2025 P Cr. L J 1666
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Muhammad Najam -ud-Din Mengal,
JJ
SAJJAD KHAN and another ---Appellants
Versus
The STATE--- Respondent
Criminal Appeal No. (K)16 of 2024, decided on 28th March, 2025.
(a) Control of Narcotic Substances Act (XXV of 1997) [as amended by the Control
of Narcotic Substances (Amendment) Act, 2022] ---
----S. 9(2), Sr. No. 9--- Possession of narcotic substance ---Appreciation of evidence ---
Benefit of doubt ---Contradictions and improvements made by witnesses in their
statements ---Prosecution case was that 06 kilograms crystal was recovered from the
secret cavities of the vehicle driven by the accused ---Complainant of the case mostly
reiterated the contents of his fard -e-bayan, but however, to some extent he derailed from
his earlier statement, thus, contradicted the case of prosecution ---Said witness stated that
12 packets of recovered substances were in square shape, while he showed his ignorance
with regard to weighing the same at the spot ---Recovery witness, while contradicting the
statement of complainant, deposed that the recovered contraband consisting upon 12
packets was in round shape, contrary to the same complainant deposed that the same was in square shape ---Said witness further deposed that the Investigating Officer conducted
the recovery proceedings outside the Levies room at the eastern side, whereas complainant deposed that the Investigating Officer completed the recovery proceedings inside the room of Levies Check Post ---Recovery witness admitted that his statement
under S.161, Cr.P.C., and recovery memo. was silent with regard to weighing each packet separately ---Said witness further admitted that the engine number of the produced
Fielder in the Trial Court was C60837, while the same was mentioned in the recovery memo. as C611472--- Recovery within admitted that chassis number of the vehicle in
question was mentioned in the recovery memo. as chassis No.NZE -144-6003072,
whereas when the same was produced before the Trial Court was having chassis bearing No.NZE -144-9003072--- Meaning thereby the vehicle from which the alleged contraband
was recovered had not been produced before the Trial Court ---Investigating Officer of
the case, who counted the steps taken by him during the course of investigation, had contradicted the statements of rest of the witnesses during his cross -examination and
admitted that when he reached at the place of occurrence, the recovered contraband was lying on floor near the vehicle in question--- While contrary to the same complainant
stated that the substances were lying on the back seat of the vehicle in question till the arrival of the Investigating Officer ---Thus, such admissions and contradictory statements
of the witnesses created serious doubts in the case of prosecution---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(2), Sr. No. 9 ---Possession of narcotic substance ---Appreciation of evidence ---
Benefit of doubt ---Safe custody and safe transmission of narcotic substances not proved -
--Prosecution case was that 06 kilograms crystal was recovered from the secret cavities of the vehicle driven by the accused---According to the statement of the Incharge Malkhana, he on 31st March 2024 received the parcels from Investigating Officer and he made entries whereof in the Register No.19 ---Said witness admitted that the
Investigating Officer did not sign the Register No.19--- Said witness further admitted that
the produced Register No.19 was not prepared according to Police Rules rather the same was manually made in a plain paper ---Said witness stated that the produced Register No.
19 was silent with regard to transmission of sealed parcels for Forensic Science
Laboratory--- Besides, perusal of Register No.19 showed that the column No.1 whereof
with regard to handing over the parcels to any personnel of the police for onward
transmission to the office of Chemical Expert was blank--- Besides, the columns 5 & 6 of
the Register No.19, which provided that every article placed in the store -room shall be
entered and removal of any such articleshall be noted in the appropriated column, but in
the case in hand, the perusal of Register No.19 did not bear the signatures of handing &
taking over the samples ---Even otherwise, the same did not contain the name of
officials, who took over the case property for onward transmission--- Thus, said material
discrepancies showed that the prosecution had compromised the safe custody of the
narcotics and created a reasonable doubt in the case of the prosecution ---Appeal against
conviction was allowed, in circumstances.
Ahmed Ali and another v. The State 2023 SCMR 781 rel.
(c) Control of Narcotic Substances Act (XXV of 1997) [as amended by the Control of Narcotic Substances (Amendment) Act, 2022] ---
----S. 9(2), Sr. No. 9--- Possession of narcotic substance ---Appreciation of evidence ---
Benefit of doubt ---Infirmities in the statement of Investigating Officer ---Prosecution
case was that 06kilograms crystal was recovered from the secret cavities of the vehicle driven by the accused ---Investigating Officer stated that the recovery proceedings were
completed at 04:00 a.m., while the same deposition was negated by the Incharge Malkhana, who deposed that Investigating Officer handed over him the parcels at 12:30
a.m. and his statement under S.161, Cr.P.C., was recorded by the Investigating Officer at
12:40 a.m.---Thus, a question arose that according to the Investigating Officer, the
recovery proceedings were completed at 04:00 a.m. then how the parcels could be
handed over to the Incharge Malkhana three hours before ---Furthermore, Investigating
Officer also admitted that there was no facility of WAPDA and Solar System electricity,
while his entire statement was silent that through which source of light they completed
the recovery proceedings ---Such conduct and admission of Investigating Officer did not
appeal to the logic, which created serious dents in the case of prosecution ---Appeal
against conviction was allowed, in circumstances.
(d) Control of Narcotic Substances Act (XXV of 1997) [as amended by the Control
of Narcotic Substances (Amendment) Act, 2022] ---
----Ss. 9(2), Sr. No. 9 & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.5 & 6 ---Possession of narcotic substance ---Appreciation of evidence ---
Benefit of doubt ---Report of Government Analyst ---Failure of analyst to mention full
protocols of tests applied---Effect ---Consolidated report of the samples ---Effect --
Prosecution case was that 06 kilograms crystal was recovered from the secret cavities of the vehicle driven by the accused---Report of the Government Analyst under S.36(2) of the Act, 1997, was of pivotal importance in narcotics cases ---In order to succeed, the
prosecution was required not only to prove the factum of recovery, but also exhibited positive report of the Government Analyst drawn in accordance with law ---In the case in
hand, the report of the Chemical Examiner was defective ---Perusal of record reflected
that twelve sealed parcels of Crystal were received in the office of Chemical Expert on 2nd April 2024, but instead of preparing separate reports for each sample containing details of the protocols applied, the Chemical Examiner drew up consolidated report for the aforesaid samples ---Said fact was a flagrant disregard of Rule 6 of the Control of
Narcotic Substances (Government Analysts) Rules, 2001, which rendered the reports nullity in the eye of law ---Appeal against conviction was allowed, in circumstances.
The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR
2039 rel.
(e) Administration of justice ---
----When a specific method is provided for doing any legal act in a specified procedure, thus such act is required to be done in that manner; deviation from such procedure would amount to violating the law.
Muhammad Yousaf v. The State MLD 1471 rel.
(f) Control of Narcotic Substances Act (XXV of 1997) [as amended by the Control of
Narcotic Substances (Amendment) Act, 2022] ---
----S. 9(2), Sr. No. 9--- Possession of narcotic substance ---Appreciation of evidence ---
Ownership of vehicle not established---Effect ---Prosecution case was that 06kilograms
crystal was recovered from the secret cavities of the vehicle driven by the accused ---
Alleged recovery of contraband was affected from a Fielder Car, but the prosecution had failed to establish the ownership of the appellants or their being as last possessors ---In
absence of any cogent and concrete evidence neither it could be presumed that the said Fielder Car was owned by the appellants or that the appellants were the last possessors of the same and also responsible for recovery of the contraband effected from the car in question---Unless the prosecution established the ownership of the appellants in respect of Fielder Car, he could not be held responsible for the alleged recovery of contraband---Recovery of Crystal from the Fielder in question could not ipso facto be proof of the guilt of the appellants unless possession and ownership of vehicle was proved against the appellants through confidence inspiring evidence, which was lacking---Appeal against conviction was allowed, in circumstances.
(g) Criminal trial ---
----Benefit of doubt ---Principle ---Accused were entitled to be extended benefits of doubt
as a matter of right ---Even an accused cannot be deprived of benefit of doubt, merely
because there is only one circumstance, which creates doubts in the prosecution story.
Tariq Pervaiz v. The State 1995 SCMR 1345 rel.
Haji Attuallah Langove for Appellants.
Younas Mengal, APG for the State.
Date of hearing: 19th March, 2025.
JUDGMENT
MUHAMMAD NAJAM -UD-DIN MENGAL, J .--- This judgment disposes of
Criminal Appeal No.(K) 16 of 2024 filed by the appellants (convicts) Sajjad Khan and Shah Wali both sons of Abdul Sattar, against the judgment dated 15th October 2024, ("the impugned judgment") passed by learned Special Judge/Additional Sessions Judge, Khuzdar ("the trial Court"), whereby the appellants were convicted under Section 9(2)9 of Control of Narcotics Substances, Act (Amendment) Act, 2022 ("the CNS Act, 2022") and sentenced to suffer life imprisonment R.I. with fine of Rs.20,00,000/ - or in default thereof to further suffer
S.I. for Six (06) months, with the benefit of Section 382- B, Cr.P.C.
2. Facts of the case are that on 31st March 2024, the complainant Din Muhammad,
Dafedar lodged FIR No.06 of 2024 at Levies Station Wadh, District Khuzdar with the averments that on the said date he along with other Levies officials were checking the vehicles at Gaslity check post, Khuzdar in the meanwhile, at about 12:30 a.m. they stopped a Fielder Car bearing Registration No.BAL -460. On query, the driver disclosed his name as
Sajjad Khan son of Abdul Sattar, while he was accompanied by Shah Wali son of Abdul Sattar. The search of vehicle in question was conducted, which resulted into 12 packets of Crystal total weighing 6 -Kgs concealed in the secret cavities of the said Fielder.
3. In pursuance of above FIR, the appellants were arrested, investigated and on
completion thereof, they were challaned in the trial Court, which indicted the charge and on denial by the appellants, the prosecution produced four (04) witnesses, whereafter the appellants were examined under Section 342, Cr.P.C. The appellants neither recorded their statements on oath under Section 340(2), Cr.P.C nor produced any witness in their defence. On conclusion of trial, the appellants were convicted and sentenced as mentioned above. Whereafter the instant appeal has been filed.
4. Heard learned counsel for the parties and perused the available record. Perusal of
record reveals that it is a case of no evidence at all and the learned trial Court while
delivering the impugned judgment has reached to a wrong conclusion by awarding conviction and sentence to the appellants. Anyhow, the prosecution in order to establish the charge has produced the evidence of four witnesses, who have not only contradicted each
other on material counts, but also made several dishonest improvements. The complainant
of the case Din Muhammad, Dafedar appeared as PW -1, who mostly reiterated the contents
of his fard -e-bayan Ex. P/1- A, but however, to some extent he derailed from his earlier
statement, thus contradicted the case of prosecution. In reply of question No.33 this witness
stated that 12 packets of recovered substances were in square shape, while he showed his ignorance with regard to weighing the same at the spot. PW -2 Muhammad Ismail, Levies
Sepoy is the witness of recovery memo. This witness, while contradicting the statement of PW-1 deposed that the recovered contraband consisting upon 12 packets were in round
shape, contrary to the same complainant deposed that the same were in square shape. He further deposed that the I.O. conducted the recovery proceedings outside the Levies room
at the eastern side, whereas PW- 1 deposed that the I.O. completed the recovery
proceedings inside the room of Levies Check post. PW -2 in reply of question No.27
admitted that his statement under section 161, Cr.P.C. and recovery memo. Ex.P/2 -A are
silent with regard to weighing each packet separately. PW- 2 further admitted that the
engine number of the produced Fielder in the trial Court is C60837, while the same was mentioned in the recovery memo. Ex.P/2 -B as C611472. In response to question No.32 this
witness admitted that chassis number of the vehicle in question was mentioned in the
recovery memo. Ex.P/2- B as chassis No.NZE -144-6003072, whereas when the same was
produced before the trial Court was having chassis bearing No.NZE -144-9003072.
Meaning thereby the vehicle from which the alleged contraband was recovered has not
been produced before the learned trial Court. Thus, such admissions and contradictory
statements of the PWs created serious doubts in the case of prosecution.
5. The Incharge of Malkhana Inayatullah, Dafedar appeared as PW- 3, according to him
he on 31st March 2024 received the parcels from PW -4 Ghulam Haider, Naib Risaldar/I.O
and he made entries whereof in the Register No.19 (Ex.P/3- A). In reply of question No.8 he
admitted that the I.O. Ghulam Haider did not sign the Register No.19. He further admitted
that the produced Register No.19 is not prepared according to Police Rules rather the same was manually made in a plain paper. In reply of question No.12 he stated that the produced Register No.19 Ex.P/3- A is silent with regard to transmission of sealed parcels for FSL.
Besides, perusal of Register No.19 the column No.1 whereof with regard to handing over the parcels to any personnel of the police for onward transmission to the office of Chemical expert is blank; thus above aspect of the matter created serious doubts in the case of prosecution with regard to establishing of the safe custody and safe transmission of narcotics.
6. PW-4 Ghulam Haider, Naib Risaldar is the Investigating Officer of the case, who
counted the steps taken by him during the course of investigation. The Investigating Officer has also contradicted the statements of rest of the witnesses during his cross -examination and
admitted that when he reached at the place of occurrence, the recovered contraband was lying on floor near the vehicle in question, while contrary to the same complainant stated that the substances were lying on the back seat of the vehicle in question till the arrival of the I.O. In reply of question No.34 he stated that the recovery proceedings were completed at 04:00 a.m., while the same deposition was negated by the PW -3, who deposed that I.O. handed
over him the parcels at 12:30 a.m. and his statement under Section 161, Cr.P.C. was recorded by the I.O. at 12:40 a.m.; thus a question arises here that according to the I.O. the recovery proceedings were completed at 04:00 a.m. then how the parcels can be handed over to the Incharge Malkhana three hours before. Furthermore, he also admitted that there is no facility of WAPDA and Solar system electricity, while his entire statement is silent that through which source of light they completed the recovery proceedings; such conduct and admission does not appeal to the logic, which created serious dents in the case of prosecution.
7. Besides, the columns 5 and 6 of the register No.19, which provides that every article
placed in the store -room shall be entered and removal of any such article shall also be noted
in the appropriate column, but in the case in hand, the perusal of register No.19 Ex.P/3- A
does not bear the signatures of handing and taking over the samples. Even otherwise, the same did not contain the name of officials, who take -over the case property for onward
transmission. Thus, above material discrepancies show that the pr osecution has compromised
the safe custody of the narcotics and created a reasonable doubt in the case of the
prosecution. In this regard reliance is placed on the case of "Ahmed Ali and another v. The State, (2023 SCMR 781)" wherein held as under:
"Thus, the Police Rules mandate that case property be kept in the Malkhana and that the entry of the same be recorded in Register No. XIX of the said police station. It is the duty of the police and prosecution to establish that the case property was kept in safe custody, and if it was required to be sent to any laboratory for analysis, to further establish its safe transmission and that the same was also recorded in the relevant register, including the road certificate, etc. The procedure in the Police Rules ensures that the case property, when is produced before the court, remains in safe custody and is not tampered with until that time. A complete mechanism is provided in Police Rules qua safe custody and safe transmission of case property to concerned laboratory and then to trial Court.
8. Report of the Government Analyst under Section 36(2) of the CNSA is of pivotal
importance in narcotics cases. In order to succeed, the prosecution is required not only to prove the factum of recovery, but also exhibit positive report of the Government Analyst drawn in accordance with law elucidated by the Hon'ble Supreme Court in the case titled as
"The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039).
In the case in hand, the report of the Chemical Examiner Ex.P/4- D is defective. The perusal
of record reflects that twelve sealed parcels of Crystal were received in the office of
Chemical Expert on 2nd April 2024, but instead of preparing separate reports for each
sample containing details of the protocols applied, the Chemical Examiner drew up
consolidated report for the aforesaid samples. This was a flagrant disregard of Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, which renders the
reports nullity in the eye of law.
9. Admittedly, all the ingredients, guidelines and directions given by the Hon'ble
Supreme Court with regard to safe custody of the recovered contraband and its safe transmission from the Police Station to the office of Forensic Science Laboratory have been violated. It is well settled proposition of law that when a specific method is provided for doing any legal act in a specified procedure, thus such act is required to be done in that manner, deviation from such procedure would amount to violating the law. Reliance in this regard is placed on the case of Muhammad Yousaf v. The State 2017 MLD 1471 (Balochistan).
10. Another important feature of the case is that the alleged recovery of contraband was
effected from a Fielder Car bearing Registration No.BAL -460, but the prosecution has failed
to establish the ownership of the appellant or his being as last possessor. In absence of any cogent and concrete evidence neither it can be presumed that the said Fielder Car was owned by the appellants or that the appellants are the last possessor of the same and also responsible for recovery of the contraband effected from the Car in question. Unless the prosecution establishes the ownership of the appellant in respect of Fielder Car, he could not be held responsible for the alleged recovery of contraband. The recovery of Crystal from the Fielder in question cannot ipso facto be proof of the guilt of the appellants unless possession and ownership of vehicle is proved against the appellants through confidence inspiring evidence, which is lacking
11. The reappraisal of statements of prosecution witnesses would divulge the fact that not
only the same are contradictory with each other, but in order to cover up the lacunas certain dishonest improvements have also been made. Thus, the prosecution has miserably failed to substantiate the charge against the appellants beyond the shadow of reasonable doubt. The perusal of impugned judgment reveals that the same is suffering from misreading, non-reading and mis -appreciation of material available on record. The above defects in the
prosecution case were not considered by the learned trial Court while passing the impugned judgment. It is well settled principle of law that a wrongful conviction results into injustice, the first tragedy is to the innocent person; the second is to the victim of the offence and to society, because the real offender is not brought to justice, wrong conviction undermine the credibility of the legal system, whenever witnesses are mistaken, it is rarely because they lie or misrepresent the facts. Needless to emphasize that accused were entitled to be extended
benefits of doubt as a matter of right, but the same was withheld. Even an accused cannot be deprived of benefit of doubt, merely because there is only one circumstance, which creates
doubts in the prosecution story, whereas in the case in hand there are series of doubts
apparent from the statements of so- called eye- witnesses. Reliance in this regard is placed on
the case of "Tariq Pervaiz v. The State" 1995 SCMR 1345.
For the above reasons, the appeal is accepted. The impugned judgment dated 15th
October 2024 passed by learned Special Judge, CNS/Additional Sessions Judge, Khuzdar is set-aside and the appellants Sajjad Khan and Shah Wali, both sons of Abdul Sattar, are
acquitted of the charge under Section 9(2)9 of Control of Narcotics Substances (Amendment) Act, 2022. The appellants being in custody; are ordered to be released forthwith, if not required in any other case.
JK/58/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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