2025 P Cr. L J 1028
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ
MUHAMMAD RAFIQ ---Appellant
Versus
The STATE through Prosecutor General Balochistan ---Respondent
Criminal Appeal No. 578 of 2023, decided on 12th September, 2024.
(a) Control of Narcotic Substances Act (XXV of 1997) [as amended by the Control of
Narcotic Substances (Amendment) Act (2022)] ---
----S. 9- 3(e)---Possession of narcotic substance ---Appreciation of evidence ---
Contradictions in the statements of witnesses ---Scope ---Prosecution case was that 30
kilograms charas in 30 packets was recovered from the vehicle of accused ---Record
showed that Seizing Officer did not mention in his examination- in chief that after
recovery of the contraband, who received the same or to whom he handed over the
contraband--- Said witness did not state about arrival of Moharar on the crime scene,
writing of murasila and making parcels ---Recovery witness testified to have recovered
30 kilograms 'charas' from the trunk of car driven by the appellant, however, while
contradicting Seizing Officer, he stated that Moharar came on the crime scene, prepared murasila, and sent it through the driver for registration of the FIR ---Head Moharar
testified that on 31.01.2023 Investigating Officer handed over to him parcel Nos.1 to 30, which were entered by him at serial No.544 of Register No.19 and that on 01.02.2023, he handed back the said parcels to Investigating Officer ---Said witness produced
relevant page of Register No.19---During cross -examination, said witness stated that in
the police station there were only one Head Moharar, an Assistant Moharar and two Munshis, and that Head Moharar was in- charge of the malkhana, however he did not
state to have been present on the spot at the time of recovery, making parcels, or writing murasila as testified by recovery witness ---Testimony of Investigating Officer had also
been found to be contradictory to the statements of complainant, recovery witness and Moharar ---Such contradictions made the recovery doubtful ---Appeal against conviction
was allowed, in circumstances.
(b) Control of Narcotic Substances Act (XXV of 1997) [as amended by the Control of
Narcotic Substances (Amendment) Act (2022)] ---
----S. 9- 3(e)---Possession of narcotic substance ---Appreciation of evidence ---
Transmission/dispatch of sample for test or analysis ---Safe custody and transmission of
samples not established ---Effect ---Prosecution case was that 30 kilograms charas in 30
packets was recovered from the vehicle of accused ---Prosecution in order to establish the
safe custody and transmission of the contraband, produced Moharrir ---Recovery witness
showed presence of Moharar on the crime scene and stated that Moharar prepared the
recovery memo, parcels, and murasila, whereas Moharar himself, while contradicting recovery witness, did not support him rather stated that he received the parcels in the police station, where he made entry in Register No.19---Moharar testified that on 01.02.2023, he handed back the recovered parcels to Investigating Officer, whereas the Forensic Laboratory Report showed that the parcels were received on 02.02.2023, whereof there was no explanation that during such period, where did the parcels remain---Thus, the safe custody of narcotic substance and its transmission from the place of recovery to malkhana and then to the Forensic Laboratory for analysis became questionable, which created doubt ---Furthermore, perusal of copy of Register No.19
showed that complainant deposited the parcels in the malkhana, which belied Moharar as well as Investigating Officer ---Moreso, column Nos. 5, 6, 7 & 8 of copy of Register
No.19 had been left blank, which also raised questions with regard to the evidentiary value of such documents as it offended R.22.49 of Police Rules,1934---Appeal against conviction was allowed, in circumstance.
The State v. Imam Bakhsh 2018 SCMR 2039 and Kamran Shah v. The State 2019
SCMR 1217 rel.
(c) Control of Narcotic Substances Act (XXV of 1997) [as amended by the Control of
Narcotic Substances (Amendment) Act (2022)] ---
----S. 9- 3(e)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---
Possession of narcotic substance ---Appreciation of evidence ---Chemical examination ---
Protocol applied, non- mentioning of ---Effect ---Prosecution case was that 30 kilograms
charas in 30 packets was recovered from the vehicle of accused ---Sub item (i) of Item
No.2 of Form -II of the Control of Narcotic Substances (Government Analysts) Rules,
2007, clearly manifested that after conducting narcotics test, the Analyst and Authorized Officer must make a statement that while preparing the results of the test and analysis of the suspected material (narcotics), the required protocols had been observed and they may be prosecuted under the law for intentionally making a false statement to the Court, which showed the importance of compliance of the protocols ---In the present case and in most of
the Forensic Laboratory Reports, declaration as contemplated in Form -II were not
provided, which was obligatory upon the signatories of Form -II---Although, such
statement was directory and not mandatory, having no penal consequences, but even then, while considering the evidence on record with the Forensic Laboratory Report, its non-adherence might in appropriate cases have an effective impact and bearing on the merits of the case---Appeal against conviction was allowed, in circumstances.
(d) Criminal trial ---
----Benefit of doubt ---Principle ---Single or slightest doubt, if found reasonable will 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, Ali Muhammad Durrani, Syed Mohib- ur-Rehman and
Muhammad Bilal Khilji for Appellant.
Muhammad Younas Mengal, Additional Prosecutor General ("APG") for the State.
Date of hearing: 22nd August, 2024.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .--- Appellant Muhammad Rafiq has brought in
the captioned appeal to set at naught the judgment dated 07- 12-2023 ("impugned judgment")
handed down by learned Additional Judge, Kuchlak- Special Judge CNS ("Trial Court"),
whereby he was convicted under section 9- 3(e) of Control of Narcotic Substances
(Amendment Act 2022) of 1997 ("Act of 1997") to suffer imprisonment for life R.I with a fine of Rs.800,000/ -(Eight hundred thousand); in default thereof, to further undergo for one
(1) year 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.16 of 2023 (Ex.P/5- A) registered with Police
Station new, Kuchlak.
2. Briefly stated, facts as disclosed in murasila (Ex.P/1 -A) of complainant Jamil -ur-
Rehman SI (PW -1) transpires that on 31.01.2023 on a tip off, at about 12:20 pm, a Probox
Car bearing Registration No.UQM -786 driven by the appellant was searched by the police
contingent, and recovered three (3) blue colour diesel gallons from the trunk of the car, wherein 10- 10 packets of 'charas' wrapped in yellow tape were found, each weighing one kg;
total 30 kgs, whereof 10- 10 grams from each packet were extracted for chemical analysis,
and parcel Nos.1 to 30 were prepared, whereas remaining 990 grams of 'charas' recovered from each packet were sealed in parcels Nos.1 -A to 30 -A, following registration of FIR ibid.
After usual investigation, the appellant was sent up to Trial Court to face the deeds of
his crime, where on commencement of the trial, the prosecution in order to bring home the charge produced five (05) 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 culminated into a verdict of guilt, whereby the appellant was convicted and sentenced vide impugned judgment in the terms mentioned in para supra.
3. Mr. Muhammad Shabbir Rajput, learned counsel for the appellant inter alia contended
that the appellant is innocent, who has falsely been involved in the instant case, whereof prosecution has failed to bring on record trustworthy and confidence inspiring evidence, holding him to be guilty of the charge. He maintained further that the prosecution has failed to prove the safe custody and transmission to the FNTL and that there are various contradictions in the statements of the prosecution witnesses, but the Trial Court, while drawing the impugned judgment has failed to consider such material facts, which is liable to be set aside. He emphasized the FNTL report has not been prepared in accordance with the protocols, and on the requisites form, thus the Federal Narcotics Testing Laboratory, Balochistan Quetta ("FNTL Quetta") reports (Ex.P/5 -1) to (Ex.P/5- 30) being inconclusive are
unworthy of reliance, thus on this score alone, the impugned judgment merits to be set at naught.
On the other hand, Mr. Muhammad Younas Mengal, learned APG controverted the
contentions so put -forth by the learned counsel for the appellant and urged that none of the
requisites and provisions referred have been violated while making recovery of the narcotics. He maintained that the impugned judgment does not suffer from any infirmity, illegality or misleading of evidence, thus, the appeal requires to be dismissed.
4. Heard. Record sussed out cover to cover in view of the arguments advanced by the
learned counsel for the parties. Jamil -ur-Rehman SI (PW -1) is complainant and Seizing
Officer of the contraband. He reiterated what he had reported in his murasila (Ex.P/1- A).
According to him, on 31.01.2023 on a tip off, at about 12:20 pm, a Probox Car bearing
Registration No.UQM -786 was searched at a blockade made at Quetta Chaman Road near
Jalogeer Cross, which led them to recover three (3) blue colored diesel gallons from the trunk
of the car, wherein ten (10) packets of 'charas' from each gallon, each weighing one kg, total thirty (30) kgs were recovered, which were secured through recovery memo (Ex.P/4- A),
wherefrom 10 -10 grams from each packet were extracted for chemical analysis, and parcel
Nos.1 to 30 were prepared, whereas remaining 990 grams of 'charas' were sealed in parcels Nos.1 -A to 30- A. Seizing officer (PW -1) did not mention in his examination- in-chief that
after recovery of the contraband, who received the same or to whom he handed over the contraband. He also did not state about arrival of Abdul Wasay Mohrar (PW -3) on the crime
scene, writing of murasila, and making parcels. Recovery witness Muhammad Kabir ASI (PW -4), testified to have recovered 30 kgs of 'charas' from the trunk of car driven by the
appellant, however, while contradicting Seizing Officer (PW -1), he stated that Abdul Wasay
Mohrar (PW -3) came on the crime scene, prepared murasila, and sent it through the driver
for registration of the FIR. Abdul Wasay Head Mohrar (PW- 3), testified that on 31.01.2023,
Manzoor Ahmed IO (PW -5) handed over him parcels Nos.1 to 30, which were entered by
him at serial No.544 of Register No.19 and that on 01.02.2023, he handed over back the said parcels to IO (PW- 5). He produced relevant page of Register No.19 (Ex.P/3- A). During
cross -examination, he stated that in the police station there is only one Head Mohrar, an
Assistant Mohrar and two Munshis, and that Head Mohrar is in- charge of the malkhana. He
did not state to be present on the spot at the time of recovery, making parcels, or writing murasila as testified by recovery witness Muhammad Kabir ASI (PW -4). The testimony of
IO (PW -5) has also been found to be contradictory to the statements of complainant (PW -1),
recovery witness (PW- 4) and Mohrar (PW -3). The contradictions highlighted above makes
the recovery doubtful.
5. The prosecution in order to establish the safe custody and transmission of the
contraband, produced Abdul Wasay Mohrar (PW -3). Recovery witness Muhammad Kabir
ASI (PW -4), showed presence of Abdul Wasay Mohrar (PW -3) on the crime scene, and
stated that (PW -3) prepared the recovery memo, parcels, and murasila, whereas Abdul Wasay
Mohrar (PW -3) himself, while contradicting recovery witness (PW -4) did not support him
rather stated that he received the parcels in the police station, where he made entry in Register No.19. Abdul Wasay Mohrar (PW -3) testified that on 01.02.2023, he handed over
back the recovered parcels to IO (PW- 5), whereas the FNTL, Quetta report shows that the
parcels were received on 02.02.2023, whereof there is no explanation that during such
period, where did the parcels remain, therefore, the safe custody and transmission from the
place of recovery to malkhana and then to the FNTL, Quetta for analysis becomes questionable, which creates doubt.
Furthermore, perusal of copy of Register No.19 shows that complainant Jamil -ur-
Rehman SI (PW -1) deposited the parcels in the malkhana, which belies Abdul Wasay Mohrar
(PW -3) as well as Manzoor Ahmed IO (PW -5). Moreso, column Nos. 5, 6, 7 and 8 of copy of
Register No.19 have been left blank, which also raises questions with regard to the evidentiary value of such documents as it offends Rule 22.49 of Police Rules, 1934. In this regard, reliance is placed upon the cases titled as "The State v. Imam Bakhsh" (2018 SCMR 2039) and "Kamran Shah v. The State" (2019 SCMR 1217). For ready reference, the relevant para No.9 of Imam Bakhsh's case supra 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."
6. Adverting to the FNTL report and its evidentiary value, we would initially like to
dilate upon Form -II, relating to certification of test provided under sub- item (i) of item No.2,
pertaining to the statement regarding compliance of the protocols during the test as contemplated under Rule 6 of Control of Narcotic Substances (Government Analysts) (Amended) Rules, 2001. For ease of reference, Form -II is as infra;
"CONFIDENTIAL Annex- B
Lab Case#....... FORM -II Agency Wise Case#......
CERTIFICATIONS OF TEST AND ANALYSIS BY FEDERAL/PROVINCIAL LABORATORY
1. Certified that….. sample(s) bearing seal of…..purporting to be sample(s) of…………. received by hand/by post through………………….. (name of depositor / courier company) on…………………..with memorandum No….. dated….. from……... (name of sender/police station) ……………has been tested and analyzed and the result of each test and analysis is stated below -
2. DETAILS OF THE RESULT OF TESTS AND ANALYSIS
FLR.No……………………………Dated…………
b. Name of Accused……………………………….
c. Gross Weight of samples S -1, S 2……………………
Net Weight of sample S -1,S-2…………………….
d. The condition of the seal on the packet was observed as under -
Satisfactory or Unsatisfactory
f. Physical Examination………………………………………………… ……………………………………………………….........................
g. Chemical Examination of each sample separately
(i)…. (name of test)… Test applied for identification.
Result…………………….
(ii)….(name of test)... Test applied for confirmation.
Result…………………..
(iii)….. [(Name of any other test (if applied)] for confirmation. Result……….
h. OPINION: In the opinion of the undersigned the sample is (Narcotic
drug/psychotropic substance/controlled substance)…… as defined in the section 2 of the CNS Act, 1997.
(i). I have observed the required protocols of the above mentioned tests and may be prosecuted under the relevant laws for intentionally making a false statement to the Court.
Note: In case of mixture the %age of each Alkaloids, opium derivatives, Opiates,
Cannabis, Drugs of abuse and the synthetic compounds are as follow: -
the Sample identification as and contain %
Signature of Government Analyst of Testing Laboratory
Signature of any other authorized officer of laboratory"
[Underline is ours]
7. Sub-item (i) of Item No.2 of Form -II of the amended Rules of 2021, clearly
manifests that after conducting narcotics test, the Analyst and Authorized Officer must
make a statement that while preparing the results of the test and analysis of the suspected material (Narcotics), the required protocols have been observed, and may be prosecuted under the law for intentionally making a false statement to the court showing the importance of compliance of the protocols. In the instant case, and in most of the FNTL reports, such declaration as contemplated in Form -II are not provided, which is obligatory
upon the signatories of Form -II. Although, such statement is directory and not mandatory,
having no penal consequences, but even then, while considering the evidence on record with the FNTL report, its non adherence may in appropriate cases have an effective impact and bearing on the merits of the case.
8. Learned counsel for the appellant argued that sub- Rule (2) of Rule 6 of the amended
Rules of 2021 has not been adhered to, which has made the FNTL report unworthy of reliance. Admittedly, under Rule 6 (c) of the rules ibid provides that a copy of report be supplied to the accused through the concerned court, whereas sub- rule (2) of the Rules of
2021 envisages that any person being aggrieved from said report may within fifteen days of receipt make an application to the court for adducing evidence in contravention of the report, which clearly demonstrates that after issuance of FNTL report opportunity of rebuttal must be afforded, against whom such report is likely to be adduced in evidence. For ease of reference, Rule 6 of the amended Rules of 2021 is reproduced herein below;
"6. Report of result of test or analysis.- (1) The Government Analyst to whom a
sample of any narcotic drug, psychotropic substance or controlled substance has been submitted for test or analysis under section 36 of the Act shall deliver a signed report in quadruplicate of the Result of the test and analysis, while observing protocols of the tests or analysis applied, after keeping one copy in the record under sub- rule (2) of rule 5 and three copies of the report shall be supplied
as early as possible to the sender of the samples for further distribution as follows: -
(a) one copy of the report be placed in Police File;
(b) one copy of the report be submitted in the Trial Court for production as evidence; and
(c) one copy of the report be supplied to the accused through concerned court.
Explanation- I All four copies shall be treated as primary evidence.
Explanation- II It shall be deemed to be full and sufficient compliance with the
requirement of the rule in respect of the supply of "full protocols of the tests or
analysis applied", If -
(i) for pharmacopoeial drug or any substance, where the tests or methods of analysis prescribed in the official pharmacopoeia are followed, references to the specific tests or analysis in the pharmacopoeias are given in the report;
(ii) for patent or proprietary medicines or any substance for which the tests and methods prescribed in any of the official pharmacopoeias are applicable and are followed, references to the specific tests or analysis in the pharmacopoeias are given in the report;
(iii) for patent or proprietary medicines containing pharmacopoeial drugs for which the official tests or analysis or methods of assays are modified and applied, a description of the actual tests or, as the case may be analysis or methods of assays so
applied is given in the report;
(iv) for patent or proprietary medicines or any substances for which non
pharmacopoeial tests or methods of analysis are available or can be applied but for
which tests or methods of analysis given in standard books or journals from which the test or methods or analysis have been adopted, is given in the report;
(v) for the narcotic drugs, psychotropic substances, controlled substances and any substance the name of test used at international level under the guidelines of
Scientific Working Group On Drugs (SWGDRUGs), United Nations Office on Drugs
(UNODC) or any other method of Analytical Chemistry;
(vi) for those narcotics drugs, psychotropic substances and controlled substances or
any other substance for which methods of test are not available and have been
evolved by the Government Analyst, a description of tests applied is given in the report;
(vii) for the test conducted by using techniques such as Mass Spectrometry, Infrared Spectrometry, Raman spectrometry and X -ray diffractometry (X -ray-D) etc. the name
of test shall be mentioned; or
(viii) The Government Analysts to whom a sample of any drug, psychotropic substance or controlled substance has been submitted, will deliver its report within fifteen days or submission or samples;
2. Any person being aggrieved on such report may within fifteen days of receipt thereof may make application of the Court for adducing evidence in contravention of the report.";
[Highlighting is ours]
In the instant case, opportunity of rebuttal through evidence was not sought and
availed, thus at such a belated stage, such objection is not worth of consideration.
9. In view of the appraisal of evidence made herein above, we have irresistibly reached
to a conclusion that due to the shortcomings highlighted supra, the case of the prosecution has become highly doubtful, thus, we are unable to maintain the conviction and sentence rendered though the impugned judgment. In this regard, we would like to refer to the case of "Ahmed Ali v. The State" (2023 SCMR 781), wherein it was held that 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.
10. Corollary, the appeal is allowed; the impugned judgment of the Trial Court dated 07-
12-2023 is set -aside and the appellant is acquitted of the charge.
The appellant serving sentence be set free, if not incarcerated in any other case.
JK/100/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,
let us know.