2026 PLP 584 (SCMR)

MUHAMMAD HASHIM KHAN KAKAR, J.

Through this appeal, with the leave of the Court, the appellants, Raham Gul and Hazrat Wali, have challenged the judgment dated 11.03.2020, passed by the Peshawar High Court, whereby the appeal against their conviction and sentences was dismissed.

2. Briefly stating the prosecution case is that on 29.05.2014 officials of the Anti-Narcotics Force, acting on prior information, established a checkpoint near Thakot Bridge and intercepted a motorcar bearing registration No. PS-0345 travelling from Kohistan towards Punjab; four persons were found seated therein, namely, Gul Khan (driver, since deceased), Rahman Gul (absconding) and the present appellants Raham Gul and Hazrat Wali occupying the rear seat; upon inquiry, all four allegedly admitted the presence of narcotics in plastic sacks beneath their feet, leading to the recovery of four sacks containing 42 packets of charas, collectively weighing 42 kilograms, out of which samples were drawn, sealed, and sent for analysis, resulting in registration of FIR No. 10/2014 at Police Station ANF, Haripur.

3. Learned counsel for the appellants contended that there was an unexplained delay of four hours in lodging the FIR; no recovery or seizure proceedings were conducted on the spot, the complainant himself acted as the Investigating Officer and is not supposed to act in a biased manner towards any one party as an I.O. but his role as complainant comprises this; the safe custody of the seized narcotics was not proved through production of the relevant malkhana registers; the joint pointation of the contraband by all the accused was inadmissible; and, as the appellants were mere passengers in the vehicle, conscious possession was not established.

4. Conversely, the learned Special Prosector submitted that a huge quantity of charas was recovered from beneath the feet of the appellants and other co-accused; the samples were promptly dispatched and duly proved through reliable witnesses; no animosity was alleged or established against the ANF officials; and, in terms of section 29 of the Control of Narcotic Substance Act, 1997, once recovery was established, the presumption operated against the accused who failed to discharge their burden, therefore, the Trial Court had rightly convicted and sentenced them.

5. We have heard the learned counsel and have perused the available record. It has been reiterated time and again by this Court that legal infirmities or evidentiary gaps in cases which hold severe punishments are held to be a stricter benchmark of proof. In this case the most important evidentiary chain is broken owing to lack of safe custody and transmission and no record known of when the entry was made in Form-19. The proceedings were not conducted on the spot but shifted to the police station, thereby creating ample room for doubt. It was held in the case of Shahzada v. State (2018 SCMR 841) as under: "3 The recovery witness had also deposed before the trial court on the same lines vis-a-vis the first recovery and he had gone on to add that all the memoranda of recovery were prepared in this case at the last place of recovery. This was surely a serious lapse on the part of the investigating agency and the recovery officer and because of such lapse there was no guarantee that before preparation of the memorandum of recovery vis-a-vis the first recovery the substance recovered had not been tampered or interpolated with or that the weight of the substance recovered was the same as alleged... the first recovery had not been prepared at the spot but at some subsequent stage and place. In view of such infirmities in the case of the prosecution against the appellant the benefit of doubt has to be extended to him."

6. We find that the prosecution failed to prove exclusive and conscious possession of the narcotics by the appellants beyond reasonable doubt. The alleged recovery was attributed collectively to all four accused through a joint pointation memo, without clear demarcation of individual responsibility. It does not appeal to a prudent mind that individuals transporting contraband would keep it near their feet so openly in a car. The safe custody of the samples was not established as the relevant malkhana registers were withheld, and the complainant himself acted as Investigating Officer, thereby compromising the neutrality of investigation. In these circumstances, the statutory presumption under section 29 of the CNSA could not be invoked, as the prosecution's own case fell short of the standard of proof required in criminal law. Consequently, the appellants are entitled to the benefit of doubt, which must always go to the accused as of right rather than concession.

7. In light of the above discussion, whilst setting aside the impugned judgment, this appeal is allowed and the conviction and sentences recorded against the appellants are set aside. The appellants are acquitted of the charge. They shall be released forthwith if not required in any other case. JK/R-12/SC Appeal allowed.