2026 PLP 937 (SCMR)

ISHTIAQ IBRAHIM, J.

Acting upon a tip-off regarding the transportation of narcotics in a white Honda Civic motorcar bearing registration No. LES-8866 from Peshawar to Punjab, on 17.12.2024, Saud ASI (PW-5) while on routine patrolling duty along with other police officials, laid a barricade on Tarnab G.T. Road and at about 2000 hours intercepted the aforesaid motorcar allegedly being driven by the petitioner Attique Ullah. Upon search of the vehicle, he recovered one packet containing ICE/Amphetamine weighing 1005 grams from beneath the driver's seat, and five packets containing charas from the trunk of the motorcar, each weighing 1200 grams, making a total of 6000 grams of charas. From the recovered contraband, he separated one gram from the packet of ICE and five grams from each packet of charas as samples for chemical analysis by the FSL and sealed into separate parcels. He also sealed the remaining quantity of ICE and charas in separate parcels and thereafter took the same into possession vide recovery memo Exh.PW-5/1 in the presence of marginal witnesses. He then drafted Murasila Exh.PA/1 on the basis of which Fazal Kareem ASI/Moharrir, registered case FIR No. 2481 dated 17.12.2024 (Exh.PA) under Sections 9(d) and 11(c) of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 ('Act of 1997(sic)'), at Police Station Chamkani, Peshawar, against the petitioner.

2. Upon completion of the investigation, a report under Section 173 of the Code of Criminal Procedure, 1898 ('the Code'), was submitted against the petitioner before the Special Judge, Anti-Narcotics Court-II, Peshawar ('the Trial Court'). After facing a full-dressed trial, the Trial Court vide judgment dated 30.08.2025, convicted and sentenced the petitioner under Sections 9(d) and 11(c) of the Act of 2019, to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 7,00,000/-, and in default thereof, to further undergo simple imprisonment for six months. The benefit of Section 382-B of the Code was extended to him.

3. The Peshawar High Court, Peshawar ('the High Court'), while dismissing the appeal filed by the petitioner, upheld the conviction and sentence awarded by the Trial Court, vide judgment dated 10.10.2025 ('the impugned judgment').

4. We have heard the arguments advanced by the learned counsel for the petitioner as well as the learned Additional Advocate General, Khyber Pakhtunkhwa, appearing on behalf of the State, and have carefully perused the record, the evidence, and the judgments rendered by the courts below.

5. It is a well-entrenched principle of criminal jurisprudence that where the law prescribes stringent and severe punishments, the standard of proof required to sustain a conviction must be correspondingly strict, flawless, and unimpeachable. The harsher the punishment, the higher the burden on the prosecution to prove its case beyond reasonable doubt. Upon evaluating the prosecution's evidence, particularly the testimony of Saud ASI (PW-5), the seizing officer, Constable Nejahat Ullah (PW-6), a marginal witness to the recovery memo Exh PW-5/1. Essa Khan ASI (PW.1) and Fazal Kareem ASI (PW.2), we find that there exist material and serious contradictions in their statements. According to the testimony of Saud ASI, he himself took the accused, the motorcar, and the sealed parcels containing the samples and the case property to the Police Station and handed over the same to Essa Khan ASI/Moharrir of the Police Station, for safe custody. Contrary, PW Constable Nejahat Ullah deposed that he had taken the Murasila and other documents, along with the case property, to the Police Station, and that his statement in this regard was also recorded by the Investigating Officer under Section 161 of the Code. He further stated that when he handed over the case property to Moharrir of the Police Station, he made entry in Register No. 19 in his presence. Contrary to the version of PW Constable Nejahat Ullah, Essa Khan ASI (PW-1), stated that it was the seizing officer who handed over him the accused along with the case property. Fazal Kareem ASI/Moharrir (PW-2), deposed that Constable Wajahat Ullah had brought Murasila Exh.PA/1 Murasila, recovery memo, and arrest card and on the basis of Murasila he registered FIR. As per contents of FIR and statement of seizing Officer Saud ASI, he handed over only Murasila to Constable Nejahat Ullah, who took the same to the Police Station. The version of the seizing Officer in the FIR as well as in his statement is contradictory with the statements of constable Nejahat Ullah and Fazal Kareem ASI/Moharrir as in cross-examination Fazal Kareem ASI had categorically stated that Constable Nejahat Ullah had handed over him Murasila, recovery memo and card of arrest of the accused.

6. The contradictions in the testimony of the material prosecution witnesses not only cast serious doubt on the chain of safe transmission and custody of the samples and case property from the place of recovery to the police station, but also strike at the very root of the prosecution's case. Consequently, it cannot be said with any degree of certainty that the prosecution succeeded in establishing the safe custody and transmission of the recovered contraband. This defect alone is sufficient to vitiate the prosecution's case and entitle the petitioner to acquittal, in light of the settled law laid down by this Court in Qaiser Khan v. The State through Advocate-General, Khyber Pakhtunkhwa, Peshawar (2021 SCMR 363), Mst. Razia Sultana v. The State and another (2019 SCMR 1300), The State through Regional Director, ANF v. Imam Bakhsh and others (2018 SCMR 2039), Ikram Ullah and others v. The State (2015 SCMR 1002), and Amjad Ali v. The State (2012 SCMR 577). In these judgments, it has been consistently held that a failure to establish safe custody and transmission of contraband is fatal to the prosecution's case, and the benefit of doubt arising therefrom must invariably go to the accused.

7. Accordingly, this petition is converted into an appeal and allowed. The conviction and sentence of the appellent recorded by the Courts below are set aside and he is acquitted of the charge levelled against him. He be set at liberty forthwith, if not confined in any other case. JK/A-9/SC Appeal allowed.