2025 P Cr. L J 328
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ
MUHAMMAD QASEEM ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 362 of 2023, decided on 16th October, 2024.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S.9(1)3(e) ---Possession and transportation of 40 kilograms Charas ---Appreciation of
evidence---Benefit of doubt ---Recovery of narcotic substance doubtful ---Prosecution
case was that 40 -kilogram Charas in 40 packets was recovered from secret cavity of the
vehicle driven by accused---Complainant neither in his murasila nor in his statement
before the Court stated that after the recovery to whom he had handed over the recovered contraband--- Complainant did not state that when Investigating Officer came to the
place of occurrence---Recovery witness, who testified in line with the testimony of complainant reiterated, what complainant had stated ---Said witness also did not state
that as to whom the narcotic was handed over after recovery--- In absence of such
explanation, the chain of recovery from the place of occurrence to the malkhana had not been found to be linked---Recovery of narcotic was allegedly made from the secret cavities of the CNG cylinder ---Prosecution witnesses had not explained as to what kind
of cavities were made in the CNG cylinder and as to how and in what manner the recovery was effected from such cavities ---Moreso, it had also not been explained that
how the CNG cylinder was unassembled or if not unassembled then in what manner the recovery was effected ---Prosecution during trial even did not produce the CNG cylinder
in order to see and examine as to how the 'charas' was concealed therein, which casted doubt in the recovery--- Appeal against conviction was allowed, in circumstances.
Aslam Khan v. The State 2021 PCr.LJ 1018 and Muhammad Sajjad v. The State 2023
YLR 408 rel.
(b) Control of Narcotic Substances Act (XXV of 1997) ---
----S.9(1)3(e) ---Possession and transportation of 40 kilograms Charas ---Appreciation of
evidence---Safe custody and safe transmission of the narcotics for analysis not
established ---Prosecution case was that 40 -kilogram Charas in 40 packets was recovered
from secret cavity of the vehicle driven by accused ---In order to substantiate the safe
custody and transmission of the narcotic, the prosecution produced Head Constable; he testified that on 01.12.2022, Investigating Officer handed over to him parcels Nos.1 to 40 & 1- A to 40 -A, whereof he made entry in Register No.19 at serial No.1102 and that
on 03.12.2022, at 11:00 am, he handed back parcel Nos.l to 40 to Investigating Officer for onward transmission to the Narcotics Testing Laboratory for chemical analysis ---
Said witness produced copy of relevant page of Register No.19; the perusal of column Nos.5, 6, 7 & 8 of the said page of Register No.19 showed that the same had been left blank, which raised questions with regard to the evidentiary value of such documents as it offended Rule 22.49 of Police Rules, 1934 ---Investigating Officer produced positive
Narcotics Testing Laboratory Reports ---Record reflected that the recovery was effected
on 01.12.2022, but the office of Narcotics Testing Laboratory received the parcels on 03.12.2022, whereof no explanation had been offered by any of the prosecution witness, which put a severe dent into the entire process of safe custody and transmission of the narcotic from the place of recovery to the malkhana and then its onward transmission to Narcotics Testing Laboratory--- Thus the entire case of the prosecution fell on the ground---
Appeal against conviction was allowed, in circumstances.
The State v. Imam Bakhsh 2018 SCMR 2039 and Kamran Shah v. The State 2019
SCMR 1217 rel.
(c) Criminal trial ---
----Benefit of doubt ---Principle ---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.
Ahmed Ali v. The State 2023 SCMR 781 rel.
Manzoor Ahmed Kakar and Dawood Khan for the Appellant.
Muhammad Younas Mengal, Additional Prosecutor General ("APG") for the State.
Date of hearing: 26th August, 2024.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J.-- Appellant has called in question the veracity
and legality of judgment dated 19.08.2023 ("impugned judgment") rendered by learned Additional Sessions Judge -IV, Quetta -Special Judge CNS ("Trial Court"), whereby the
appellant was convicted and sentenced under section 9(1)3(e) of Control of Narcotic Substances (Amended Act of 2022) Act of 1997 to suffer R.I for life with a fine of Rs.800,000/ - (Eight hundred thousand) and in default thereof, to further undergo for two (2)
months S.I with the premium of section 382- B of Cr.P.C., emanating from a case vide FIR
No.353 of 2022 (Ex.P/4 -A) registered with Police Station Airport, Quetta.
2. Condensed but relevant facts essential for disposal of the instant appeal are that
complainant Abdul Hayee SHO (PW- 1) got lodge the FIR ibid on the basis of application
(Ex.P/1 -A) averring therein that on 01.12.2022, on a tip off at about 09:45, an Alto Car
bearing Registration No.S -2702 driven by the appellant was intercepted, and on search
recovered forty (40) packets of baked 'charas' from the secret cavities made in the CNG cylinder, each weighing 1000 grams, total forty (40) kgs, whereof 10 -10 grams from each
packet were extracted for chemical analysis and were kept in parcel Nos.1 to 40, whereas remaining 'charas' was sealed in parcel Nos.1 -A to 40- A.
3. The appellant was put on trial, where on commencement of the trial, the prosecution
in order to drive home the charge produced four (4) 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, thus the Trial Court returned a verdict of guilt, whereby the appellant was convicted and sentenced vide impugned judgment in the terms mentioned in para supra.
4. Messrs Manzoor Ahmed Kakar and Dawood Khan, 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 any trustworthy and confidence inspiring evidence, holding him to be guilty of the charge. They maintained that there are glaring contradictions in the statements of the prosecution witnesses, which makes the entire case of prosecution doubtful and that the prosecution has failed to prove the safe custody and transmission of the contraband, thus on the basis of above illegalities prayed for acquittal of the appellant.
On the other hand, Mr. Muhammad Younas Mengal learned APG resisted and
vehemently opposed the contentions so put -forth by learned counsel for the appellant. He
urged that prosecution has successfully proved the recovery of the narcotics from the possession of the appellant and above all, the prosecution has also proved the safe custody and transmission of the narcotics through tangible evidence, more particularly by procuring positive FNTL reports and that the Trial Court has also rightly appreciated the evidence available on record, while drawing the impugned judgment, thus requested for dismissal of the appeal.
5. Heard. Record sussed out cover to cover in view of the arguments advanced by the
learned counsel for the parties. Complainant Abdul Hayee (PW -1) testified that on 01.12.2022
on a tip off, he apprehended the appellant at 09:45 am at a blockage made near Madina Hotel
western bypass, while driving an Alto Car bearing Registration No.S -2702 and that on search,
recovered forty (40) packets of 'charas' from the secret cavities made in the CNG cylinder, each containing 1000 grams, total forty (40) kgs, whereof 10- 10 grams from each packet were
extracted for chemical analysis and parcels Nos.1 to 40 were prepared, whereas remaining
990- 990 grams of 'charas' were sealed in parcel Nos.1 -A to 40 -A. Complainant Abdul Hayee
(PW-1) neither in his murasila (Ex.P/1 -A) nor in his statement before the court stated that
after the recovery to whom he had handed over the recovered contraband. He also did not
state that when did Masood Ahmed ("IO") (PW -4) came on the place of occurrence. Abdul
Majeed ASI (PW -2) is the recovery witness, who testified in line with the testimony of
complainant (PW -1) and reiterated, what complainant Abdul Hayee (PW- 1) had stated. He
produced recovery memo. (Ex.P/2- A), parcel Nos.1- A to 40 -A as Art.P/1 to Art.P/40, sample
of seal as Art.P/41 to Art.P/80, forty (40) packets of 'charas' as Art.P/81 to Art.P/120 and vehicle bearing Registration No.S -2702 as Art.P/121. Before the court, he also did not state
that as to whom the narcotics were handed over after the recovery. In absence of such
explanation, we believe that the chain of recovery from the place of occurrence to the
malkhana has not been found to be linked.
6. In order to substantiate the safe custody and transmission of the narcotics, the prosecution
produced Muhammad Hassan Head Constable (PW -3). He testified that on 01.12.2022, Masood
Ahmed IO (PW -4) handed over him parcels Nos.1 to 40 and 1- A to 40- A, whereof he made entry
in Register No.19 at serial No.1102 and that on 03.12.2022, at 11:00 am, he handed over back parcel Nos.1 to 40 to IO (PW -4) for onward transmission to the Federal Narcotics Testing
Laboratory Balochistan, Quetta ("FNTL, Quetta") for chemical analysis. He produced copy of
relevant page of Register No.19 as (Ex.P/3- A). The perusal column Nos.5, 6, 7 and 8 of the said
page of Register No.19 shows that the same have been left blank, which raises questions with regard to the evidentiary value of such documents as it offends Rule 22.49 of Police Rules, 1934.
Masood Ahmed IO (PW -4) produced positive FNTL reports (Ex.P/4- H-1) to (Ex.P/4-
H-40). Record reflects that the recovery was effected on 01.12.2022, but the office of FNTL,
Quetta received the parcels on 03.12.2022, whereof no explanation has been offered by any of the prosecution witness, which puts a severe dent into the entire process of safe custody and transmission of the narcotics from the place of recovery to the malkhana and then its onward transmission to FNTL, Quetta, thus the entire case of the prosecution falls on ground. In this regard, we are fortified with the view expounded in 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 the 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."
[Emphasize added]
7. Now adverting to the recovery of narcotics allegedly made from the secret cavities of
the CNG cylinder. It may be observed that the prosecution witnesses have not explained as to what kind of cavities were made in the CNG cylinder and as to how and in what manner the
recovery was effected from such cavities. Moreso, it has also not been explained that how the
CNG cylinder was unassembled or if not unassembled then in what manner the recovery was effected. Above all, the prosecution during trial even did not produce the CNG cylinder in order to see and examine as to how the 'charas' was concealed therein, which casts doubt in the recovery. To fortify the above view, we would like to place reliance upon the judgments
titled as "Aslam Khan v. State" (2021 PCr.LJ 1018) and "Muhammad Sajjad v. State" (2023
YLR 408). For ease of reference, the relevant portion of 'Aslam Khan's case supra is
reproduced herein below;
"Even during trial the alleged fuel tank has not been produced before the court for exhibition of the same in support of prosecution case, so when the fuel tank from which the contraband was recovered has not been produced, then how it could be proved that the contraband was recovered from the same. It is also not mentioned anywhere that how and through which tool, the said fuel tank was opened as according to PW.5 Lal Gul SI, the contraband was in shape of slabs, so how it was recovered from the fuel tank having a small hole.
[Underline is ours]
Likewise, the relevant excerpt of 'Muhammad Sajjad's case supra is as infra;
"6. Likewise, the patrol -tank from which the illegal stuff was allegedly recovered was
neither produced before the court nor it was exhibited to confirm as to whether it was having the capacity to contain such a huge quantity of narcotics, which aspect of the case also makes the story of prosecution doubtful,"
[Emphasis added]
8. The apex court in the case of 'Ahmed Ali v. The State' (2023 SCMR 781) 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.
9. In wake of the above discussion, we have arrived at a firm conclusion that the
prosecution has not only miserably fell short to prove the safe custody and transmission, but also the recovery of contraband.
10. For what has been discussed hereinabove, the appeal is allowed and consequently, the
impugned judgment of the Trial Court dated 19.08.2023 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/110/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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