2025 Y L R 1774
[Balochistan (Sibi bench)]
Before Zaheer- ud-Din Kakar and Shaukat Ali Rakhshani, JJ
MUHAMMAD ISHAQ. ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. (s)17 of 2023, decided on 12th September, 2023.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotic substance ---Appreciation of evidence ---Entire
recovery of narcotic substance doubtful ---Prosecution case was that 25 -kilograms baked
charas was recovered from the truck driven by the accused ---Recovery witness produced
the recovery memo. of recovered 'charas' and produced parcel No.1, pertaining to the
sample of narcotic weighing 5000 grams, whereas parcel No.2 pertaining to remaining 20,000 grams of narcotic ---Parcel No.1 pertaining to the sample of narcotic weighing
5000 grams was handed over to "NA" Constable, who deposited the same in the office of Federal Narcotics Testing Laboratory, which was chemically tested and analyzed, where in the process of testing 300 grams of charas his consumed and remaining 4700 grams
was returned back, but recovery witness while testifying before the Court did not mention regarding consumption and return of said samples from the office of Federal Narcotics Testing Laboratory, which was astonishing, making his statement cloudy, whereof no explanation had been offered by any of the prosecution witnesses ---More -so, in the
instant case, although separate sample had been drawn, but consolidated sample of 5000 grams was put in parcel No.1 and sent to Federal Narcotics Testing Laboratory, henceforth, in the attending circumstances only one kg charas could be considered to have been recovered from the appellant ---Circumstances established that the prosecution
had miserably failed to prove the charge against the appellant beyond any shadow of doubt ---Appeal against conviction was allowed, in circumstances.
Ameer Zeb v. The State PLD 2012 SC 380 rel.
(b) 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 safe transmission to the laboratory not proved---Prosecution case was that 25 -kilograms baked charas was recovered from the truck driven
by the accused ---Prosecution in order to establish the safe custody and transmission of
the narcotics mainly relied upon the statement of recovery witness, who testified that after the registration of the FIR, the investigation was assigned to Investigating Officer, who handed over him parcel Nos.1 and cash amount of Rs.4300/ - and a spare wheel
which were kept by him in the malkhana, but did not mention about the date on which he received the same from Investigating Officer ---On 20.01.2022 parcel No.1, pertaining to
5000 grams of 'charas' was handed over to "NA" Constable on the directions of the Investigating Officer for onwards submission to the office of Federal Narcotics Testing Laboratory for chemical analysis, whereof positive report dated 25.01.20232 was received ---Prosecution witness neither mentioned that he made entry of the recovered
articles in Register No.19 nor produced the extract and copy of the said register and also admitted in his statement recorded under S.161 of Cr.P.C that neither Investigating Officer obtained or demanded any extract of the certified copy of the said register nor he obtained any receipt from "NA" Constable regarding deposit of parcel No.1 in the office of Federal Narcotics Testing Laboratory, for chemical analysis, which put a severe dent into the entire process of safe custody and transmission of the narcotic ---Circumstances
established that the prosecution had miserably failed to prove the charge against the appellant beyond any shadow of doubt ---Appeal against conviction was allowed, in
circumstances.
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 rel.
Changaiz Baloch for Appellant.
Jameel Akhtar Gajani, APG for the State.
Date of hearing: 23rd August, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .---Being dismayed, appellant Muhammad Ishaq
has brought before us the captioned appeal, whereby he has impugned the judgment dated
26.01.2023 ("impugned judgment") penned by learned Judge -CNS Court, Jaffarabad at Dera
Allah Yar ("Trial Court"), whereby he was convicted and sentenced under Section 9 (c) of Control of Narcotic Substances Act of 1997 ("Act of 1997") to suffer for seven years (7) and six (6) months R.I with a fine of Rs.35,000/ -(thirty five thousand) and in default of payment
of fine to further undergo six (06) months and fifteen (15) days S.I with the premium of Section 382 -B of Cr.P.C., emanating from a case vide FIR No.02/CH/2022 (Ex.P/1- A)
registered with Excise Station, Dera Allah Yar by complainant Saifullah IP (PW -1) against
the appellant for possessing twenty five (25) kgs of baked charas oncealed in the spare wheel of the vehicle.
2. Pithily, relevant facts of the prosecution case are that on 19.01.2022 complainant
Saifullah IP (PW -1) along with Excise contingent, at about 04:30 pm, carried blockade near
Shahi Chowk, Quetta Dera Allah Yar Road and intercepted Bedford truck bearing
Registration No.LIT -1432 being driven by the appellant, whereupon search of the said
vehicle recovered twenty five (25) kgs of baked 'charas' concealed in the spare wheel of the said truck having yellow color packaging, whereof 200 grams from each packet, total 5,000 grams were separated for chemical analysis and sealed in parcel No.1, whereas remaining 'charas' weighing 20,000 grams were put in parcel No.2.
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. Learned counsel for the appellant inter alia contended that the prosecution has neither
proved the recovery of the narcotics nor its safe custody and transmission, but the Trial Court has recorded the conviction for the reasons contrary to the evidence available on record. He added that there are material contradictions in the statements of the witnesses, which has made the recovery of narcotics highly doubtful, but the Trial Court has failed to appreciate such aspect of the case. On the basis of above illegalities, learned counsel for the appellant, prayed for acquittal of the appellant.
On the other hand, learned APG resisted and vehemently opposed the contentions put
forth by the 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, which has rightly been appreciated by the Trial Court while drawing the impugned judgment, thus requested for dismissal of the appeal.
4. Heard. Record sussed out.
5. Saifullah IP (PW -1) is the Seizing Officer, who testified that on 19.01.2022, he along
with other personnel of Excise Department at 4:30 pm, carried a blockade near Shahi Chowk, Quetta Dera Allah Yar Road and intercepted Bedford truck bearing Registration No.LIT -
1432 driven by the appellant, whereupon search of the vehicle recovered twenty five (25) kgs
of baked 'charas' concealed in the spare wheel of the said truck, having yellow color
packaging, whereof 200 grams from each packet, total 5000 grams were extracted for chemical analysis and sealed in parcel No.1, whereof remaining 20,000 grams were put in parcel No.2 on the basis whereof FIR (Ex.P/1- A) was registered. Recovery witness Jaffar Ali
Constable (PW -2), reiterated the statement of Seizing Officer (PW- 1) and produced the
recovery memo. of recovered 'charas', Bedford truck with spare wheel and cash amount of
Rs.4300/ -. He produced parcel No.1, pertaining to the sample of narcotics weighing 5000
grams as Art.P/2 -2, whereas parcel No.2 pertaining to remaining 20,000 grams of narcotics
as Art.P/2 -1 to Art.P/2- 27. His statement was recorded on 09.06.2022, whereas parcel No.1
pertaining to the sample of narcotics weighing 5000 grams was handed over to Nisar Ali
Constable (PW -3) on 20.01.2022, who deposited the same in the office of Federal Narcotics
Testing Laboratory Balochistan, Quetta "FNTL, Quetta"), which were chemically tested and analyzed, where in the process of testing 300 grams of charas were consumed and remaining 4700 grams were returned back, but recovery witness Jaffar Ali Constable (PW -2), while
testifying before the Court did not mention regarding consumption and return of said samples
from the office of FNTL, Quetta, which is astonishing, making his statement cloudy, whereof
no explanation has been offered by any of the prosecution witnesses. More -so, in the instant
case, albeit separate sample has been drawn, but consolidated sample of 5000 grams were put
in parcel No.1 and sent to FNTL, Quetta, henceforth, in the attending circumstances only one kg charas can be considered to have been recovered from the appellant in view of the dictum
expounded in the case of "Ameer Zeb v. The State" (PLD 2012 SC 380), wherein it was held
that from each packet a separate sample must be secured for chemical analysis and if such
protocol is not observed then the consolidated sample drawn from each packet shall represent only one packet of narcotics.
6. The prosecution in order to establish the safe custody and transmission of the
narcotics mainly relies upon the statement of recovery witness Jaffar Ali (PW- 2), who
testified that after the registration of the FIR, the investigation was assigned to Javed Ahmed Investigating Officer ('IO") (PW -4), who handed over him parcel Nos.1 and 2, cash amount
of Rs.4300/ - and a spare wheel which were kept by him in the malkhana, but did not mention
about the date on which he received the same from IO (PW -4). On 20.01.2022 parcel No.1,
pertaining to 5000 grams of 'charas' was handed over to Nisar Ali Constable (PW -3) on the
directions of the IO (PW -4) for onwards submission to the office of FNTL, Quetta for
chemical analysis, whereof positive report dated 25.01.20232 was received. He neither mentioned that he made entry of the recovered articles in Register No.19 nor produced the extract and copy of the said register and also admitted in his statement recorded under section 161 of Cr.P.C. that neither IO (PW -4) obtained or demanded any extract of the
certified copy of the said register nor he obtained any receipt from Nisar Ali Constable (PW -
3) regarding deposit of parcel No.1 in the office of FNTL, Quetta for chemical analysis, which puts a severe dent into the entire process of safe custody and transmission of the narcotics, which offends the dictum expounded in 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 No.9 of Imam Bakhsh's case 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 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]
7. In view of the above discussion, we have arrived at the firm conclusion that the
prosecution has miserably failed to prove the indictment and the reasons of conviction drawn
by the learned trial judge are contrary to the evidence on record.
8. For the foregoing reasons, the appeal is allowed, and in consequence thereof the
impugned judgment dated 26.01.2023 passed by the Trial Court is set aside and appellant Muhammad Ishaq son of Sultan Muhammmad is acquitted of the indictment.
The appellant serving sentence be set free, if not incarcerated in any other case.
JK/35/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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