2025 PLP 1127 (MLD)

Arbab Muhammad Tahir, J.

Through the instant appeal, the appellant (Ajmal Shah) has impugned judgment, dated 26.01.2023, passed by the learned Special Court (CNS), Islamabad, whereby the appellant has been convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter "Act of 1997") in FIR No.43/2019, dated 24.02.2019, registered under sections 9(c) and 15 of the Act of 1997, at Police Station ANF RD North, Rawalpindi and sentenced in the following terms.- "For the reasons stated, this court has come to the conclusion that the prosecution has succeeded in proving the charge against accused Ajmal Shah son of Saif Ur Rehman, beyond the shadow of reasonable doubt. Therefore, this court found accused Ajmal Shah, son of Saif Ur Rehman, resident of Dawoodzai Nehaqi Tehsil and District Peshawar guilty of the offence under section 9(c) CNSA, 1997 for keeping in his possession charas weighing 12 kilograms. So, accused Ajmal Shah son of Saif Ur Rehman, is hereby convicted under section 9(c) CNSA, 1997 and sentenced to Rigorous Imprisonment for Life, with fine of Rs.100,000/- (Rupees One Hundred Thousand only). In default in payment of fine, the convict shall further undergo (Five) 05 months Simple Imprisonment. The benefit of Section 382-B, Cr.P.C. shall be extended to the convicted."

2. Succinctly, the facts are that on complaint (Exh.PA) of Raja Shoaib Ahmed, Inspector (PW-4), the FIR (Exh.PB) was registered wherein it was alleged that on 24.02.2019, he received spy information that the appellant (Ajmal Shah), who works for notorious drug smuggler Momin Khan (since proclaimed offender), has departed from Peshawar towards Islamabad along with heavy quantity of contraband in Toyota Hiace bearing registration No.LES-1110 (Exh.P2) and if reasonable measures are adopted, he can be arrested along with the contraband. Beliving the spy information credible, Raja Shoaib Ahmed, Inspector (PW-4) constituted a raiding party headed by him, associating Muhammad Imran, Constable (PW-5) and Murtaza Khan HC (not examined as PW). The raiding party reached at railway crossing Tarnol at about 12:45 p.m. and started surveillance. At about 01:00 p.m., the offending vehicle arrived and at the pointation of the spy, who was accompanying the raiding party, the vehicle was intercepted. The person driving the vehicle disclosed his name as Ajmal Shah (appellant). Upon cursory interrogation, he disclosed concealment of the charas in a secret cavity under the second seat, behind the driver's seat. The secret cavity was opened with the tools available with the Investigating Officer, from which ten packets (each weighing 1200 grams charas, total weighing 12 kilograms) wrapped in khaki solution tape were recovered. The Investigating Officer separated 10 sample parcels (10 grams each), one from each packet. One separate parcel was prepared from the total remaining narcotic substance. The recovered narcotic substance along with the offending vehicle were taken into possession vide recovery memo. (Exh.PC). The search of dashboard of the vehicle led to the recovery of registration book of the vehicle and colour copy of CNIC of the accused-Momin Khan, which were taken into possession vide recovery memo. (Exh.PD). Complaint was drafted and dispatched from the crime scene to the police station for registration of FIR through Shahid Iqbal, Driver (not produced as witness), upon which Rawaiz Khan, HC (PW-2) chalked out the FIR (Exh.PB). Uns-caled site plan (Exh.PE) was prepared at the spot. The appellant was arrested at the spot and shifted to the police station along with the recovered articles. The case property was handed over to Abdul Razzaq, HC (PW-1) for safe custody. On 25.02.2019, Rizwan Zafar (PW-3) delivered the sample parcels to the NIH for chemical examination. The appellant was remanded to judicial custody on 27.02.2019.

3. The appellant was formally charge sheeted on 16.09.2020 to which he pleaded not guilty and claimed trial. The prosecution produced five witnesses i.e. Abdul Razzaq, HC (PW-1), Rawaiz Khan, HC (PW-2), Rizwan Zafar, Constable (PW-3), Raja Shoaib Ahmed, Inspector (PW-4) and Muhammad Imran, Constable (PW-5). The report of chemical examiner was adduced as Exh. PF and PG, alongside other incriminating material. The statement of appellant under section 342, Cr.P.C was recorded on 14.01.2023. The appellant did not opt to record his statement under section 340(2), Cr.P.C. On conclusion of trial, the learned trial court convicted and sentence the appellant in the terms reproduced in paragraph 1.

4. Learned counsel for the appellant has argued that the prosecution has miserably failed in proving its case; that the original FIR was not exhibited in evidence; that the carbon copy of the FIR was exhibited as Exh.PB without permission of the court; that no evidence was collected to establish nexus of the appellant with Momin Khan (since P.O.); that no evidence was produced to prove conscious knowledge of the appellant regarding the secret cavity; that the owner of the vehicle was neither interrogated nor any evidence regarding ownership of the vehicle was collected during investigation nor produced before the court to prove mens rea; that the Investigating Officer admitted before the court that no previous criminal record of the appellant exists, meaning thereby that he was first offender; the report of chemical examiner was not confronted to the appellant in his statement under section 342, Cr.P.C.; the conviction and sentence awarded to the appellant vide the impugned judgment is liable to be set aside; that the case is one of acquittal.

5. On the other hand, the learned Special Prosecutor, ANF supported the impugned conviction and sentence and has argued that the prosecution has proved its case against the appellant beyond a reasonable doubt; that huge quantity of contraband was recovered from possession of the appellant; that minor irregularities or contradictions in statement of witnesses does not entitle the appellant to any relief.

6. Heard. Record perused.

7. It is the case of prosecution that on 24.02.2019, the appellant was apprehended along with 12 kilograms of charas, concealed in a secret cavity of the vehicle in his control. Raja Shoaib Ahmed (PW-4) and Muhammad Imran (PW-5) recorded their statements as recovery witnesses before the trial court. It is in the statement of PWs 4 and 5, that after recovery of narcotic substances, 10 packets wrapped in khaki insulation tape and polythene bags total weighing 12 kilograms, the same was packed in one parcel No.11, after separating 10 sample parcels bearing number 01 to 10 (01 sample parcel from each recovered packet). The reports of Chemical Examiner (Exh.PF&PG) show that it has received 10 parcels for the purposes of chemical examination. The relevant portion of examination-in-chief of PW-4 relating to the manner in which the recovered contraband was produced in evidence before the trial court is as follows.- "Sample parcels, parcel of remaining case property Exh.P-1, vehicle LES-1110 Exh.P2 along with key Exh.P-3, registration book Ex.P-4 and colour copy of CNIC of Momin Khan Exh.P-5 were taken into possession by me through recovery memo. Exh.PC witnessed by Murtaza Khan HC and Muhammad Imran Constable."

8. It is noted that examination-in-chief of both the PWs 4 and 5 was recorded on 10.10.2022 and they were cross-examined on 20.12.2022. The order sheets of the trial court in the instant case for the referred dates is reproduced below.- 10.10.2022. "PWs Raja Shoaib Ahmed and Muhammad Imran are present for evidence and their examination in chief recorded as PW-4 and PW-5 respectively but their cross-examination could have been reserved on the request of learned counsel for the accused. PP given to the present PWs. PW Murtaza Khan is also present. Prosecution is directed to produce its witnesses on the next date. SHO is directed to ensure the availability of case property on the next date. To come up on 18.10.2022 and file be put up for prosecution evidence." 20.12.2022. "PWs Raja Shoaib Ahmed and Muhammad Imran are present for cross-examination and their cross-examination completed. Learned SPP gave up PW Murtaza Khan HC being unnecessary and close the prosecution evidence. To come up on 03.01.2023 and file be put up for recording the statement of accused under section 342, Cr.P.C. on the next date fixed."

9. Perusal of the statements of PWs 4 and 5 as well as the order sheets of the said dates, do not mention that the parcel Exh.P1 was de-sealed in the Court and all 10 packets which were recovered from the appellant were exhibited and numbered. The learned Lahore High Court in the case titled "Amjad Saddique v. The State" (2016 PCr.LJ 1800 Lahore) has explained the expression "exhibit" in the following manner.- "In this connection we may observe that word "exhibit" is legally defined as bring forward, bring to light, bring to notice, bring to view, demonstrate, disclose, display, evidence, evince, exhibere, exponere, expose, express, feature, indicate, lay bare, lay open, make clear, make known, make obvious, make plain, manifest, offer for inspection, open up, point out, present, present for consideration, present to view, produce, proponere, reveal, reveal to public notice, set forth, show, submit in evidence, uncover, unveil. Definition of "exhibit" is given in Duhaime's Law Dictionary is as under: "Exhibit: a document or thing produced for inspection of the Court; or shown to a witness when giving evidence or referred to in deposition; or a document referred to in, but not annexed to, an affidavit." The word "exhibit" defined in Black's Law Dictionary, is as under:- "A document, record or other tangible object formally introduced as evidence in Court". The meaning of exhibit mentioned in Collins English Dictionary is as under:- "is a document or object produce in the Court and referred to or identified the witness given evidence". Whereas in Chambers English Dictionary it is defined as under:- "to hold forth or present to view; to present formally or publically; to show; to give as a remedy

n, a document or objects produced in Court to be used a evidence (law); something exhibited; and articles at an exhibition."

10. In the case titled "Aziz Ullah through Legal Heirs v. Muhammad Haneef through Legal Heirs" (PLD 2018 Lahore 132), the expression "exhibit" has been explained as follows.- "Before embarking upon merits of the case, it is necessary and appropriate to assimilate the true meaning and purport of word "Exhibit" as well as its object and effect. After consulting various dictionaries, I have come to the conclusion that it means a document or tangible object produced before the Court for its inspection or shown to a witness while giving evidence or referring the same in his deposition so that it could be taken into possession and retained by the Court on the lis file for reference as well as identification in the judgment and when a party intends to prove a document through witnesses, he only refers that document for its proof, then the Court exhibits the same. The witness has no role in marking the document as exhibit rather it is the sole duty of the Court to assign exhibit number to it so that in the latter part of the proceedings it may be referred and identified from said number, so ex hypothesi exhibit means a document exhibited for the purpose of being taken into consideration in deciding some question or other in respect of proceedings in which it is filed."

11. Sub-rule (1) of rule 22.16 of the Police Rules, 1934 (hereinafter the "Rules"), provides that certain circumstances, police shall seize weapons, articles and property in connection with criminal cases, and take charge of property which is unclaimed. Sub-rule (2) thereof provides, inter alia, that each weapon, article or property (not being cattle) seized under the above sub-rule shall be marked or labelled with the name of the person from whom, or the place where, it was seized, and reference to the case diary or other report submitted from the police station. If articles are made up into a parcel, the parcel shall be secured with sealing wax, bearing the seal impression of the responsible officer, and shall similarly be marked or labelled. Such articles or parcels shall be placed in safe custody, pending disposal as provided by law or rule. Sub-rule (3) thereof provides, inter alia, that the police shall send to headquarters or to magisterial outposts all weapons, articles and property connected with cases sent for trial, as well as suspicious, unclaimed and other property, when ordered to do so by a competent Magistrate.

12. High Court Rules and Orders, Volume III, Part B of Chapter 24 deals with the "trial of the Sessions cases". Rules 14-E, 14-F and 14-H are reproduced below for ready reference.- "14-E. Custody of other articles. - Similar care is often required in tracing the custody of prisoner's substances, personal food, blood-stained clothes etc. The evidence should never leave it doubtful as to what person or persons have had charge of such articles throughout the various stages of the inquiry if such doubt can be cleared up. This is especially necessary in the cases of articles sent to the Chemical Examiner. The person who packs, seals and dispatches such articles should invariably be examined. 14-F. Every article to be produced. Clothes, weapons, money, ornaments, food and every article which forms a part of the circumstantial evidence should be produced in Court and their connection with the case and identity should be proved by witnesses. 14-H. Exhibits.- All exhibits should be marked with a letter or numbers, Articles which are produced in evidence should have a label attached to them bearing a number, and that number should be quoted throughout the record wherever any such article is referred to and should be distinctly marked as "admitted or not admitted". If the exhibits have already been assigned numbers by the police, that series of numbers should be mentioned to avoid confusion. A printed label should be affixed or attached to each exhibit containing the following particulars:- (i) Number of exhibit (ii) Produced by (iii) Admitted (Signature of Court) (iv) Date (v) Case (vi) Description of exhibits. The Sessions Judge, should see that these entries are properly made.

13. As per rule 14-H of the Rules, reproduced above, the case property after de-sealing should have been specifically marked with letter or numbers so that the same could be referred by the said number in the entire proceedings to follow. In the instant case, the learned trial court "presumed" that the parcel (Exh.P1) may have contained the 10 packets of recovered contraband without causing the same to be de-sealed and actually exhibited to public view including the accused/appellant. Whereas, after the case property is exhibited in the open court, it is again sealed with seal of the Court and such fact is incorporated in the evidence as well as the order sheet. This procedure is adopted to preserve the case property for its production before the appellate forum, if so required.

14. Article 10A of the Constitution of the Islamic Republic of Pakistan, 1973 guarantees the right of fair trial and due process. It mandates that whenever a person is tried, it shall be within the four corners of law. The Court has to keep in mind that the criminal proceedings may culminate in conviction and it is the accused facing trial whose liberty is to be curtailed by sending him to prison to serve out a sentence of imprisonment. The Court must, therefore, satisfy its judicial conscience that it is the same case property, which was recovered from the accused by observing, inter alia, its seals, quantity and description as per the case of prosecution. Similarly, in order to prove its case, the prosecution must exhibit before the trial court all incriminating material connecting the accused with the commission of offence. The prosecution as well as the trial court shall not wait for a request from the defence/accused for de-sealing of the parcel so that the case property sealed therein be exhibited in the Court. The court shall not base its findings on the basis of presumption that a parcel which was exhibited in the Court without opening its seals, may have contained incriminating material therein. In the case titled "Ameer Zeb v. The State" (PLD 2012 SC 380), the Hon'ble Supreme Court observed that it is the accused person who is at the receiving end of long and stringent punishments and, thus, safeguards from his point of view ought not to be allowed to be sacrificed at the altar of mere comfort or convenience of the prosecution. In the referred case, it was also observed that the rule of thumb for safe administration of criminal justice is: "The harsher the sentence the stricter the standard of proof".

15. In the present case, it nowhere gleans out from the record that the parcel (Exh.P1) was de-sealed or its contents i.e. 10 packets of contraband were opened to public view/exhibited nor such packets were separately marked.

16. The Investigating Officer, Raja Shoaib Ahmed (PW-4), admitted in his cross-examination that he did not investigate the fact of ownership of the offending vehicle (Exh.P2), wherein the contraband was concealed in the secret cavity. In order to prove conscious knowledge of the appellant and his connection with the narcotic substance recovered from the offending vehicle, it was incumbent upon the Investigating Officer to have investigated the fact of ownership of such offending vehicle. Investigating the ownership of the vehicle was essential to determine the question of conscious knowledge, whether it was the appellant who himself concealed the contraband in the vehicle or the contraband was concealed by the owner keeping the appellant in dark.

17. In order to establish connection of appellant with Momin Khan (allegedly the notorious drug dealer); the prosecution ought to have brought on record reliable evidence. Raja Shoaib Ahmed, Inspector (PW-4), who was the Investigating Officer of the case, admitted in his cross-examination that he did not make any effort to obtain the CDR of cellular mobile numbers of the appellant and Momin Khan or collected any other evidence to prove that both of them were connected and aligned for the commission of offence.

18. The appellant was the first offender. He was earlier not involved in any other criminal case. The learned trial court while awarding the maximum punishment of life imprisonment for possessing 12 kilograms of charas under section 9(c) of the Act of 1997 did not consider this fact.

19. On the other hand, the ocular testimony of the prosecution witnesses remained consistent and their credibility was not undermined. There is no evidence on record to suggest that the case property, specifically the narcotic substance, was not handled in accordance with legal procedures. Ten sample parcels were duly separated from the ten recovered packets of narcotic substance and delivered to the Chemical Examiner on the following day after their recovery. The Chemical Examiner's reports (Exhs. PF and PG) are conclusive and confirmed the recovered substances to be "charas".

20. In view of the above, we conclude that the appellant's conviction does not call for interference. However, the sentence of life imprisonment awarded to the appellant is harsh as compared to the quality of evidence available on record, keeping in view the principles and law enunciated in Ameer Zeb's case, supra.

21. For what has been discussed above, we dismiss the appeal to the extent of conviction. However, the sentence of the appellant is reduced to the period already undergone by him. The period already served out shall include alternate imprisonment in lieu of fine together with benefit in terms of section 382-B, Cr.P.C. JK/26/Isl. Appeal dismissed.