2023 P Cr. L J 1466
[Balochistan]
Before Zaheer- ud-Din Kakar and Muhammad Aamir Nawaz Rana, JJ
SAIFULLAH ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 591 of 2021, decided on 12th September, 2022.
(a) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c) ---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4---
Transportation of narcotics ---Appreciation of evidence---Dispatch of sample for test or
analysis ---Safe custody ---Contradictory statements ---Accused assailed his conviction on the
charge of transporting 08 kilograms of charas ---Investigating Officer had not delivered the
narcotic substance at the Forensic Laboratory rather he had asserted that the recovered
narcotic was sent through docket ---Perusal of the report of Forensic Laboratory revealed that
the samples were received through Investigating Officer, which fact had negated the statement of the Investigating Officer ---Neither the statement of special messenger was
recorded nor any witness in this regard was produced who could prove that he delivered the
samples of narcotic substance at Forensic Laboratory ---No document was available on record
which could verify that the samples were sent through insured post, so the mandatory provision of R. 4 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, had been violated ---Accused was acquitted, in circumstances.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9 ---Possession of narcotics ---Safe custody ---Scope ---Prosecution has to prove its case
beyond any reasonable doubt ---Chain starting from recovery of narcotic substance till its
delivery at the concerned Forensic Laboratory has to be proven without any missing link and in case any link is broken, the whole prosecution case would crumble on its foundation.
Khair -ul-Bashar v. The State 2019 SCMR 930; The State v. Imam Bakhsh 2018
SCMR 2039; Shafa Ullah Khan v. The State 2021 SCMR 2005; Razia Sultana v. The State 2019 SCMR 1300 and Ameer Zeb v. The State PLD 2012 SC 380 ref.
Muhammad Ali Mughal for Appellant.
Muhammad Naeem Kakar, Additional Prosecutor General for the State.
Date of hearing: 16th August, 2022.
JUDGMENT
MUHAMMAD AAMIR NAWAZ RANA, J. ---The appellant was tried by learned
Additional Sessions Judge -IX/Special Judge CNS, Quetta ("trial Court") and after complete
trial, vide judgment dated 19.11.2021 ("impugned judgment"), he was found guilty and was
convicted and sentenced by the trial Court under section 9(c) of the Control of Narcotic Substances Act, 1997 ("CNS Act") to suffer ten (10) years' R.I with fine of Rs.100,000/ -
(Rupees one hundred thousand only). In default, further S.I for six (06) months was proposed. The benefit of section 382(b), Cr.P.C was also given to the appellant.
SUMMARY OF THE FACTS:
On 01.10.2020, PW -I Kamran Lodi, Sub- Inspector/ASHO, Police Station Satellite
Town Quetta sent a written report/Marasila (Exp/1- A) to Police Station Satellite Town
Quetta stating therein that when he along with other police personnel was patrolling the area, meanwhile an information was received from spy that one Saifullah is carrying drug on a motorcycle and going towards Chandi Chowk via Munir Mengal Road from Sariab Road. On this spy information, the complainant says that checking was started at Uzbak Bazar and at or around 9:10 p.m., a motorcycle was observed coming from Munir Mengal Road; on the
pointation of spy, the same was stopped; the rider disclosed his name Saifullah son of Fazal
Muhammad (appellant) resident of Killa Abdulllah and on search, a packed cotton, tied with the seat of motorcycle was found which was opened and slates of narcotic substance (Charas), 16 in numbers, were recovered. The narcotic substance, on weighing, was found to be of net 8 kilograms. The samples of 10 grams from each slate were obtained for chemical
analysis and parcels were prepared at the spot. Per complainant, the recovery memo (Exp/1 -
B) was also prepared at the spot.
INVESTIGATION:
PW-4 Anwar -ul-Hassan, Inspector Police was entrusted with the investigation of the
case as Investigating Officer, who reached at the place of incident, received recovery memo and parcels of narcotic substance, parcel of samples form the complainant, recorded the statements of the witnesses of recovery memo under section 161, Cr.P.C, arrested the appellant, handed over the recovered substance along with parcels of samples to Head Moharar PS Satellite Town and recorded the statement of Head Moharar under section 161, Cr.P.C. According to his statement before the trial Court, he sent the samples of narcotic substance to Federal Narcotics Testing Laboratory Balochistan, Quetta through docket, which fact was incorporated in the daily diary maintained by the police officials of PS Satellite Town. On 29.10.2020, he received the FSL Reports (Exp/4- C) to (Exp/4 -R) and got
exhibited reports under section 173, Cr.P.C as Exp/4- B and Exp/4- S.
TRIAL:
The prosecution, in order to prove the charge against the appellant, produced PW -1
Kamran Lodi SI/ASHO, the complainant of the case who deposed before the trial Court
according to his marasila (Exp/1- A) and verified the fact that he prepared recovery memo
(Exp/1- B) at the spot. PW -2 Farooq Jameel ASI is a witness of recovery memo. He got
exhibited not only the recovery memo, but other recovered narcotic material which had been sealed. The motorcycle was also produced in the Court. PW -3 Riaz Husssain ASI is Head
Moharar, who kept the parcels of sealed parcels containing narcotic substance in the
storehouse (Malkhana). PW -4 Anwar -ul-Hassan IP is the Investigation Officer who
explained the investigation during his statement before the trial Court and also got exhibited
the reports of Chemical Experts (Exp/4- C) to (Exp/4- R).
On conclusion of the trial, the trial Court, while appreciating the evidence, convicted
and sentenced the appellant on the terms mentioned above.
SUBMISSIONS OF LEARNED COUNSEL FOR THE APPELLANT AND LEARNED ADDITIONAL PROSECUTOR GENERAL:
The learned counsel for the appellant contended that the prosecution failed to prove
its case against the appellant beyond reasonable doubt; that the standards set by the Hon'ble
Supreme Court of Pakistan in CNS cases vis -à-vis safe custody and protocols were not
followed by the Chemical Examiner while preparing FSL reports and despite non- compliance
of the same, the appellant was awarded conviction. He further contended that there are number of material contradictions amongst the prosecution witnesses rendering the prosecution story doubtful. Learned counsel place reliance upon the case titled as Khair -ul-
Bashar v. The State
1, The State v. Imam Bakhsh2 and Shafa Ullah Khan v. The State3.
Conversely, learned Additional Prosecutor General appearing on behalf of the State
submitted that the prosecution had proved its case against the appellant and since no
acrimony has been alleged against the prosecution by the appellant so there is no possibility
of false implication of the appellant in the instant case.
Arguments heard and record perused.
DETERMINATION:
It is by now well settled principle of law in view of number of judgments passed by
Hon'ble Supreme Court of Pakistan that in CNS cases the prosecution has to prove its case
beyond any reasonable doubt. The chain starting from recovery of narcotic substance till its
delivery at the concern Forensic Science Laboratory has to be proven without any missing
link and in case any link is broken, the whole prosecution case would crumble on its foundation. In this regard, the principles enunciated by Hon'ble Supreme Court of Pakistan in
the cases titled as Razia Sultana v. The State
4 and Ameer Zeb v. The State5 are very relevant
as in the case of Razia Sultana (supra), it was found that the safe custody was not proved as
the officer who took the samples was not produced. In this context when the evidence of this
case is evaluated, it is found that the Investigating Officer did not deliver the narcotic
substance at the Forensic Science Laboratory, rather in his statement, he has asserted that he sent the recovered narcotics through docket. The perusal of FSL report prepared by chemical
examiner transpires that the parcels of alleged narcotic substance were received on
03.10.2020 through IP Anwar -ul-Hassan Investigating Officer, which fact negates the
statement of the Investigating Officer. In this regard, during cross -examination, the
Investigating Officer mentioned the docket number 5165- 68/30 dated 03.09.2020 and as per
his statement, the narcotic substance was delivered through said letter. The docket number
5165- 68/03 dated 03.09.2020 is available on record which is a letter sent by Superintendent
of Police Investigation Sariab Division Quetta to Incharge Federal Narcotics Testing
Laboratory Balochistan, Quetta. For ready reference, the docket bearing No.5165- 68/03
dated 03.09.2020 is reproduced:
(Emphasis provided)
The perusal of aforementioned letter divulges that Investigating Officer Anwar -ul-
Hassan was mentioned by the Superintendent of Police Investigation Sariab Division Quetta that he, by hand, had delivered the parcels containing samples of narcotic substance but the statement of Investigating Officer Anwar -ul-Hassan contradicts this letter, as he said in his
cross -examination that he sent the samples of narcotic substance through docket, so the
prosecution evidence about this fact that who delivered the parcels at Federal Narcotics Testing Laboratory Balochistan Quetta, is silent.
The Rule 4 of the Control of Narcotic Substances (Government Analysts) Rules, 2001
is relevant, same is reproduced for ready reference:
"4. Despatch of sample for test or analysts.---(1) Reasonable quantity of samples from
the narcotic drugs, psychotropic substances or the controlled substances seized, shall be drawn on the spot of recovery and despatched to the officer -incharge of nearest
Federal Narcotic Testing Laboratory, depending upon the availability for test facilities, either by insured post or through special messenger duly authorized for the purpose.
(2) Samples may be despatched for analysis under the cover of a Test Memorandum specified in Form -I at the earliest, but not later than seventy- two hours of the seizure.
The envelope should be sealed and marked "Secret drug Sample/Test Memorandum".
(Emphasis provided)
That in the case in hand, neither the statement of special messenger was recorded nor
any witness in this regard was produced who could justify that he delivered the samples of
narcotic substance at Federal Narcotics Testing Laboratory Balochistan Quetta. Furthermore, no document is available on record which could verify that the samples were sent through insured post, so the mandatory provision of Rule 4 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 has been violated in the instant case.
In the given circumstances of the case, the contradiction in the aforementioned letter
and statement of Investigating Officer vis -a-vis who delivered the samples of alleged
narcotics substance at Federal Narcotics Testing Laboratory Balochistan Quetta has cast doubt upon the safe custody. Reliance in this regard is placed in the case titled as Mst. Razia Sultana (supra), the relevant excerpt is reproduced:
"2. At the very outset, we have noticed that the sample of the narcotic drugs was dispatched to the Government Analyst for chemical examination on 27.2.2006 through one Imtiaz Hussain, an officer of ANF but the said officer was not produced to prove safe transmission of the drug from the Police to the chemical examiner. The chain of custody stands compromised as a result it would be unsafe to rely on the report of the chemical examiner. This Court has held time and again that in case the chain of custody is broken, the Report of the chemical examiner loses reliability making it unsafe to support conviction. Reliance is placed on State v. Imam Bakhsh 2018 SCMR 2039)".
After due deliberations and considering the ratio decidendi of referred judgment
passed by Hon'ble Supreme Court of Pakistan, we are not persuaded to upheld the conviction
and sentence awarded to the appellant, resultantly the appeal is allowed. The impugned judgment dated 19.11.2021 passed by learned Additional Sessions Judge -IX/Special Judge
CNS, Quetta is set aside and while extending benefit of doubt, the appellant is acquitted of the charge.
The appellant who is behind the bars, is ordered to be released forthwith, if not
required in any other case for the purpose of detention.
SA/50/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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