2025 Y L R 777
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ
BASHIR AHMED---Appellant
Versus
The STATE--- Respondent
Criminal Appeal. No. 454 of 2023, decided on 16th October, 2024.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotic substances ---Appreciation of evidence ---
Contradictions in the statements of witnesses ---Six packets of crystal, four packets of
opium, twenty two packets of sheesha and four packet of heroine were recovered from
the vehicle driven by the appellant ---Complainant reiterated what he had reported in his
murasila, but in his statement before the Court he did not state that after the recovery to whom he had handed over six (6) packets of crystal, four (4) packets of powder (heroin), four (4) packets of opium and twenty two (22) packets of sheesha ---Recovery witness
deposed that on 05.03.2023, he apprehended the appellant, while driving a pickup truck and recovered the said narcotics concealed beneath the rear seat of the said pickup,
which were secured through recovery memo ---Recovery witness produced parcels of
samples and narcotics, including a pickup truck---During cross -examination, said
witness admitted that neither six (6) packets of crystal, four (4) packets of opium, twenty two (22) packets of sheesha and four (4) packets of powder (heroin) were sealed separately nor did he mention the case number or name of the accused on the recovered packets ---Said witness admitted that they did not make any entry in the Roznamcha
regarding departure ---Recovery witness in his examination- in-chief admitted that on the
day of incident no other vehicle was checked, contradicting the complainant, who in his statement stated that during patrol duty, they made a blockade on main road and also checked cars ---Moreso, neither in murasila nor in FIR there was any mention of
blockade ---In view of the contradictions highlighted, the prosecution version was found
immensely cloudy ---Appeal against conviction was allowed, in circumstances.
(b) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotic substances ---Appreciation of evidence ---Safe custody
of narcotic substances and its transmission to the laboratory not proved---Six packets of crystal, four packets of opium, twenty two packets of sheesha and four packet of heroin were recovered from the vehicle driven by the appellant ---Malkhana in- charge testified
that on 05.03.2023, Investigating Officer handed over to him parcels Nos. 1 to 40, which he kept in the Malkhana ---Said witness did not state in his examination -in-chief
regarding making entry in Register No.19--- Said witness neither produced copy of
relevant page of Register No.19 nor did he state that when did he hand over the said parcels to Constable, who took the said parcels to Forensic Science Laboratory---Malkhana in -charge also admitted that he did not make any entry in the Roznamcha,
whilst handing over the parcels to Constable and when receiving them back after the chemical analysis ---Constable during his examination- in-chief stated that before
departing to the laboratory his entry was made in the Roznamcha, contradicting the
malkhana in -charge ---Recovery was effected on 05.03.2023, but the parcels were sent to
Forensic Science Laboratory on 13.03.2023--- No explanation had been offered by the
prosecution witnesses for such delay, making 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 Forensic Science Laboratory doubtful ---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 ---
----Conviction--- Principle ---Harsher the punishment, stronger the evidence required for
establishing the indictment.
(d) 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.
Haji Attaullah Langove for Appellant.
Muhammad Younas Mengal, Additional Prosecutor General (APG) for the State.
Date of hearing: 25th September, 2024
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. ---Appellant Bashir Ahmed has brought in the
captioned appeal to set at naught the judgment dated 27- 09-2023 ("impugned judgment")
handed down by Special Judge CNS, Khuzdar ("Trial Court"), arising out of an FIR bearing
No.02 of 2023 (Ex.P/5- A) registered with Levies Station Wadh, District Khuzdar, whereby
the appellant has been convicted and sentenced in the following terms;
"Hence, accused Bashir Ahmed son of Sher Muhammad is found guilty of the offence of keeping in possession Opium weighing 4000 grams so he is convicted under section 9(1) 5(d) of Control of Narcotic Substances Act, 1997 and sentenced to suffer
R.I. for fourteen years and to pay fine in the sum of Rs.300,000/ - (rupees three
hundred thousand). In default of payment of fine he shall undergo further S.I. for nine
(9) months. He is also found guilty of the offence of keeping in possession Heroin weighing 10000 grams (6 Kg Crystal and 4 kg Heroin) so he is further convicted
under section 9(1) 6(f) of Control of Narcotic Substances Act, 1997 and sentenced to
suffer R.I. for life and to pay fine in the sum of Rs.1,800,000/ - (rupees eighteen
hundred thousand). In default of payment of fine he shall undergo further S.I. for
three (3) years. He is also found guilty of the offence of keeping in possession Sheesha (Ice) weighing 10000 grams so he is further convicted under section 9(2)(9)
of Control of Narcotic Substances Act, 1997 and sentenced to suffer R.I. for life and
to pay fine in the sum of Rs.1,800,000/ - (rupees eighteen hundred thousand). In
default of payment of fine he shall undergo further S.I. for three (3) years. All
substantive punishments shall run concurrently. Benefit of Section 382- B, Cr.P.C. is
extended in his favour."
2. Precisely stated, facts as disclosed in murasila (Ex.P/1 -A) sent by complainant Din
Muhammad Levies Dafedar ("LD") (PW- 1) transpires that on 05.03.2023 during patrolling
duty, at about 01:30 pm, a white colored Vigo bearing Registration No.KS -7246 driven by
the appellant was stopped and searched by the levies officials, whereupon six (6) packets of Crystal, four (4) packets of Opium, twenty two (22) packets of Sheesha and four (04) packets of Heroin beneath the rare seat of said vehicle were recovered.
After necessary investigation, the appellant was put on trial, 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. 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.
Averred further that there are material contradictions in the statements of prosecution
witnesses, making the recovery and its safe custody highly doubtful, but the Trial Court, while drawing the impugned judgment has failed to make note of such fact and has not appreciated the evidence in its true perspective, making the impugned judgment unsustainable, which merits to be set -aside.
On the other hand, learned APG controverted the contentions so put -forth by the
learned counsel for the appellant and urged that the prosecution has successfully brought home the indictment against the appellant through confidence inspiring and truthful evidence, including safe transmission of the contrabands from the place of recovery to the malkhana and then to FSL. 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 wall to wall in view of the arguments advanced by the
learned counsel for the adversarial parties. Complainant Din Muhammad LD (PW -1)
reiterated what he had reported in his murasila (Ex.P/1- A). He in his statement before the
court did not state that after the recovery to whom he had handed over six (6) packets of Crystal, four (04) packets of powder (Heroin), four (4) packets of Opium and twenty two (22) packets of sheesha. Javed Ahmed LC (PW -3) is recovery witness. He deposed that on
05.03.2023, he apprehended the appellant, while driving a Vigo pickup and got recovered the said narcotics concealed beneath the rare seat of the said pickup, which were secured through recovery memo. (Ex.P/3- A). He produced parcels of samples, and narcotics,
including a Vigo pickup as Art.P/1 to Art.P/116. During cross -examination, he admitted
that neither six (6) packets of Crystal, four (4) packets of Opium, twenty two (22) packets of sheesha and four (04) packets of powder (Heroin) were sealed separately nor did he
mention case number or name of the accused on the recovered packets. He also admitted that they did not make any entry in the Roznamcha regarding departure. Recovery witness Javed Ahmed LC (PW -3) in his examination -in-chief admitted that on the day of incident
no other vehicle was checked, belying Complainant Din Muhammad LD (PW -1), who in
his statement stated that during patrol duty. They made a blockade on main RCD road near Achhro cross and also checked the cars. Moreso, neither in murasila (Ex.P/1 -A) nor in FIR
(Ex.P/5 -A) there is any mention of blockade. In view of the contradictions highlighted in
the para supra, we have found the prosecution version immensely cloudy.
5. In order to establish the safe custody and transmission, the prosecution produced
Abdul Ghani malkhana in- charge (PW -2). He testified that on 05.03.2023, Asghar Shah NR
IO (PW -5) handed over him parcels Nos.1 to 40, which he kept in the malkhana. He did not
state in his examination -in-chief regarding making entry in Register No.19. He also neither
produced copy of relevant page of Register No. 19 nor did he state that when did he handed over back the said parcels to Zhoaib Khan LC (PW -4), who took the said parcels to FSL,
Karachi. He (PW -2) also admitted that he did not make any entry in the Roznamcha, whilst
handing over the parcels to Zhoaib Khan (PW -4) and receiving back after the chemical
analysis. Zhoaib Khan LC (PW -4) during his examination -in-chief stated that before
departing to Karachi his entry was made in the Roznamcha, belying malkhana in- charge
(PW -2). It is imperative to add here that the recovery was effected on 05.03.2023, but the
parcels were sent to FSL, Karachi on 13.03.2023, whereof no explanation has been offered by the prosecution witnesses, making 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 FSL, Karachi doubtful. SEE; ['The State v. Imam Bakhsh' (2018 SCMR 2039) and 'Kamran Shah v. The State' (2019 SCMR 1217)]. For ease of reference, the relevant para of Imam Bakhsh's case supra is reproduce herein below;
"9. We have noted above that in Criminal Appeals Nos. 523 to 525 of 2017 and
No.22 of 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 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."
[Emphasis supplied]
6. By now it is trite law that harsher the punishment, stronger the evidence for
establishing the indictment, which seems to be lacking in the instant case. The Supreme Court in the case of "Ahmed Ali v. The State" (2023 SCMR 781) held 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. Aftermath of the above discussion is that, the prosecution has miserably failed to
discharge its burden of proving the recovery, safe custody and transmission of the narcotics in
view of the fatal discrepancies highlighted hereinabove, as such, we are left with no other
option but to set at naught the impugned judgment.
8. Corollary, the appeal is allowed and consequently, the impugned judgment of the
Trial Court dated 27.09.2023 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/111/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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