2024 P Cr. L J 1597
[Balochistan]
Before Zaheer- ud-Din Kakar and Shaukat Ali Rakhshani, JJ
HAMAYUN KHAN ---Appellant
Versus
The STATE through Prosecutor General, Balochistan ---Respondent
Criminal Appeal No. 150 of 2023, decided on 1st August 2023. (a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotic substance ---Appreciation of evidence ---Safe custody of
recovered substance and its transmission for analysis not proved---Accused was found to be in
possession of four kilograms charas ---Seizing Officer deposed in line as incorporated by him
in his murasila ---According to complainant, during patrolling duty, on a tip off, 4 kilograms of
charas in slate form was recovered from the accused held by him in a polythene bag in his hand---Similarly recovery witness, while supporting his testimony, came up with same version of recovery of the narcotic substance from the accused ---Seizing Officer as well as recovery
witness did not mention in their deposition that after recovery, as to whom the recovered narcotic were handed over for its safe custody ---Said witnesses also failed to mention about
arrival of the Investigating Officer at the place of recovery ---Head Moharir was the Malkhana
Incharge, who had been produced to prove the safe custody and onward transmission of the narcotic to the Forensic Science Laboratory, who stated that on 09.10.2022, Investigating Officer handed over to him parcels Nos. 1 to 4, pertaining to samples of charas, each containing 10 grams and parcels Nos.1- A to 4 -A, each containing 990 grams of charas,
whereof he made entry at serial No. 1585 of Register No.19 and produced certified copy of the extract of Register No.19 ---During cross -examination, Head Moharir stated that parcel Nos.1
to 4 pertaining to the samples were received by the Investigating Officer on 11.10.2022 for onward transmission to Forensic Science Laboratory---Investigating Officer exhibited the Forensic Science Laboratory Reports, wherein date of receipt was mentioned as 11.10.2022, which contradicted the Forensic Science Laboratory Reports, because all of the Forensic Science Laboratory Reports showed date of receipt of the samples of the narcotic substance as 10.10.2022---Prosecution failed to offer any explanation, creating doubt the safe custody and transmission of narcotic substance, thus the entire case of the prosecution fell on the ground---Appeal against conviction was accordingly allowed.
The State v. Imam Bakhsh 2018 SCMR 2039; Kamran Shah v. The State 2019 SCMR
1217; Zafar Khan v. The State 2022 SCMR 864 and Ameer Zeb v. The State PLD 2012 SC 380
rel.
(b) Criminal trial---
----Benefit of doubt ---Principle ---Single or 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.
Ahmed Ali v. The State 2023 SCMR 781 rel.
Muhammad Shabbir Rajput for Appellant.
Muhammad Naeem Kakar, APG for the State.
Date of hearing: 25th July, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. --- Veracity and legality of judgment dated 12- 04-
2023 ("impugned judgment") has been called in question by the appellant, penned by learned
Additional Sessions Judge -IV, CNS Court, Quetta ("Trial Court"), whereby the appellant was
convicted and sentenced under Section 9 (c) of Control of Narcotic Substances Act, 1997 (“Act of 1997”) to suffer four (04) years R.I with a fine of Rs.40,000/ - (rupees forty thousand) and in
default of payment of fine to further undergo two (02) months S.I, but with the premium of
Section 382- B of Cr.P.C, emanating from a case vide FIR No.187/2022 (Ex.P/4- A) registered
with Police Station Satellite Town, Quetta by complainant Khair Muhammad SI (PW -1) against
the appellant for possessing 4 kgs of baked‘charas’ recovered from a brown polythene bag held
by the appellant in his hand.
2. Crime report ibid was lodged on the strength of a murasila (Ex.P/1- A), averring therein
that on 09.10.2022 complainant Khair Muhammad SI (PW -1) along with police contingent were
on patrolling duty, who on a tip off, regarding selling of narcotics by the appellant at Chalo
Bawari near Mulla Obaidullah Road, at about 07:45 pm, apprehended the appellant, who was found to be in possession of four slabs of baked ‘charas’ weighing 1000 grams each, total 4 kgs.
After necessary investigation, the appellant was sent up to the Trial Court to face deeds of
his culpability, where on commencement of the trial, the appellant entered the plea of denial, thus, the prosecution in order to bring home the charge, produced as many as four 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 he stepped into the witness box to depose on oath nor produced any evidence in his defence, hence on conclusion of the trial, the appellant was convicted and sentenced in the terms mentioned in para supra.
3. Mr. Muhammad Shabbir Rajput, learned counsel for the appellant inter alia contended
that the prosecution has not only failed to prove the recovery, but has also remained unsuccessful to establish the safe custody and transmission of the narcotics. He also submitted that there are
material contradictions in the prosecution witnesses which have made the case highly doubt full
but the learned trial court has failed to appreciate this aspect of the case, henceforth prayed for
acquittal of the appellant.
Conversely, Muhammad Naeem Kakar, 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, thus requested for dismissal of the appeal.
4. Heard. Record perused.
5. Seizing Officer Khair Muhammad SI (PW- 1) deposed in line as incorporated by him in
his murasila (Ex.P/1 - A). According to him, on 09.10.2022, during patrolling duty at Chalo
Bawari near Mulla Obaidullah Road, on a tip off, 4 kgs of ‘charas’ in slate form were recovered
from the appellant held by him in a polythene bag in his hand. Similarly recovery witness Fazal -
ur-Rehman ASI (PW -2), while supporting his testimony came up with a same version of
recovery of the narcotics from the appellant. He got exhibited recovery memo of narcotics
(Ex.P/2- A) and produced 4 parcels of narcotics, each weighing 990 grams, whereof 10 grams
from each parcel were extracted for FSL. Seizing Officer Khair Muhammad SI (PW -1) as well as
recovery witness Fazal -ur-Rehman ASI (PW -2) did not mention in their deposition that after
recovery, as to whom the recovered narcotics were handed over for its safe custody. They also
failed to mention about arrival of the investigating officer (“IO”) Muhammad Saleem SI (PW -4)
at the place of recovery.
6. Muhammad Waqas Head Mohrar (PW -3) is the malkhana Incharge, who has been
produced to proof the safe custody and onward transmission of the narcotics to the FSL. He
stated that on 09.10.2022, Muhammad Saleem SI (PW -4) being IO handed over him parcels
Nos.1 to 4, pertaining to samples of ‘charas’, each containing 10 grams and parcels Nos.1 -A to
4-A, each containing 990 grams of ‘charas’, whereof he made entry at serial No.1585 of Register
No.19. He produced the certified copy of the extract of Register No.19 as (Ex.P/3- A). During
cross -examination, he stated that parcel Nos.1 to 4 pertaining to the samples were received by
the IO on 11.10.2022 for onward transmission to FSL. Muhammad Saleem IO (PW -4) got
exhibited the FSL reports, wherein date of receipt is mentioned as 11.10.2022, which contradicts
the FSL reports (Ex.P/4- C), (Ex.P/4- D), (Ex.P/4- E) and (Ex.P/4- C), because all of the FSL
reports shows date of receipt of the samples of the narcotics as 10.10.2022, whereof the
prosecution as well as learned APG failed to offer any explanation, creating doubt into the safe
custody and transmission, thus the entire case of the prosecution falls on ground. In this regard,
reliance is placed upon 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 of Imam Bakhsh’s case is produce 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]
The Apex Court in a case titled as ‘Ameer Zeb v. The State’ (PLD 2012 SC 380),
observed as follows;
“Punishment provided in the Control of Narcotic Substances Act, 1997 were quite
stringent and long, if not harsh, and thus, a special care had to be taken that a court trying such an offence had to be convinced that the entire quantity allegedly recovered from the accused person’s possession was indeed narcotic substance. We, reverently and respectfully, tend to agree with the latter view and would like to add that the rule of thumb for safe administration of criminal justice is: “The harsher the sentence the stricter the standard of proof.”
We may also observe that in such cases it is the accused person who is at the receiving
end of long and stringent punishments and, thus, safeguards from his point of view ought not to be allowed to be sacrificed at the altar of mere comfort or convenience of the prosecution.”
[Emphasis added]
Similarly, while relying upon the judgment supra the Hon’ble Supreme Court in case of
‘Ahmed Ali v. The State’ (2023 SCMR 781) it was observed 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.
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 safe custody and transmission from the place of recovery to the malkhana and then to FSL, 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 12- 04-2023, passed by the Trial Court is set aside and appellant
Humayun Khan son of Abdul Rahim is acquitted of the charge.
The appellant serving sentence be set free, if not incarcerated in any other case.
JK/61/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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