2024 S C M R 1408
[Supreme Court of Pakistan]
Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and
Naeem Akhtar Afghan, JJ
ASIF ALI and another---Petitioner
Versus
The STATE through Prosecutor General Punjab---Respondent
Criminal Petition No. 1602 of 2023, decided on 31st May, 2024.
(On appeal against the judgment dated 29.11.2023 of the Lahore High
Court, Rawalpindi Bench passed in Crl.A. No. 159 of 2023).
(a) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9---Possession of narcotic---Safe custody and transmission of
samples---Significance---In the cases under Control of Narcotic
Substances Act, 1997, it is the 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, the benefit of the same
has to be extended to the accused---Prosecution is under a bounded
responsibility to drive home the charge against an accused by proving
each limb of its case that essentially includes production of the witness
tasked with the responsibility of transmitting the samples to the office
of Chemical Examiner and failure to do the same can cast away the
entire prosecution case.
Javed Iqbal v. The State 2023 SCMR 139; Mst. Sakina Ramzan v. The
State 2021 SCMR 451; Qaiser Khan v. The State 2021 SCMR 363; Abdul
Ghafoor v. The State 2022 SCMR 819; Muhammad Shoaib v. The State
2022 SCMR 1006; Khair ul Bashar v. The State 2019 SCMR 930; The State
v. Imran Bakhsh 2018 SCMR 2039; Taimoor Khan v. The State 2016
SCMR 621; Ikram Ullah v. The State 2015 SCMR 1002 and Amjad Ali v.
The State 2012 SCMR 577 ref.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules
2001, R. 4(2)---Police Rules, 1934, R. 22.70---Possession and
transportation of charas---Reappraisal of evidence---Safe custody and
transmission of the samples to the Forensic Laboratory not established--
-In the instant case, statements of a Head Constable and Investigating
Officer revealed that the seven sample parcels of the charas allegedly
recovered on 27.05.2021 were handed over to a Sub-Inspector for
transmission to office of the lab on 31.05.2021 i.e. much beyond the
seventy two hours of the seizure in violation of Rule 4(2) of the Control
of Narcotic Substances (Government Analysts) Rules 2001 ( Rules of
2001 ) for which no plausible explanation had been offered by the
prosecution---According to statement of the Head Constable, he handed
over the seven sample parcels to the Sub-Inspector for onward
transmission to office of the Lab on 31.05.2021---In order to prove safe
transmission of the sample parcels to office of the Lab, the prosecution
had not produced said Sub-Inspector before the Trial Court for
recording his statement and in this regard no explanation had been
offered by the prosecution---During his cross-examination, Head
Constable was confronted by the defence counsel with Form 22.70 of
Register No.XIX maintained as per Rule 22.70 of the Police Rules, 1934
wherein admittedly no date, month and year had been mentioned in
the relevant column No.3 pertaining to the case property/sample
parcels of the instant case and in this regard as well no explanation
had been offered by the Head Constable or by the Investigating Officer--
-Prosecution had failed to prove the charge against the petitioners
beyond reasonable doubt---Conviction and sentence awarded to the
petitioners by the Trial Court and maintained by the Appellate Court
was result of misreading and mis-appreciation of the evidence
available on record---Petition was converted into an appeal and was
allowed, the judgments of the Trial Court and the High Court
respectively were set aside, and the appellants were acquitted of the
charge.
Muhammad Nawaz Khan, Advocate Supreme Court for Petitioners.
Irfan Zia, A.P.G., Punjab for the State.
Date of hearing: 22nd May 2024.
JUDGMENT
NAEEM AKHTAR AFGHAN, J.---Both the petitioners are facing
conviction and sentence of ten years rigorous imprisonment and fine
of Rs.50,000/- each or in default thereof to suffer simple imprisonment
for eight months each with benefit of section 382-B, Cr.P.C. under
section 9(c) read with section 15 of the Control of Narcotic Substances
Act, 1997 ('CNSA 1997') vide judgment dated 15.02.2023 passed by
learned Additional Sessions Judge/Special Court of CNSA 1997 Jhelum
('the Trial Court') in FIR No.148/2021 registered with P.S. City, District
Jhelum on 27.05.2021 for recovery of four packets of charas weighing
1007 grams, 1009 grams, 1012 grams and 1014 grams wrapped in a
cloth around the body of petitioner Asif Ali and for recovery of three
packets of charas weighing 1012 grams, 1012 grams and 1022 grams
wrapped in a cloth around the body of petitioner Muhammad Irshad
while travelling in Car No. OK-3131.
2. Appeal filed by both the petitioners has been dismissed by the
Lahore High Court, Rawalpindi Bench ('the Appellate Court') vide
judgment dated 29.11.2023 against which both the petitioners have
filed the instant criminal petition for leave to appeal.
3. After hearing learned counsel for the petitioners and learned
Additional Prosecutor General, Punjab we have perused the available
record.
According to the version of prosecution, the complainant/PW-1
(Ahsan Shehzad S.I. of Cantt. Police Post Jhelum) received information
that two narcotic dealers are transporting huge quantity of narcotic in
a car towards Mandi Bahauddin due to which checking of vehicles was
started at Bandi Tool Plaza; at about 10:00 am a Datsun Car bearing
registration No. OK-3131 coming from Rawalpindi side was signaled to
stop but the car accelerated; the same was chased; after colliding with
footpath, it stopped; the person sitting on the driving seat (petitioner
Asif Ali) was overpowered and searched resulting into recovery of
four packets of charas wrapped in a cloth around his body while the
search of second person (petitioner Muhammad Irshad), sitting on the
front seat of the car, resulted into recovery of three packets of charas
wrapped in a cloth around his body.
According to prosecution, seven sample parcels, each weighing 51
grams, were separated for analysis and same were handed over to
Ahsan Shehzad, S.I. on 31.05.2021 for its onward transmission to the
Punjab Forensic Science Agency, Lahore ('the Lab') for analysis.
4. In the cases under CNSA 1997 it is the 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, the benefit of
the same has to be extended to the accused. Reference in this regard is
made to the cases of 'Javed Iqbal v. The State'1, 'Mst. Sakina Ramzan v.
The State'2 and 'Qaiser Khan v. The State'3.
5. In the cases under CNSA 1997, the prosecution is under a bounded
responsibility to drive home the charge against an accused by proving
each limb of its case that essentially includes production of the witness
tasked with the responsibility of transmitting the samples to the office
of Chemical Examiner and the failure is devastatingly appalling with
unredeemable consequences that cast away the entire case. Reference
in this regard is made to the cases of 'Abdul Ghafoor v. The State'4,
'Muhammad Shoaib v. The State'5, 'Khair ul Bashar v. The State'6, The
State v. Imran Bakhsh'7, 'Taimoor Khan v. The State'8, 'Ikram Ullah v.
The State'9 and Amjad Ali v. The State'10.
6. Under rule 4(2) of the Control of Narcotic Substances
(Government Analysts) Rules 2001 ('Rules of 2001'), the sample for
analysis has to be dispatched to the testing laboratory at the earliest
but not later than seventy two hours of the seizure.
7. Rule 22.70 of the Police Rules, 1934 ('the Police Rules') mandates
that Register No.XIX shall be maintained in Form 22.70 of the Police
Rules in the police station wherein, with the exception of articles
already included in Register No.XVI, every article placed in the store
room (Malkhana) shall be entered and the removal of any such article
shall also be noted in the appropriate column.
8. In the instant case, statements of PW-3 (Khurram Shehzad H.C.)
and PW-4 (Tasawar Hussain S.I./Investigating Officer) reveal that the
seven sample parcels of the charas allegedly recovered on 27.05.2021
were handed over to Ahsan Shehzad S.I. for transmission to office of
the lab on 31.05.2021 i.e. much beyond seventy two hours of the
seizure/in violation of rule 4(2) of the Rules of 2001 for which no
plausible explanation has been offered by the prosecution.
9. According to statement of PW-3, he handed over the seven sample
parcels to Ahsan Shehzad S.I. for onward transmission to office of the
Lab on 31.05.2021. In order to prove safe transmission of the sample
parcels to office of the Lab, the prosecution has not produced Ahsan
Shehzad S.I. before the Trial Court for recording his statement and in
this regard no explanation has been offered by the prosecution.
10. During his cross-examination, PW-3 was confronted by the
learned defence counsel with Form 22.70 of Register No.XIX (Ex.DB)
maintained as per rule 22.70 of the Police Rules, wherein admittedly
no date, month and year has been mentioned in the relevant column
No.3 pertaining to the case property/sample parcels of the instant case
and in this regard as well no explanation has been offered by PW-3 or
by PW-4.
11. All the above infirmities have created reasonable doubt in the
case of prosecution but according to settled principles of law, benefit
of same has not been extended in favour of the petitioners by the Trial
Court as well as by the Appellate court.
12. In view of all the above infirmities in the case of the prosecution,
we have no hesitation to conclude that the prosecution has failed to
prove the charge against the petitioners beyond reasonable doubt.
It is further concluded that the conviction and sentence awarded to
the petitioners by the Trial Court and maintained by the Appellate
Court is result of misreading and mis-appreciation of the evidence
available on record and same is violative of the settled principles of
law as well as the relevant rules.
13. The petition was converted into appeal and same was allowed by
us vide short order dated 22.05.2024 which reads as follows:
"For reasons to be recorded later, this petition is converted into an
appeal and is allowed. The judgments dated 15.02.2023 and
29.11.2023 of the Trial Court and the High Court respectively are
set aside. The appellants are acquitted of the charge and they be
set at liberty in this case if not required in any other case."
The above are the reasons of our short order dated 22.05.2024.
MWA/A-17/SC Appeal allowed.
1 2023 SCMR 139
2 2021 SCMR 451
3 2021 SCMR 363
4 2022 SCMR 819
5 2022 SCMR 1006
6 2019 SCMR 930
7 2018 SCMR 2039
8 2016 SCMR 621
9 2015 SCMR 1002
10 2012 SCMR 577
;
