2025 M L D 716
[Balochistan]
Before Muhammad Hashim Khan Kakar C.J and Shaukat Ali Rakhshani, J
MUHAMMAD ARIF ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 582 of 2023, decided 9th August, 2024.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of charas ---Appreciation of evidence ---Contradictions in the
statements of witnesses ---Prosecution case was that 10 -kilogram charas in ten packets
was recovered from the possession of accused ---Seizing Officer testified that on
18.08.2023, while he was on patrol duty, he apprehended the appellant at about 07:30
p.m in the evening, carrying a commando colour shawl on his shoulder, and on searching him 10 packets of 'charas' wrapped in yellow tape, each weighing 1000 grams were found---From each packet 10 grams of 'charas' was extracted for analysis and parcels Nos.1 to 10 were prepared, whereas remaining 9900 grams of 'charas' was put in parcel No.11---Police Constable, who was member of the raiding party, was also recovery
witness of the said parcels of narcotics, which were secured through recovery memos ---
Said witness produced parcels Nos.1 to 10 and samples of Forensic Science Laboratory contained therein ---Said witness also produced parcel No.11, specimen of seal,
contraband and shawl ---Surprisingly, Moharar, who was in- charge malkhana, altogether
contacted both of the said witnesses and testified that on 18.08.2023 at 10.30 p.m. at night, Investigating Officer came to the police station along with complainant and appellant from whom ten (10) kg of narcotics were recovered, whereof parcels were prepared, which were handed over to him, whereof he made entry in Register No.19 at serial No.260--- Such contradictions had created doubt as it was hard to determine
whether the said parcels were made on the spot or in the police station---Appeal against conviction was allowed, in circumstances.
(b) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of charas ---Appreciation of evidence ---Safe custody of narcotic
and its transmission for chemical analysis doubtful ---Prosecution case was that 10 -
kilogram charas in ten packets was recovered from the possession of accused ---Muharer
of the police station did not state in his deposition that as to whom and when the samples of narcotics were handed over for onward transmission to the Forensic Science Laboratory---Moreover, complainant in his statement also did not state as to whom he handed over the recovered narcotics after the recovery ---Similarly, Investigating Officer
also did not state in his deposition that who took the samples of narcotics from malkhana for its onward transmission to the Forensic Science Laboratory, making the safe custody and transmission of the samples doubtful ---Appeal against conviction was allowed, in
circumstances.
The State v. Imam Bakhsh 2018 SCMR 2039 and Kamran Shah v. State 2019 SCMR
1217 rel.
Muhammad Rashid Ayub for Appellant.
Habibullah Gul, Additional Prosecutor General ("APG") for the State.
Date of hearing: 6th August, 2024.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .---Appellant has called in question the veracity
and legality of judgment dated 07- 12-2023 ("impugned judgment") rendered by learned
Special Judge CNS, Kalat ("Trial Court"), whereby the appellant was convicted under section
6 of the Control of Narcotic Substances Amendment Act of 2022 ("Act of 2022") and sentenced under section 9- (1)3-c of the Act of 2022 to suffer twenty (20) years RI with a fine
of Rs.800,000/ - (rupees eight hundred thousand) and in default of payment of fine to further
undergo six (6) months S.I with the premium of Section 382- B of the Criminal Procedure
Code, 1898 ("Cr.P.C."), emanating from a case vide FIR No.48 of 2023 (Ex.P/4- A)
registered with Police Station, Surab.
2. Facts of the case, succinctly required for determination of the appeal in hand are that
complainant Ghulam Sarwar SI (PW -1) lodged the FIR ibid on the basis of murasila (Ex.P/1-
A), averring therein that on 18.08.2023, he along with police contingent were on patrolling duty and when at about 07:30 pm, they reached damb bridge rainy canal area, they saw a suspicious person, who was carrying something on his shoulder in a commando colour
shawl, who on seeing the police party tried to escape, but was apprehended; on his personal
search, ten (10) packets of baked 'charas' wrapped in yellow tape were recovered from his
shawl, each weighing 1000 grams, total 10,000 grams, whereof 10- 10 grams from each
packet were extracted for chemical analysis and put in parcel Nos.1 to 10, whereas the remaining 'charas' weighing 9900 grams was sealed in parcel No.11.
After necessary investigation, the appellant was sent up to the trial Court to face the
deeds of his culpability, where on commencement of the trial, the prosecution in order to drive home the charge produced as many as four witnesses. The appellant was examined under section 342 of Cr.P.C., who denied the allegations and professed innocence. He neither opted to record his statement on oath nor produced any defence witness, thus the Trial Court culminated a verdict of guilt, whereby the appellant was convicted and sentenced vide impugned judgment in the terms mentioned in para supra.
3. Learned counsel for the appellant inter alia contended that the appellant is innocent,
who has falsely been roped in the instant case and that the prosecution has failed to prove the recovery of the contraband. He maintained that safe custody and transmission from place of recovery to the Federal Narcotics Testing Laboratory Balochistan, Quetta ("FNTL Quetta") has not been proved. Asserted further that there are material contradictions in the statements of prosecution witnesses, making the instant case highly doubtful and the impugned judgment unsustainable, which merits to be set at naught.
Adversely, learned APG strongly resisted the contentions of the learned counsel for
appellant and urged that the prosecution has proved its case beyond any reasonable doubt. He maintained that the prosecution has proved the safe custody and transmission of the contraband without any glimpse of doubt on the basis of trustworthy and confidence inspiring evidence, thus requested for dismissal of the appeal.
4. Heard. Record scanned cover to cover.
5. Ghulam Sarwar (PW -1) is the Seizing Officer. He testified that on 18.08.2023, while
he was on patrol duty, he apprehended the appellant at about 07:30 p.m in the evening, near Damb bridge, rainy canal area carrying a commando colour shawl on his shoulder, which was checked, containing 10 packets of 'charas' wrapped in yellow tape, each weighing 1000 grams, wherefrom each packet, 10 grams of 'charas' were extracted for analysis and parcel Nos.1 to 10 were prepared, whereas remaining 9900 grams of 'charas' we re put in parcel
No.11. Constable Muhammad Ayub (PW -2) was member of the raiding party. He is also
recovery witness of the said parcels of narcotics, which were secured through recovery
memos. (Ex.P/2 -A) and (Ex.P/2 -B). He produced parcels Nos.1 to 10 and samples of FSL
contained therein as Art.P/1 to Art.P/20. He also produced parcel No.11, specimen of seal, contraband and shawl as Art.P/20 to Art.P/33. Surprisingly, Muhammad Azeem Mohrar
(PW -3), who was in- charge malkhana, altogether contacted both of the said witnesses. He
testified that on 18.08.2023 at 10.30 p.m. at night, Investigating Officer ("IO") Abdul
Rasheed (PW- 4) came to the police station along with complainant (PW -1) and appellant
Muhammad Arif from whom ten (10) kg of narcotics were recovered, whereof parcels were prepared, which were handed over to him, whereof he made entry in Register No.19 at serial No.260. The contradictions highlighted has created doubt for it is hard to determine that whether the said parcels were made on the spot or in the police station.
6. Above all, the prosecution has also failed to prove the safe custody of the narcotics
from the place of recovery to the malkhana and onward transmission to the FNTL, Quetta for analysis. Muhammad Azeem (PW- 3) did not state in his deposition that as to whom and
when the samples of narcotics were handed over for onward transmission to the FNTL, Quetta. Moreover, complainant Ghulam Sarwar (PW -1) in his statement also did not state as
to whom he handed over the recovered narcotics after the recovery. Similarly, Abdul Rasheed IO (PW- 4) also did not state in his deposition that, who took the samples of
narcotics from malkhana for its onward transmission to the FNTL, Quetta, making the safe
custody and transmission of the samples doubtful.
7. The discrepancies and contradictions in the statements of the PWs discussed
hereinabove have cast doubts in the recovery of narcotics as well as in the process of safe
custody and onward transmission to the FNTL, Quetta. In this regard, we are fortified with
the view expounded in the cases of "The State v. Imam Bakhsh" (2018 SCMR 2039) and "Kamran Shah v. The State" (2019 SCMR 1217). For ease of reference, the relevant para 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 rests 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 added]
Similarly, the apex court in the case of "Ahmed Ali v. The State" (2023 SCMR 781)
held that a single or a slightest doubt, if found reasonable would be sufficient to entitle the accused of its benefit, not as a matter of grace and concession, but as a matter of right.
8. In wake of the above discussion, we arrived at a firm conclusion that the prosecution
not only miserably failed to prove the recovery, but also fell short to prove the safe custody and transmission, making the entire case highly doubtful.
9. Above are the reasons of our short order dated 06.08.2024, whereby the appeal was
allowed, impugned judgment dated 07.12.2023 passed by the Trial Court was set at naught and acquittal of the appellant was recorded.
JK/114/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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