2025 PLP 751 (SCMR)

ISHTIAQ IBRAHIM, J.

The petitioner Abdul Haq was tried by the learned Additional Sessions Judge/Model Criminal Trial Court. Malakand at Batkhela, ("Trial Court") in case FIR No. 33 dated 27.05.2021 under section-9 (D) KP CNSA registered at Police Station Hassan Khan Shaheed Allah Dand, District Malakand, for smuggling / trafficking contraband in Motorcar bearing registration No.MV-793- Islamabad and vide impugned judgment of the learned trial Court dated 16.05.2022 ("impugned judgment") the petitioner was convicted and sentenced as under; The appellant was convicted under section-9 (d) KP CNSA, 2019 and sentenced to rigorous imprisonment for life with fine of Rupees Ten Hundred Thousand or in default thereof the appellant shall further undergo simple imprisonment for six months. Benefit of section-382-B Cr. P.C. was extended to the appellant.

2. Feeling aggrieved from the impugned judgment of the trial Court, the petitioner preferred Cr. Appeal No. 159-M of 2022 before the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat, after hearing arguments of the learned counsel for the parties, vide impugned judgment dated 31.05.2023 the appeal was dismissed, the conviction and sentence of the petitioner was maintained.

3. The petitioner being dissatisfied from the impugned judgment passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Swat, has filed Criminal Petition No.864 of 2023 for Leave to Appeal before this Court.

4. The brief facts of the prosecution case are that on 27.11.2021 Umar Wahid P.C. posted at Police Station Hassan Khan Shaheed, Allah Dand, received spy information regarding smuggling of huge quantity of Opium through Motorcar bearing registration No. MV-793-Islamabad from Chakdara Lower Dir towards down Districts; that on receiving the information, he along with police contingent under the supervision of A.C and S.M rushed to the spot i.e Swat Motorway and laid barricade near Toll Plaza; that in the meantime at 21:30 hours the motorcar in question came from Chakdara Lower Dir side, which was stopped for the purpose of checking; that its driver was deboarded and during search of the motorcar thirteen packets opium were recovered from the secret cavity made between the rear seat and the iron sheet towards the trunk; that upon weighment the total weight of the opium came out 16215 grams; that the complainant separated sample of ten grams from each packet of opium for chemical analysis, sealed into parcels Nos. 1 to 13 while the remaining quantity of opium were sealed in parcel No.14; that the complainant arrested the accused, took into possession the contraband opium along with motorcar through separate recovery memos; drafted murasila and sent the same through Roshan Ali constable-5159, the entire case property i.e contraband opium and motorcar in question along with accused under the supervision of Mad Muharrir Akbar Ali Shah No.5328, Mad-Muharrir Muhammad Bilal No.4885 to Police Station for registration of FIR against the accused.

5. On completion of investigation, challan under section-173 Cr.P.C. was submitted against the accused before the Court. Formal charge against the petitioner was framed, to which he did not plead guilty and claimed trial.

6. In order to bring home charge against the petitioner, the prosecution produced as many as seven (07) PWs. After closure of prosecution evidence, statement of accused was recorded under section-342 Cr.P.C., wherein he professed innocence and that he has falsely been involved by the prosecution in the present case. He did not opt to be examined on Oath within the meaning of Section-340(2) Cr.P.C. or to produce defence evidence. After hearing learned counsel for the parties, the learned trial Court vide judgment dated 16.05.2022 convicted the petitioner under Section-9(d) KPCNSA, 2019 and awarded him rigorous imprisonment for life and to pay fine of Rupees Ten Hundred Thousand or in default of payment of fine, the petitioner shall further undergo simple imprisonment for six months, which the petitioner assailed by filing Criminal Appeal before Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Swat, and hearing arguments of learned counsel for the parties, the appeal was also dismissed vide impugned judgment dated 31.05.2023, which the petitioner has challenged by filing the instant Petition before this Court.

7. Arguments heard and perused the record.

8. Perusal of record reveals that the complainant Umar Wahid (PW-4) in his initial report i.e murasila (EX PA/1) stated that he sent the murasila through Roshan Ali constable-5159 (PW-3) and the entire case property i.e sealed parcels containing samples of contraband opium and the remaining quantity of opium along with motorcar in question and accused under the supervision of Mad-Muharrirs Akbar Ali Shah No.5328 and Muhammad Bilal No.4885 to police station. Sanaullah Muharrir (PW-1) in his examination in chief stated that the murasila was handed over to him by Roshan Ali constable sent by Umar Wahid and also received the case property including motorcar under the supervision of Akbar Ali and Muhammad Bilal Mad-Muharrirs; that he incorporated the contents of murasila into FIR (EX PA) and regarding the case property he made entry in register No.19, the extract of register No.19 is (EX PW 1/2); that on the direction of I/O, he handed over the samples to the FDC for taking the same to the FSL and in this respect he made entry in register No.19. However, the extract of register No. 19 (EX PW 1/2) reveals that the sealed parcels Nos. 1 to 13 each containing ten grams sample of opium were handed over to the Investigating Officer on 27.05.2021 by the Muharrir of the Police Station, which by itself contradicts the version of (PW-1) regarding sending of samples to the FSL. Muhammad Ajmal DFC (PW-02) in his examination-in-chief stated that on 28.05.2021 Sanaullah Muharrir handed over to him parcels Nos. 1 to 13 along with an application for taking the same to the FSL, which he accordingly delivered in the FSL, However, Muhammad Tufail, the investigating officer (PW-06) contradicted the statements of PW-1 and PW-2 in his examination-in-chief stated that he sent the sealed parcels Nos. 1 to 13 each containing sample of 10 grams opium to the FSL, through Muhammad Ajmal DFC vide receipt rahdari (EX PW 2/2). Roshan Ali constable (PW-03) in his examination-in-chief stated that on 27.05.2021 the murasila was handed over to him for taking the same to the police station, which he took to the police station and delivered to the Muharrir, who incorporated the contents of murasila into FIR (EX PA), but, he did not utter a single word regarding taking of case property i.e sealed parcels containing opium and motorcar. Umar Wahid the seizing officer (PW-04) in his examination-in-chief reiterated the same story, which he has mentioned in the murasila (EX PA/1) but to the extent of receiving sealed parcels Nos. 1 to 13 each containing 10 grams sample of opium from Muharrir of the Police Station, he did not utter a single word and thereby belied the version of prosecution. Muhammad Bilal Mad-Muharrir (PW-05) in his examination-in-chief stated that on 27.05.2021 he along with other witnesses was present with the complainant at the time of Nakabandi, and the motorcar in question was intercepted by the complainant; that during search of the motorcar in question the complainant recovered thirteen packets opium from its secret cavity made between the rare seat and trunk of the car; that weighment the total weight of the contraband opium came out 16215 grams; that the complainant separated sample of ten grams from each packet of opium for chemical analysis, sealed in parcels Nos. 1 to 13 while the remaining quantity of opium was sealed in parcel No.14; that he is marginal witness to the recovery memos and his statement under Section-161 Cr.P.C. was recorded by the Investigating Officer. However, this PW did not utter a single word regarding shifting of case property i.e sealed parcels No.1 to 13 each containing sample of ten grams opium, parcel Nos. 14 containing the remaining quantity of opium, motorcar in question and the accused from spot to the police station. Moreover, Mad-Muharrir Akbar Ali Shah No. 5328 through whom the seizing officer has allegedly sent the sealed parcels Nos. 1 to 13 each containing sample of ten grams opium and the remaining quantity of opium along with motorcar in question and the accused to the police station, has been abandoned by the prosecution. 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. This Court held in Javed IqbaI v. The State (2023 SCMR 139), wherein it is held that: [4]. 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 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.

9. Keeping in view the above, this petition is converted into an appeal and the same is allowed, the conviction and sentence awarded to the appellant vide impugned judgments are set aside. The appellant is acquitted of the charge levelled against him. He is in custody be released forthwith, if not, required in any other case. MH/A-19/SC Appeal allowed.