra.
3. Learned counsel for the appellant inter alia contended that the prosecution has failed
to bring home the charge against the appellant. Added further that the prosecution has miserably failed to discharge the burden of proof of safe custody and transmission of the contraband allegedly recovered from the appellant. They also submitted that infirmities committed by the prosecution witnesses during the recovery and sending the narcotics to FSL has made the entire case of the prosecution highly doubtful, but the learned trial Court has failed to appreciate this aspect of the case, henceforth prayed for acquittal of the appellant.
Conversely, learned APG rebutted the contention of learned counsel for the appellant
and urged that the prosecution has proved the case to the hilt, including the safe custody and transmission and as such the trial Court while appreciating the evidence has rightly held the appellant guilty of the charge. He denied that there are material contradictions, making the case doubtful, thus requested for dismissal of the appeal.
4. Heard. Record perused.
5. To prove the recovery of the contraband weighing 2300 grams of charas, the
prosecution produced Sizing Officer Muhammad Arif SI -SHO (PW -1) on whose murasila
(Ex.P/1 -A) FIR (Ex.P/7 -A) was registered. He reiterated the contents of his murasila.
Hameeda Hayat ASI (PW- 2) testified that on 14.01.2023 at 12:45 am, after receiving phone
call she arrived at the crime scene and found the appellant sitting beside the road, having a black polythene bag in her hand, which was checked and found two packets of charas,
weighed by Seizing Officer Muhammad Arif SI -SHO (PW -1) with a digital weighing
machine, whereof parcel No.1 was prepared. Dur Muhammad HC (PW -6) is the recovery
witness, who testified in line with the deposition of PW -1 and PW -2. He produced the
recovery memo (Ex.P/6- A) and parcel No.1 with two packets of 'charas' as Art.P/1 to
Art.P/6. Neither the complainant nor the recovery witness have utter a single word regarding
arrival of the investigating officer ("IO") (PW -7) on the crime scene nor have stated to have
handed over the recovered 'charas' and parcel No.1 to IO (PW -7) in order to establish the safe
custody from the place of recovery to the malkhana. Although, Dilawar Khan IO (PW -7)
have stated to have had received the parcel from Seizing Officer (PW- 1), but in absence of
testimony of PW -1 and PW -2, corroborating his testimony would not be safe to rely upon his
testimony alone in respect of safe custody of the narcotics, because it is now a trait law that harsher the punishment, stronger the evidence for establishing the indictment, which seems to be lacking in the instant case.
6. To substantiate the safe custody of the narcotics testimony of Dawood Khan ASI
malkhana incharge (PW- 4) is of high importance. He testified that on 14.01.2023, Dilwar
Khan IO (PW -7) handed over him parcel No.1, weighing 2300 grams of 'charas', whereof he
made entry in Register No.19. Akhtar Shah Constable (PW -3), testified to have had
witnessed the handing over of the parcel No.1 and making entry in Register No.19 at serial No.1227. He produced the recovery memo (Ex.P/3- A), wherein the copy of the extract of
Register No.19 was produced as Art.P/1. Their deposition merely establishes the fact that the
narcotics were deposited in the malkhana, handed over by Dilawar Khan IO (PW- 7),
whereafter entry was made in Register No.19, but still the question remains as to when and to
whom the parcel of narcotics was handed over back for onward transmission to Federal
Narcotics Testing Laboratory Balochistan, Quetta ("FNTL, Quetta"), for chemical analysis.
Such foremost and crucial aspect of the case in order to establish the safe custody from the malkhana to the FNTL, Quetta, particularly in the circumstances, when the recovery was effected on 14.01.2023, but the office of the FNTL, Quetta received the parcel on
17.01.2023, whereof no explanation has been offered by any of the prosecution witness, puts
a severe dent into the entire process of safe custody and transmission of the narcotics, which
offends the dictum expounded in the cases of 'The State v. Imam Bakhsh' (2018 SCMR 2039), 'Kamran Shah v. The State' (2019 SCMR 1217) and 'Zafar Khan v. The State' (2022 SCMR 864). For ready reference, the relevant para No.9 of Imam Bakhsh's case is reproduce herein below;
"9. We have noted above that in Criminal Appeals Nos. 523 to 525/2017 and No.22/2018, safe custody and safe transmission of the alleged drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory are not satisfactorily established. The chain of custody begins with the recovery of the seized drug by the Police and includes the separation of the representatives sample(s) of the seized drug and their dispatch to the Narcotics Testing Laboratory. This chain of custody, is pivotal, as the entire construct of the Act and the Rules rets on the Report of the Government Analyst, which in turn rests on the process of sampling and its safe and secure custody and transmission to the laboratory. The prosecution must establish that he chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample(s) and will impair and vitiate the conclusiveness and reliability of the report of the Government Analyst, thus, rendering it incapable of sustaining conviction. This Court has already held in Amjad Ali v. The State (2012 SCMR 577) and Ikramullah v. The State (2015 SCMR 1002) that where safe custody or safe transmission of the alleged drug is not established, the report of the Government Analyst becomes doubtful and unreliable."
[Emphasis supplied]
7. Upshot of the above discussion is that the prosecution has not only failed to bring
home the indictment, but also miserably remained unsuccessful to establish the safe custody and transmission from the place of recovery to the malkhana and then to FNTL, Quetta, particularly in view of the dicta expounded by the Apex Court in the cases referred ibid.
8. For the foregoing reasons, the appeal is allowed, and in consequence thereof the
impugned judgment dated 22- 05-2023, passed by the Trial Court is set aside and appellant
Gulshan Bibi wife of Khalil Ahmed is acquitted of the charge.
The appellant serving sentence be set free, if not incarcerated in any other case.
JK/33/Bal. ` Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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