2025 PLP 1730 (SCMR)

MALIK SHAHZAD AHMAD KHAN, J.

Farman Ali and Mizail Shah (appellants), were tried by the learned Sessions Judge/Judge on Special Task, Peshawar, pursuant to a case registered vide FIR No. 122/2017, dated 30.01.2017, registered under Section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station Hayatabad, Peshawar. The learned Trial Court vide its judgment dated 21.11.2017 convicted the appellants under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced each of them to imprisonment for life. Appellants were also directed to pay fine of Rs. 100,000/- each or in default thereof to further undergo six months simple imprisonment each. Benefit of Section 382-B, Cr.P.C. was also extended in favour of the appellants. In appeal, the learned High Court maintained the convictions and sentences of the appellants recorded by the learned Trial Court.

2. As per brief allegations leveled in the FIR (Ex. PA), on 29.01.2017, Sardar Hussain Inspector/SHO (PW-1) received information to the effect that huge quantity of contraband would be smuggled in Hino Dumper truck of white color bearing Registration No. TKA-888-Balochistan from tribal territory to Punjab. The complainant immediately rushed to the place of occurrence i.e. Karkhano Check Post, where Khair-ul-Bashar ASI (PW-7), Nishat HC, and other police contingents were already present and started surveillance. In the meantime at about 21:10 hours, the above-said dumper truck reached the place of nakabandi, which was stopped for the purpose of checking. On query the driver of the dumper disclosed his name as Mizail Shah (appellant), while the other person sitting with the driver disclosed his name as Farman Ali (appellant). During the search of the vehicle, 82 sacks were recovered from its secret cavities and each sack was containing twenty (20) packets of charas weighing 1000 grams each. The complainant drafted Murasila (Ex. PW-1/3) and sent the same to police station through constable Imdad (PW-3) for registration of case. Sardar Hussain Inspector/SHO (PW-1) took into possession the contraband vide recovery memo. Ex. PW1/2 and then separated 5 grams from each packet and sealed the same into parcels Nos. 1 to 1640 whereas the remaining quantity 19900 grams in parcels Nos. 1641 to 1722 and affixed 3 seals of HA monograms over the parcel. The report of the Chemical Examiner was received in the positive. The prosecution produced seven (07) witnesses in support of its case during the trial. In his statement recorded under Section 342, Cr.P.C., the appellants denied the allegations leveled against them and pleaded that they were falsely involved in this case.

3. Arguments heard. Record perused.

4. It is by now well settled that as very stringent punishments have been provided for the offences under the Control of Narcotic Substances Act, 1997, therefore, the prosecution in such like cases is bound to prove its case beyond the shadow of any slightest doubt and the benefit of even a slightest doubt is to be extended to the accused as observed by this Court in the cases of Ameer Zeb v. State (PLD 2012 SC 380), Muhammad Hashim v. State (PLD 2004 SC 856). Keeping in view the parameters laid down in the above referred judgments, we proceed to decide the instant case.

5. We have straightaway noted that safe custody of the parcels of samples and the parcels of case property of the recovered narcotics has not been proved in this case by the prosecution beyond the shadow of doubt. Sardar Hussain Inspector/SHO (PW-1) is the complainant in this case. He stated that after completing the recovery proceedings, he took both the appellants, contraband along with parcels and the vehicle to the police station and handed over the same to Shahid Khan ASI/Moharrar (PW-4). Shahid Khan ASI (PW-4) stated that during the days of occurrence, he was posted at police station Hayatabad. He further stated that Sardar Hussain Inspector/SHO (PW-1), handed over to him sample parcels total 1640 in number each 5/5 grams Charas for onward transmission to the office of Forensic Science Laboratory and 82 sacks of case property for safe custody in the Mallkhana of the police station. He also stated that he sent 1640 parcels weighing 5 grams each to the Forensic Science Laboratory along with application for Forensic Science Laboratory for analysis through Rifaz 5915/C. However, we have noted that the said Rifaz 5915/C through whom 1640 samples of the contraband material were sent to the Forensic Science Laboratory has not been produced in the witness box by the prosecution. No valid reason has been given before the learned trial Court for non-production of the abovementioned PW in the witness box. We have also noted that the name of the said Rifaz 5915/C, has also not been mentioned in the calendar of witnesses in report under Section 173, Cr.P.C. We have gone through the report of Forensic Science Laboratory (Ex. PZ), which depicts that the name of the person who deposited the sample parcels in the said office has not been mentioned therein and only the No. 5915, has been mentioned. We have further noted that Imdad HC (PW-3), while appearing in the witness box before the learned trial Court stated that he took Murasila, the recovery memo, the card of arrest, application for Forensic Science Laboratory along with parcels to the police station and handed over the same to Javed ASI. However, upon perusal of the deposition of Javed ASI (PW-6), we have noted that said PW does not make any mention of receipt of the said parcels of Charas and only mentions receipt of the Murasila (Ex. PA/3) sent by Sardar Hussain Inspector/SHO (PW-1). However, as noted earlier, as per the deposition of Sardar Hussain Inspector/SHO (PW-1), the said samples were handed over to Shahid Khan (PW-4), Moharrar for onward transmission to the Forensic Science Laboratory. This ambiguity as to who was handed over the samples parcels of the Charas raises serious doubts regarding the chain of custody of the contraband material by the prosecution and the genuineness of the prosecution story, the benefit of which ambiguities and doubts is to be extended to the appellants as a matter of right.

6. It has been time and again held by this Court that in order to prove a charge under Section 9(c) of the Control of Narcotic Substances Act, 1997, the prosecution has to establish a safe custody of the parcel at each and every step starting from the point of recovery till the safe transmission and receipt of the parcels at the Forensic Science Laboratory. Any missing links in this chain is fatal to the prosecution case, the benefit of which has to be extended to the accused. The prosecution in such cases is bounded with the responsibility of producing the witnesses responsible for transmitting the samples to the Forensic Science Laboratory. Reference in this context may be made to case titled 'Abdul Haq v. The State' (2025 SCMR 751) wherein it was observed: "...The chain of safe transmission of case property i.e. parcels each containing sample of ten grams opium and the parcel containing remaining quantity of opium from the spot to Police Station and thereafter to the FSL could not be established by the prosecution, which made the report of the chemical examiner unsafe and unreliable for justifying conviction of the accused the prosecution had to establish that the chain of custody was safe, secure and indisputable in order to place reliance on the report of the chemical examiner, and in this case the prosecution has failed to establish such chain of safe custody and transmission of samples of the narcotic from the place of seizure to Police Station and thereafter to the chemical examiner. The sanctity of the chain of transmission stands as the cornerstone for maintaining the integrity and evidentiary credibility, particularly in narcotics cases, where the law imposes severe and inexorable punishments. Any rupture or inconsistency in the chain of custody strikes at the very root of the prosecution's case, rendering the evidence susceptible to doubt and challenge. It is an established principle that the prosecution bears the burden of ensuring an unbroken, meticulously documented chain of custody, so as to preclude any possibility of tampering, substitution, or contamination. If the prosecution fails to establish an unbroken chain of transmission of the narcotic sample and any breakage or discrepancy is observed in the custody of the recovered substance, the "benefit of such lapse must necessarily be extended to the accused. It is a well-settled principle of criminal jurisprudence that when the prosecution's evidence is tainted with doubt, the scales of justice must tilt in favor of the accused. Any failure to prove the safe and continuous handling of the narcotic sample from seizure to forensic analysis not only weakens the prosecution's case but also vitiates the reliability of the evidence, entitling the accused to the benefit of the doubt ... In this regard, reliance is placed upon the judgments rendered by this Court in cases titled "Qaiser Khan v. The State" reported as 2021 SCMR 363, "Mst. Sakina Ramzan v. The State" reported as 2021 SCMR 451, "Zubair Khan v. The State" reported as 2021 SCMR 492 and "Asif Ali and another v. The State" reported as 2024 SCMR 1408." Further reference may be made to case titled 'Javed Iqbal v. The State' (2023 SCMR 139) wherein it was held that: "

4. We have heard the learned counsel for the appellant, learned Additional A.G. KP, perused the record and observed that in this case, the recovery was effected on 18.12.2013 and the sample parcels were received in the office of chemical examiner on 20.12.2013 by one FC No,1007 but the said constable was never produced before the Court. Even the Moharrar of the Malkhana was also not produced even to say that he kept the sample parcels in the Malkhana in safe custody from 18.12.2013 to 20.12.2013 ... It is to be noted that in the cases of 9(c) of CNSA, it is duty of the prosecution to establish each and every step from the stage of recovery, making of sample parcels, safe custody of sample parcels and safe transmission of the sample parcels to the concerned laboratory. This chain has to be established by the prosecution and if any link is missing in such like offences the benefit must have been extended to the accused. Reliance in this behalf can be made upon the cases of 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), Ikramullah and others v. The State (2015 SCMR 1002) and Amjad Ali v. The State (2012 SCMR 577) wherein it was held that in a case containing the above mentioned defects on the part of the prosecution it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond any reasonable doubt. So the prosecution has failed to prove the case against the petitioner and his conviction is not sustainable in view of the above mentioned defects."

7. Keeping in view all the above-mentioned facts, we are of the view that safe custody of the parcels of sample and case property and safe transmission of the sample parcels, from the place of recovery to the Forensic Science Laboratory, have not been proved in this case by the prosecution beyond the shadow of doubt. The said facts have created serious doubts in the prosecution case, therefore, the appellants are entitled to the acquittal on the said grounds. Reference in this respect may be also made to the cases reported as 'Asif Ali and another v. The State' (reported as 2024 SCMR 1408); 'Lal Jan v. The State' (2023 SCMR 1009), 'Javed Iqbal v. The State' (2023 SCMR 139), 'Said Wazir v. The State' (2023 SCMR 1144), 'Abdul Haq v. The State' (2025 SCMR 751),Nawaz v. State (2020 SCMR 687), State v. Imam Bakhsh (2018 SCMR 2039), Zahir Shah v. State (2019 SCMR 2004), Amjad Ali v. State (2012 SCMR 577), Mst. Sakina Ramzan v. The State (2021 SCMR 451), Said Wazir v. The State.

8. For what has been discussed above, we have come to this irresistible conclusion that the prosecution has failed to prove its case against the appellants beyond the shadow of doubt. It is by now well settled that if there is a single circumstance, which creates doubt in the prosecution case then the same is sufficient to acquit the accused, whereas the instant case is replete with number of circumstances, which have created serious doubts in the prosecution story. Reference in this context may be made to the judgments reported as "Tariq Pervez v. The State"(1995 SCMR 1345) and "Muhammad Akram v. The State"(2009 SCMR 230). Consequently, we allow these appeals (Crl. Appeals Nos. 58 and 59 of 2023) and set aside the judgments dated 24.02.2020 and 21.11.2017, of the learned High Court and the learned Trial Court respectively. The appellants are acquitted of the charge. They are directed to be released from the jail forthwith, if not required to be detained in any other case. JK/F-13/SC Appeals allowed.