2026 P Cr (PLP)

Iqbal Hameedur Rahman, C.J.

By virtue of this judgment Criminal Appeal No. 01/K of 2025 and Criminal Appeal No. 02/K of 2025 are being decided as the appellants Ayaz Ali, Pardeep, Imran, Shah Zaman and Muhammad Mithal were tried in case FIR No. 32 of 2023 registered at Police Station Bhan Saeed Abad, District Jamshoro, in which charge was framed under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979 (Hereinafter called the Hadd Order) and after conclusion of trial, all the appellants in both the appeals were convicted by the learned Judicial Magistrate, Sehwan, through the judgment dated 23rd of August, 2025, under Articles 3 and 4 of the Hadd Order, who awarded all the appellants sentence of three years rigorous imprisonment as well as requiring them to pay fine of Rs. 20,000/- (twenty thousand) and in default of payment of fine, the appellants had to further undergo simple imprisonment for two months. Benefit of Section 382-B of the Code of Criminal Procedure, 1898 (Act V of 1898) (Hereinafter called the Act V of 1898) had been extended in favour of all the appellants.

2. The appellant Ayaz Ali, being dissatisfied with the conviction and sentence awarded to him has preferred Criminal Appeal No. 01/K of 2025 while the appellants, Pardeep, Imran, Shah Zaman and Muhammad Mithal have preferred Criminal Appeal No. 02/K of 2025 claiming acquittal while setting aside the judgment impugned.

3. Brief Facts in nutshell are that on 12.05.2023 at about 20:00 hours, police party headed by Sub Inspector Muhammad Ishaq Mangnejo (PW.1) (complainant) along with his subordinate staff during patrolling on receipt of spy information raided the shop and caught hold the appellants Pardeep, Imran, Shah zaman and Muhammad Mithal at the spot while Appellant Ayaz Ali made his escape good. The appellants who were apprehended at the spot were found in possession of wine cartons of different quality and quantity along with currency notes of different denominations from their personal search.

4. Investigations ensued as a consequence of registration of crime report No. 32 of 2023. Appellant Ayaz Ali later on joined the investigation after getting interim bail from the court of learned Additional Sessions Judge, Sehwan. Thereafter, on the completion of investigation; police submitted report under section 173 of the Act V of 1898 and sent the appellants for trial.

5. Since the appellants did not plead guilty to the charge, therefore, prosecution produced 4 witnesses i.e. Sub Inspector Muhammad Ishaq Mangnejo (PW.1), who is eye-witness of the occurrence as well as the complainant of the case and also the Investigating Officer, Head Constable Ghulam Raza (PW.2) who is also eye-witness of incident as well as witness to the memo of recoveries, Head Constable Naimatullah (PW.3), who was Malkhana Incharge, to whom sample parcels etc. were deposited by the Complainant/I.O. and Head Constable Khaliq Dino (PW.4), who brought report from the office of Chemical Examiner, Karachi.

6. The appellants in their statement recorded under section 342 of the Act V of 1898 denied the whole incriminating evidence put to them and while pleading false implication claimed acquittal. The appellant Ayaz stated that his brother namely Muzaffar Khokhar is a journalist and President of Union of Journalist of Jamshoro who usually write against the police. Similarly, appellant Pardeep claimed to be journalist who used to write against government's official and police, therefore, he was falsely implicated in this case. Similarly, appellant Imran claimed to be reporter of Roz News Pvt Ltd. who had also been reporting against Government Departments including Police department, therefore, he had been falsely implicated in this case. Appellant Pardeep produced Authorization Letter dated 27.02.2025 of Kashish Television Network Pvt. Ltd. (Ex.9-A) and appellant Imran produced Press Media Pass issued by SSP Jamshoro for Mela from 17 February 2025 to 19 February, 2025 at Ex. 10/A. Appellant Shah Zaman claimed that he was Peon in the State Life at the time of alleged incident and was arrested from Street of Abdul Nabi Hospital, Bhan Saeedabad on 13.05.2023 by the police who took out cash of Rs.300/- from his pocket and implicated him in this case. He again said that he was taken by police on 12.05.2023. While appellant Muhammad Mithal stated that he had enmity with Zulfiqar Ali Bhand on whose instance Dadu Police arrested him and handed over to police of Bhan Saeedabad, who implicated him in this false case.

7. That on conclusion of trial, the appellants were convicted and sentenced as stated above.

8. Earlier, the appeals against the conviction and sentence awarded to the appellants were wrongly filed before the court of learned Additional Sessions Judge, Sehwan who vide order dated 28.08.2025 returned appeals to the appellants/convicts for want of jurisdiction as the sentence awarded to the appellants exceeded two years which under Article 27 of the Hadd Order is appealable before Federal Shariat Court.

9. Mr. Qadir Bakhsh Chahal, learned counsel for the appellant Ayaz Ali referring to the cross-examination of PW.1 contended that PW.1 admitted that there was no mention of label of "Silver Top" in the FIR as well as in the memo of arrest and recovery but later on the bottles with the label of "Silver Top" were produced in the court. Making reference to the positive report of chemical examiner it was submitted that ASI Muhammad Sajjan who deposited sample in the office of chemical examiner was not produced at the trial, which is fatal to the case of prosecution as safe transmission of the sample taken from the recovered liquor to the office of Chemical Examiner becomes doubtful. Continuing his arguments learned counsel contended that the place of occurrence was a public place in-spite of the same, no independent person was associated from the locality to act as witness of the incident and recovery from the place of occurrence. The learned counsel further argued that PW.2 admitted in his cross-examination that three different brands of beer tins i.e. Murree Classic Lager, Murree Brewery Strong and Hungchi Beer were produced in the court but only one can of Muree Classic Lager was sent for chemical analysis while the rest were not sent for chemical examination. Referring to the para 24 of the judgment impugned it was submitted that year 2024 was written on some of the bottles of wine, while the incidents had taken place in the year 2023. Furthermore, as has been admitted by the PW.1 in his cross-examination when confronted with one bottle labeled as Murree's Vat No.1 old blend whisky reflected manufacturing date as 26.12.2024 and another bottle whose manufacturing date was 23.12.2024 making the recoveries highly doubtful. Further argued that PW.4 Khaliq Dino during his cross admitted that the report of chemical examiner available at Exh:3/O reflected words "REGISTER A/D-Confidential" which is contradicting his examination-in-chief wherein he stated that he went to Karachi to collect report of chemical examiner.

10. Mr. Zafar Ali Laghari, learned counsel for the appellants adopting the arguments advanced by Mr. Qadir Baksh Chahal, Advocate added that PW.3 in his statement stated that date of dispatch of sample to the office of chemical examiner, Karachi is written as 14.05.2023 in Entry No.22 of Exh:5/A is a typographical mistake but actual date of submission of sample to chemical examiner is 15.05.2023 as deposed in the statement of PW.1 and in Entry No.16 Exh:3/1, which is an improvement on the part of PW.1 in his statement. Continuing the arguments he submitted that PW.1 in his statement deposed that on receipt of spy information they proceeded to the pointed place at 20:00 hours and saw five person who were sitting in the shop meanwhile they alighted from the police mobile and went to the place of incident and in his cross he stated that there was only one gate through which person can enter or exit the shop while PW.2 in his cross-examination stated that they stopped their police mobile in front of the shop then how it was possible for the appellant Ayaz Ali to make his escape good when police mobile was in front of shop of appellant Ayaz Ali. Summing up the arguments it was submitted that the appellants should not have been convicted under both the provision of Hadd Order i.e. Articles 3 and 4 of the Hadd Order and keeping in view the discrepancies in the statement of witnesses and misreading and non-reading of evidence the judgment of the learned trial Magistrate is liable to be set at naught.

11. Controverting the arguments, Learned Additional Prosecutor General, Sindh while endorsing the judgment of the learned trial Court that there are no major contradictions in the statements of the witnesses. Making reference to sending of sample to the office of Chemical Examiner at Karachi, it was submitted that on 14.5.2023 being holiday the parcel could not be deposited in the office of Chemical Examiner. He also contended that the appellants have not produced any proof in respect of writing against police while recording their statements under section 342 of the Act V of 1898. Similarly, appellant Pardeep claimed to be journalist while appellant Imran claimed to be reporter of Rose News Pvt. Ltd. and writing against government officials and police but they did not produce any such writing against government officials or police, the authorization letter dated 27th February, 2025 (Exh:9/A) and press media pass issued by SSP Jamshoro for Mela from 17th February 2025 to 19th February 2025 at Exh:10/A are issued after the date of incident. While the appellant Shah Zaman did not produce any proof to be a peon in a State Life on day of incident in court to prove his stance. However, the claim of appellant Mithal that he was arrested by Zulfiqar Band of Dadu of PS Bhan Saeedabad he did not produce in proof any application of that time regarding his illegal arrest. Continuing the arguments, the learned law officer argued that huge quantity of liquor cannot be foisted by the police. Summing up the arguments he submitted that the appellants have rightly been convicted and sentenced by the learned trial Magistrate.

12. Conscious consideration has been given to the arguments advanced while scanning evidence adduced by the prosecution.

13. That on perusal of the impugned judgment along with the examination of the evidence recorded before the learned trial Magistrate, it reveals that learned trial Magistrate has failed to take into consideration certain material available on record. The complainant received spy information that appellants were selling wine in a shop where they reached at 08:00 p.m. and apprehended four persons from the shop while one managed his escape good. The Investigating Officer has stated that on arriving at the place of occurrence, the people of the locality had dispersed from the place of occurrence, hence, due to non-availability of private persons, police officials were made witnesses of the arrest and recovery. But in his cross-examination, the I.O. has asserted that many people were available at the spot but they were reluctant to be a witness as Mashir to the recovery proceedings. In these circumstances, when complainant/I.O. had prior spy information of the offence, he should have taken due diligence and care before raiding the place, should have arranged private persons as witnesses. Under Article 27 of the Hadd Order, provisions of Section 103 of the Act V of 1898 shall apply in cases registered under Hadd Order, hence, it was mandatory that at least two persons of the locality had to be associated before conducting the search and recovery proceedings at the spot especially when I.O. had prior spy information of the occurrence. Omission to associate independent witnesses for the search and recovery on the part of the I.O. makes the whole recovery proceedings doubtful. In numerous judgments, it has been held that in the circumstances where the complainant and I.O. is same person, the mandatory requirements of section 103 of the Act V of 1898 must be duly adhered to. In this regard, reliance is placed on the case of Tulsi v. The State (2020 MLD 89 (FSC) "Asgar Ali and 2 others v. The State" (2021 MLD 888 (FSC) and "Kashif Ali v. The State" (2023 YLR 1153 (FSC). Relevant portion of the case law are reproduced here as under:- "Tulsi v. The State" (2020 MLD 89 (FSC)) "

11. Non-association of the inhabitants of the vicinity particularly when there was advance information and complainant having multiple hats of seizing officer and Investigating Officer as in this case, have always been disapproved by the apex court, which has further weakened the case of the prosecution." "Asgar Ali and 2 others v. The State" (2021 MLD 888 (FSC). "Fourthly, despite prior information, the prosecution did not attempt to associate any private person to attest recovery proceedings. PW.1 states "SIP asked 08/10 persons to become witnesses of incident". PW-3 states "it is correct to suggest that I have not associated any private witness on the spot". PW-1 states that the police unloaded and loaded the contraband items whereas PW-3 states vehicle was unloaded by labourers arranged by me. If this was the position, why the said labourers were not associated with recovery proceedings as witness. The non-compliance of mandatory provision of Section 103, Cr.P.C. was illegally ignored by Trial Court." "Kashif Ali v. The State" (2023 YLR 1153 (FSC)) "

9. Moreover, ASI Muhammad Siddique has admitted in his cross-examination that the place of incident is very busy place of Dadu City, that is also even evident from the photograph Ex.5/C, sketch Ex.5/D and mashirnama of place of Vardhat Ex.4/A, which reveal that several shops are located on the western side of the place of incident, but no independent person from the locality was associated with the alleged recovery proceedings and/or during the course of inspection of the place of incident by I.O. PW3 ASI Pyar Ali nor any effort was shown to have been made for doing so as was admitted by PW.1 complainant ASI Muhammad Siddique by stating that "I did not try to associate any citizen to act as mashir at the place of arrest and recovery" so also by PW.3 I.O ASI Pyar Ali, stating that "it is correct to suggest that I have not associated any private mashir during the investigation", that is violative of mandatory provisions of Section 103 of The Code, for the official making searches, recovery and arrest, are required to associate private persons, more particularly, in case in which the availability of private persons cannot be disputed, for the transparency in the recovery proceedings and to eliminate the chance of fabrication;

14. The Complainant (PW.1) narrated the detail of occurrence. He in his examination-in-chief produced many bottles labeled as "Silver Top" but during his cross-examination he stated that "It is correct to suggest that in FIR as well as in memo of arrest and recovery not a single bottle is mentioned with the label of "Silver Top". Voluntarily says the whole name of the bottle is Silver Top London Drygin and due to night hours I have only mentioned London Drygin." It is to be noted that the complainant (P.W.1) in the FIR narrated that he saw five persons in the light of bulbs clearly demonstrating element of improvement yet in his cross he admitted that "It is correct to suggest that I have not send (sic) a single bottle labeled as Silver Top for chemical analysis from recovered property." Omission to mention complete name of wine in the FIR. as well as memo of recovery and not sending to Office of Chemical Examiner for chemical analysis is significant, putting a question mark to the evidence of the complainant, which creates doubt, benefit of which always goes in favour of the accused.

15. Further it has also been observed by this Court that perusal of the evidence of PW.1 reveals that he in his cross-examination has stated that he produced in court one bottle labeled as Murree's Vat No.1 old Blend whisky whose manufacturing date was 26.12.2024 and another bottle labeled as Murree's Saphire Drygin whisky whose manufacturing date was 23.12.2024. Though this fact was noted by the learned trial Magistrate at the time of cross-examination which was conducted on 04.01.2025 and during the period between 12.12.2023 when examination in chief was recorded and 04.01.2025 when cross-examination was conducted the property was kept at Malkhana of the police station in unsealed condition as such the samples sent to the chemical examiner do not connect the recoveries made during the raid which was conducted on 12.05.2023 but it was overlooked by the learned trial Magistrate merely on the reason of not putting suggestion to the prosecution witnesses that they tampered with the sample at the police station. The reason given by the learned trial Magistrate about not pointing out the description by defence counsel by putting suggestion to the prosecution witness cannot be endorsed as failure of the accused to prove his plea, may be false or vexatious, by itself would not be sufficient to grant premium to the prosecution. In light of the same, case property produced before the trial Magistrate becomes doubtful, benefit of which as per settled law goes to the accused. Reliance is placed on dictum laid down in "Mukhtar Ahmed v. The State" (PLD 2002 SC 792) and "Nadeem and others v. The State and others" (2014 PCr.LJ 374) (Federal Shariat Court). Relevant portion of the case law are reproduced as under.- "Mukhtar Ahmed v. The State" (PLD 2002 SC 792) "In the light of what has been stated hereinabove it appears to be a well-entrenched legal proposition that if the defence version is not plausible or convincing it cannot be made a sole base for conviction and prosecution has to prove its case in all circumstances. In this regard we are also fortified by the dictum laid down in case titled Shamir v. State (PLD 1958 SC 242) wherein it was held that "despite the fact that no evidence had been led by the accused to prove the plea of self-defence, yet, if the plea received support to the extent of being reasonably possible, from the circumstances proved by the prosecution evidence, the accused was entitled to acquittal." "Nadeem and others v. The state and others" (2014 PCr.LJ 374) "By now, it is well-settled that the prosecution is duty bound to prove its case on the strength of its own evidence and an accused is presumed to be innocent till he is proved guilty. Accused is considered a favourite child of law and he may take any plea, however absurd or false it may be, but he can not be punished for his flaws or falsity in his plea or his failure to prove the plea taken by him. Moreover, in case of any doubt, not being artificial, the accused shall be entitled to its benefit as a matter of right."

16. It has also been observed that the PW.1/complainant had stated that the case property was sealed in white sacks but during cross-examination he admitted that "It is correct to suggest that today in court hall white sacks are not available in which case property was sealed." This fact was also admitted by P.W.2 during his cross- examination stating that "We placed the bottles of whisky in cartons and placed cartons in white plastic bags/sacks." But he again stated that "It is correct to suggest that today in Court room not a single white bag/sack is available." In light of above circumstances, in which case property was sealed at the time of recovery and thereafter presented before the court without sacks/bags also create a legal infirmity in the evidence produced before the trial court, which cannot be ignored lightly, it is a dent in the case of prosecution.

17. Matter does not end here. The prosecution has failed to send samples separately from each bottle to the office of Chemical Examiner for chemical analysis of the recovered case property. PW.2 admitted in his cross-examination that from case property i.e. 40 Beer bottles of three different companies i.e. Murree's Classic Lager, Murree Brewery Strong and Hungchi Beer available in the Court only one can of Murree's Classic Lager was sent for chemical analysis while the rest were not sent for chemical examination. Omission is significant, goes to the root of the case, sufficient to demolish superstructure of case of prosecution. In this regard, reliance is placed on the case of "Tariq Pervez v. The State" reported in 1995 SCMR 1345 and "Muhammad Hashim v. The State" (PLD 2004 SC 856). Relevant portion of the case law are reproduced as under.- "Tariq Pervez v. The State" reported in 1995 SCMR 1345 "The aforesaid narration of the evidence on record will show that two separate parcels containing one gram heroin sold by the appellant to Muhammad Shafi and one gram heroin separated from heroin weighing 1099 grams were prepared by the police and only one parcel was sent to the Chemical Examiner for examination and report. As such it cannot be said with Judicial certainty that the parcel containing sample heroin was sent to the Chemical Examiner. The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right." "Muhammad Hashim v. The State" (PLD 2004 SC 856). "It emerges there from that: vide recovery memo. Exh.P/1-A, 4 grams of Charas was taken out from total 288 rods. Nothing is available on record to show whether sample for examination by Chemical Examiner was taken our from each rod to ascertain that 288 rods were of Charas or some other commodity having resemblance with the colour of Charas like Oil Cake (Khal) etc. It is to be noted that under Act, 1997, stringent sentences have been provided if offences charged against the accused within any competent of section 9 is proved. Therefore, for such reason, Act 1997 has to be construed strictly and the relevant provisions of law dealing with the procedure as well as furnishing the proof like the report of expert, etc. are to be followed strictly in the interest of justice, otherwise in such-like cases it would be impossible to hold that total commodity recovered from his possession was Charas. However, in given facts and circumstances of the case, it would be presumed that sample was taken out from only one rod. As far as remaining rods are concerned, in absence of any sample taken out from them, if would not be possible to hold that they were the rods of Charas or otherwise. Therefore, taking into consideration this aspect to the case, we are of the opinion that for such reason, the case of the prosecution has become doubtful, as such, sentence awarded to appellant by the trial Court and maintained by the High Court is not sustainable."

18. Learned Deputy Prosecutor General, while making reference to the statement of accused for not producing any proof of writing against government departments or police by the appellants Ayaz, Pardeep and Imran while recording their statements under section 342 of the Act V of 1898 ignored the fact that PW.1, the complainant/I.O in his cross-examination has admitted that appellant Pardeep and Imran used to write against different departments. Hence, in view of admission of fact of writing against government departments, the stance taken by the appellant Pardeep and Imran of enmity or animosity by the police is also proved. As such the arguments of the learned DPG cannot be taken into consideration and does not hold much force.

19. Learned DPG while arguing the case has stressed that huge quantity of liquor cannot be foisted by the police upon the appellants as such the appellants have rightly been convicted and sentenced. In this regard, it was incumbent upon the prosecution to produce foolproof evidence against the appellants by taking due diligence and care while sending huge quantity of recovery to the Chemical Examiner for proper chemical analysis. Be that as it may, in the circumstance, the prosecution has to stand on its own legs to prove the case against the appellants and stance of the learned law officer is immaterial as conviction cannot be based on high probabilities. Suspicion, however, strong cannot take the place of proof. Reliance is placed upon "Yasin alias Ghulam Mustafa v. The State" (2008 SCMR 336). Relevant portion of the case law is as under: "It is well-settled that suspicion howsoever strong it may be, by itself cannot take place of proof. This view receives support from the following reported judgments: - (1) Bhugdomal Gangaram and others v. State of Gujarat 1984 PSC 640 (sic), (ii) State of U.P. v. Krishna Gopal and another 1988 MLD 1501 (sic) and (iii) Vijant Kumar and others v. State through Chief Ehtesab Commission,(sic) Islamabad and others PLD 2003 SC 56.It is also an established principle of the administration of criminal justice that conviction cannot be based on any other type of evidence howsoever, convincing it may be, unless direct or substantive evidence is available. Even, guilt of an accused cannot be based merely on high probabilities that may be inferred from evidence in a particular case. In this view we are fortified by the following reported judgments: (i) Muhammad Luqman v. The State PLD 1970 SC 10, (ii) Muhammad Noor v. Member-I, Board of Revenue, Balochistan and others 1991 SCMR 463 and (iii) Qalb-e-Abbas alias Nehola v. The State 1997 SCMR 290."

20. There is also a discrepancy with regard to the sealed parcels being delivered to the office of chemical examiner, whether on 14.05.2023 or 15.05.2023. PW.3 while deposing in his cross-examination stated that it was a typographical mistake as 14.05.223 by showing to have been delivered on 14.05.2023 instead of 15.05.2023 in Entry No.22. In order to bank upon report of Chemical Examiner, prosecution was also required to establish safe custody of sample parcels. Naimatullah WHC (P.W.3) serving as Malkhana Incharge deposed that Muhammad Ishaque Mangnejo SIP (complainant as well as I.O.) (P.W.1) handed over him 16 sealed parcels of white colour and 11 notes of Rs.500/- and 5 currency notes of Rs.100/- which he deposited in Malkhana and kept such entry in Register No.19 vide Entry No.22 (Ex.5/A) and on 15.05.2023 Muhammad Ishaque Mangnejo took one parcel from him for chemical examination and handed over to ASI Muhammad Sajjan Jatoi who vide roznamcha Entry No.08 left police station for chemical laboratory but while deposing in cross-examination stated that there was typographical mistake of date as 14.05.2023 instead of 15.05.2023 in entry No.22. Interestingly, PW.1 did not say anything about typographical mistake in the said roznamcha entry in his statement. Even the report of the chemical examiner proves that due care and diligence have not been observed while sending the samples to the office of chemical examiner and receiving back its report.

21. It is further observed with reference to the evidence of HC Khaliq Dino who while appearing as P.W.4 stated that he was asked by SIP Muhammad Ishaque Mangnejo to get chemical report and property from Karachi Laboratory wherefrom he received one parcel and original chemical report. He took the same and arrived at police station but during his cross he also stated that chemical report was not sealed in envelope but when confronted he admitted that the report of chemical examiner available at Exh:3/O reflected words "REGISTER A/D- Confidential" on the top of its page negating his examination-in-chief wherein he stated that he went to Karachi to /collect report of chemical examiner which is sufficient to disbelieve his evidence.

22. It has also been observed with regard to the sample parcels being delivered at the office of chemical examiner by ASI Muhammad Sajjan but the said ASI Muhammad Sajjan, has not been produced in evidence by the prosecution before closing the prosecution evidence although he was also an eye-witness of arrest and recovery. He was handed over the case property, for onward transmission to the Office of Chemical Examiner on 15.05.2023 creating further dents to the case of prosecution, which could not complete chain of evidence of safe custody and safe transmission of case property for chemical analysis rendering the report of Chemical Examiner doubtful. Any break in the chain of safe custody and safe delivery of the samples to the Office of Chemical Examiner also creates a serious dent to the case of prosecution, benefit of which has to be granted to the accused/appellants as a matter of right. In this regard reliance can be placed on "Ikramullah and others v. The State" (2015 SCMR 1002), "Muhammad Shoaib and another v. The State" (2022 SCMR 1006) "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) and "Zahir Shah alias Shat v. The State through Advocate-General, Khyber Pakhtunkhwa" (2019 SCMR 2004). Ratio expounded in the above referred case law is reproduced here in below: - Ikramullah and others v. The State" (2015 SCMR 1002) "In the case in hand not only the report submitted by the Chemical Examiner was legally laconic but safe custody of the recovered substance as well as safe transmission of the separated samples to the office of the Chemical Examiner had also not been established by the prosecution. It is not disputed that the investigating officer appearing before the learned trial court had failed to even to mention the name of the police official who had taken the samples to the office of the Chemical Examiner and admittedly no such police official had been produced before the learned trial Court to depose about safe custody of the samples entrusted to him for being deposited in the office of the Chemical Examiner. In this view of the matter the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of the Chemical Examiner without the same being tampered with or replaced while in transit." (Emphasis added) "Muhammad Shoaib and another v. The State" (2022 SCMR 1006) "In that eventuality, prosecution failed to establish safe custody and safe transmission of the sample parcels to the concerned quarter and the prosecution could not give any plausible explanation for not producing said important witnesses. The said defect in the prosecution case goes into the root of the case creating serious doubt regarding the narcotics and its recovery." "Mst. Razia Sultana v. The State and another" (2019 SCMR 1300) "

2. At the very outset, we have noticed that the sample of the narcotic drugs was dispatched to the Government Analyst for chemical examination on 27.2.2006 through one Imtiaz Hussain, an officer of ANF but the said officer was not produced to prove safe transmission of the drug from the Police to the chemical examiner. The chain of custody stands compromised as a result it would be unsafe to rely on the report of the chemical examiner. This Court has held time and again that in case the chain of custody is broken, the Report of the chemical examiner loses reliability making it unsafe to support conviction." "The State through Regional Director ANF v. Imam Bakhsh and others" (2018 SCMR 2039)" "The chain of custody begins with the recovery of the seized drug by the Police and includes the separation of the representative sample(s) of the seized drug and their dispatch to the Narcotics Testing Laboratory. This chain of custody, is pivotal, as the entire construct of the Act and the Rules rests on the Report of the Government Analyst, which in turn rests on the process of sampling and its safe and secure custody and transmission to the laboratory. The prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample(s) and will impair and vitiate the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction." (Emphasis added) "Zahir Shah alias Shat v. The State through Advocate-General, Khyber Pakhtunkhwa" (2019 SCMR 2004) "This court has repeatedly held that sale custody and safe transmission of the drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory must be satisfactorily established. This chain of custody is fundamental as the report of the Government Analyst is the main evidence for the purpose of conviction. The prosecution must establish that chain of custody was unbroken, unsuspicious, safe and secure. Any break in the chain of custody ie., safe custody or safe transmission impairs and vitiates the condusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction." (Emphasis added)

23. Needless to say, the conviction cannot be recorded simultaneously under Articles 3 and 4 of the Hadd Order. Reliance is placed on the case of "Muhammad Ayub v. State" (1992 SCMR 108). Relevant portion of the case law is reproduced here in below:-

24. It is well settled that a single circumstance creating reasonable doubt would be sufficient to grant premium to the accused not as a matter of grace and concession but as a matter of right. Reliance is placed in case of "Tariq Pervaiz v. The State" reported as 1995 SCMR 1345, the Hon'ble Supreme Court has observed as follows: - "For giving him benefit of doubt, it is not necessary that there should many circumstances creating doubts. If there is single circumstance, which creates reasonable doubt in the prudent mind about the guilt of the accused, then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right". Similar view has also been taken in the case of "Muhammad Akram v. The State reported as 2009 SCMR

230. Relevant portion is as under: "

13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace."

25. In the light of above discussion, the prosecution has failed to prove its case against the appellants beyond the reasonable doubt, therefore in view of the safe administration of criminal justice, the judgment of conviction against the appellants cannot be sustained. Resultantly, Cr. Appeal No. 01/K of 2025 and Criminal Appeal No.02/K of 2025 are allowed. The impugned judgment of the learned Trial Magistrate is set-aside. The appellants are acquitted from the charge. They are present on bail. Their bail bonds stand cancelled and sureties discharged. MH/1/FSC Appeals allowed.