2025 Y L R 26
2025 Y L R 26
[Peshawar (Bannu Bench)]
Before Kamran Hayat Miankhel, J
MUHAMMAD RAZIQ and another---Appellants
Versus
The STATE through A-G---Respondent
Criminal Appeal No. 73-B of 2021, decided on 4th June, 2024.
(a) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)---Possession of narcotic substances---Appreciation of evidence---Safe
custody of the recovered contraband not proved---Accused were charged for having
possession of 3360 grams charas---Complainant stated in his examination in chief
that he had shown the recovered contraband to the Investigation Officer on the
spot---Later on complainant handed over the case property and the accused to
Muharrir of the police station at about 07:30 pm, however the Investigation Officer
contrary to the statement of the complainant stated in his cross-examination that the
case property was handed over to the Muharrir of the police station by him---It was
an admitted fact that the prosecution had not produced register No. 19 of malkhana,
of Police Station concerned, to prove that the allegedly recovered contraband
charas was deposited in the Malkhana on the same day by the complainant---Even
complainant had not produced abstract of register No.19 whereupon he got his
signature for receiving the case property to substantiate his plea---Under said
circumstance it could safely be held that there was no iota of evidence to establish
that the alleged recovered contraband was under safe custody---Circumstances
established that the prosecution had not been able to prove their case beyond
reasonable doubts---Appeal against conviction was allowed, in circumstances.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Possession of narcotic
substances---Appreciation of evidence---Withholding material witnesses---Effect---
Accused were charged for having of possession 3360 grams charas---Record
reflected that important witnesses of the prosecution i.e.carrier of the sample of
contraband to the Forensic Science Laboratory and Moharrir of the police station
were not examined by the prosecution to prove that the case property was in safe
custody till its transmission to the Forensic Science Laboratory, hence, nonproduction of the said material witnesses casted serious doubt on the prosecution
case---Withholding of such important evidence in the peculiar circumstances of the
case led to draw an adverse inference against the prosecution keeping in view
Art.129(g) of Qanun-e-Shahadat Order, 1984---Prosecution had failed to explain
that why the best evidence available with the prosecution in shape of statements of
said witnesses had been withheld---Circumstances established that the prosecution
had not been able to prove its case beyond reasonable doubts---Appeal against
conviction was allowed, in circumstances.
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(c) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)---Possession of narcotic substances---Safe custody of the recovered
contraband---Prosecution, duty of---Scope---Prosecution is obliged to establish that
the chain of custody of the case property as well as the sample separated therefrom
remains unbroken, unsuspicious, indubitable, safe and secure---Any break in the
chain of custody or lapse in the control of possession of the sample, would cast
doubts on the safe custody and safe transmission of the sample and would impair
and vitiate the reliability of the Report of the Government Analyst.
Said Wazir and another v. The State and others 2023 SCMR 1144; 2021 SCMR
451; Imam Baksh's case 2018 SCMR 2039; Zubair Khan v. The State 2021 SCMR
492 and Mst Razia Sulana v. The State 2019 SCMR 1300 rel.
(d) Control of Narcotic Substances Act (XXV of 1997)---
----Ss. 9(c) & 36(2)---Control of Narcotic Substances (Government Analysts)
Rules, 2001, Rr. 5 & 6---Possession of narcotics---Appreciation of evidence---
Report of Government Analyst---Protocols used, non-indication of---Effect---
Prosecution case was that 3360 grams charas was recovered from the possession of
accused persons---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
sample taken from the recovered substance had safely been transmitted to the office
of laboratory without being tampered with or replaced while in transit---Moreover,
the Forensic Science Laboratory Report relied upon by the prosecution also did not
contain the full details of protocols of the test applied, which being unreliable could
not be made a basis to sustain conviction and sentence of the accused persons---
"Protocol" means an explicit, detailed plan of an experiment, procedure or test or a
precise step-by-step description of a test, including the listing of all necessary
reagents and all criteria and procedures for the evaluation of the test data---Rule 6
required that full protocols of the test applied be part of the Report of the
Government Analyst---Every test has its protocols, which are internationally
recognized and a test without the observance of its protocols has no sanctity---"Full
Protocols" include description of each and every step employed by the Government
Analyst through the course of conducting a test---Hence, the Report under R.6 must
specify every test applied for the determination of the seized substances with the
full protocols adopted to conduct such tests and non-compliance of R.6 could
frustrate the purpose and object of the Act, i.e., control of production, processing
and trafficking of narcotic drugs and psychotropic substances, as conviction could
not be sustained on a Report that was inconclusive or unreliable---Evidentiary
assumption attached to a Report of the Government Analyst under S.36(2) of the
Act underlines the statutory significance of the Report, therefore details of the test
and analysis in the shape of the protocols applied for the test become fundamental
and go to the root of the statutory scheme---Rule 6 is therefore, in the public
interest and safeguards the rights of the parties---Any Report (Form-Il) failing togive details of full protocols of the test applied would be inconclusive, unreliable,
suspicious and untrustworthy and would not meet the evidentiary assumption
attached to a Report of the Government Analyst under S.36(2)---Circumstances
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established that the prosecution had not been able to prove its case beyond
reasonable doubts---Appeal against conviction was allowed, in circumstances.
2019 SCMR 930 and Qaiser Javed Khan v. The State through Prosecutor General
Punjab, Lahore and another PLD 2020 SC 57 rel.
(e) Criminal trial---
----Benefit of doubt---Principle---For extending the benefit of doubt, it is not
necessary that there should be many circumstances creating doubts---Single
circumstance, creating reasonable doubt in the prudent mind about the guilt of
accused, makes him entitled to its benefit, not as a matter of grace or concession,
but as a matter of right.
2009 SCMR 230; 2011 SCMR 664; 2011 SCMR 646; PLD 1984 SC 433; 2012
MLD 1358; 2007 SCMR 1825; 2008 PCr.LJ 376; PLD 1994 Peshawar 114; PLD
2012 Peshawar 01; 1999 PCr.LJ 1087; 1997 SCMR 449; 2011 SCMR 820 and 2006
PCr.LJ 1002(sic) rel.
Khush Amir Khan Khattak for Appellants.
Muhammad Asghar Khan Ahmadzai, A.A.G. for the State.
Date of hearing: 4th June, 2024.
JUDGMENT
KAMRAN HAYAT MIANKHEL, J.---Muhammad Raziq son of Ashraf Khan
and Mst. Zarshad alias Yasmin wife of Wazir, appellants, were tried by the learned
Judge Special Court/Additional Sessions Judge, Banda Daud Shah, District Karak
for the offence under section 9(c) of the Control of Narcotic Substances Act, 1997
registered at Police Station Terri, District Karak and after conclusion of trial, the
learned trial Court while holding the appellants guilty of the offence, convicted
them under section 9(c) CNSA and sentenced to suffer 03 years rigorous
imprisonment and a fine of Rs.1,00,000/- each, or in default of payment of fine,
they shall further undergo simple imprisonment for six months. Benefit of section
382-B Cr.P.C was also given to the convicts/appellants vide judgment dated
26.3.2021.
- On 30.01.2018, at about 16:40 hours, Saif Ullah Khan, SHO of Police Station
Terri, along with other police officials, including lady constable Hazrat Zubaida,
acted upon special directives from Circle SDPO, made barricade at the spot. While
carrying out this duty, they intercepted a Suzuki vehicle bearing registration No. B7785/Kohat travelling from the Terrir side. Upon inspection, it was discovered that
a lady was seated in the front of the vehicle, with a minor girl on her lap.
Additionally, the lady had a black coloured purse lying on her thighs. A thorough
search, conducted by a lady constable, led to the recovery of two packets of charas
Garda wrapped in yellow plastic. These packets were weighed using a digital scale,
one packet weighing 1010 grams and the other 950 grams, totaling 1960 grams.
From this total, 5/5 grams of charas was separated from each packet for forensic
examination and sealed in parcels Nos. 1 and 2, while the remaining 1950 grams
was sealed in parcel No. 3. Further search of the vehicle revealed another packet of
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charas Garda, weighing 1400 grams, concealed underneath the driver's seat. Similar
to the previous recovery, 5 grams of charas was separated for forensic analysis and
sealed in parcel No. 4, while the remaining charas was sealed in parcel No. 5. The
female accused identified herself as Mst. Zarshad alias Yasmina, and the minor girl
accompanying her was identified as Sherin Bibi, aged about 2 to 3 years. The male
accused, occupying the driver's seat, disclosed his name as Muhammad Raziq.
Subsequently, the SHO drafted 'Murasila' and forwarded it to the Police Station for
the registration of a case against the appellants. The accused were promptly
arrested at the scene, leading to the registration of the case under FIR No. 54, dated
30.01.2018, under Section 9(c) of the CNSA, 2019, at Police Station Terri, District
Karak. - After completion of investigation, complete challan was submitted against the
accused/appellants. They were summoned and on appearance after compliance of
provisions under section 265-K Cr.P.C, formal charge was framed against the
appellants, to which they pleaded not guilty and claimed trial. The prosecution, in
order to prove its case against the appellants, produced lady constable Hazrat
Zubaida as PW-1, who is marginal witness to the recovery memo. Ex.PC, Sher
Zaman ASI as PW-2, who incorporated the contents of murasila into FIR. PW-3
Shad Akbar OII has conducted investigation in the case, PW-4 is Complainant Siaf
Ullah SHO, who narrated the same facts as mentioned in the FIR and also stated
that at 18:10 hours the investigation officer arrived to the spot who prepared the
site plan on his pointation. The I.O took the snap shot of both the accused along
with the contraband and Suzuki van. He recorded his statement under section 161,
Cr.P.C. He had shown the recovered contraband to the I.O on the spot. Later on he
handed over the case property and the accused to Muharrir of the police station at
about 19:30 hours. PW-5 is the statement of Nadeem Ullah No.667, who took the
murasila from the spot to the Police Station Terrir and handed over it to Sher
Zaman Khan ASI. - After close of prosecution case, statement of appellants were recorded under
section 342, Cr.P.C, wherein, they pleaded innocence and false implication,
however, neither opted to appear as their own witness on oath or to produce
evidence in their defence. The learned trial Court, after hearing the arguments of
the learned counsel for the appellants and learned APP appearing on behalf of the
State convicted and sentenced the appellants as noted above. Hence, this appeal. - The prosecution in order to prove its case produced Sher Zaman ASI, who
incorporated the contents of murasila into FIR. During cross-examinations he
admitted that complainant Saif Ullah was on leave on that very day. The
complainant stated in his examination in chief that he had shown the recovered
contraband to the I.O on the spot. Later on he handed over the case property and the
accused to Muharrir of the police station at about 19:30 hours, however the
investigation officer/PW-3 contrary to the statement of the complainant stated in his
cross-examination that the case property mentioned above was handed over to the
Muharrir of the police station by him. It is also admitted fact that the prosecution
has not produced register No. 19 of malkhana, Police Station Terri District Karak,
to prove that the allegedly recovered contraband charas was deposited in the
Malkhan of the police station on the same day by the complainant. Even Saif Ullah
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Khan, SHO/complainant (PW-4) had not produced abstract of register No.19
whereupon (PW-4) got his signature for receiving of case property to substantiate
his plea. Under the said circumstance it can safely be held that there is no iota of
evidence to establish that the alleged recovered contraband was under the safe
custody. Record further reflects that important witnesses of the prosecution i.e.,
carrier of the sample of contraband to the FSL and Moharrir of the police station
were not examined by the prosecution to prove that the case property was in safe
custody till its transmission to the FSL, hence, none production of the said material
witnesses cast serious doubt on the prosecution case. The withholding of this
important evidence in the peculiar circumstances of this case led us to draw an
adverse inference against the prosecution keeping in view Article 129(g) of Qanune-Shahadat Order, 1984. The prosecution has failed to explain that why the best
evidence available with the prosecution in shape of statements of above said
witnesses has been withheld. The said fact when confronted with learned AAG, he
failed to furnish any explanation regarding such lapses of the prosecution. After
perusal of evidence on record, I find that the prosecution has not established safe
custody of contraband to the police station as well as safe transmission of sample
parcel drawn from recovered substance to the office of chemical analysis. It is by
now trite law that the prosecution is obliged to establish that the chain of custody of
the case property as well as the sample separated therefrom remained unbroken,
unsuspicious, indubitable, safe and secure and 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 and will impair and vitiate the
reliability of the Report of the Government Analyst. In this case, the elements of
doubt surrounding the prosecution case, as discussed above, has led this court to
hold that the prosecution has failed to prove the case beyond reasonable doubt to
sustain the conviction. The prosecution has not been able to establish that after the
alleged recovery the substance so recovered was either kept in safe custody or that
the sample taken from the recovered substance had safely been transmitted to the
office of laboratory without being tampered with or replaced while in transit.
Reliance can safely be placed on the case titled "Said Wazir and another v. The
State and others" reported in (2023 SCMR 1144), wherein the apex Court has held
that:-
"Heard and perused the record. It has been observed by us that recovery was
effected on 09.06.2016 whereas sample parcels were received in the office
of chemical examiner on 13.06.2016 without any plausible explanation as to
where remain these sample parcels from 09.06.2016 to 13.06.2016. The safe
custody and safe transmission of the sealed sample parcels has also not been
established by the prosecution as Moharrar, who kept the sample parcel in
the Malkhana and the concerned Constable (FC No. 1374), who delivered
the sample parcel to the office of Forensic Science Laboratory, were not
produced by the prosecution. Even the prosecution failed to prove the
ownership of the vehicle. This court in 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
4/12/25, 4:18 PM 2025 Y L R 26 , Amjad Ali v. The State (2012 SCMR 577) has held that in a case containing
the above mentioned defect 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."
Similarly, in Criminal Appeal No. 184 to 2020 decided on 06th January 2021
reported as 2021 SCMR 451, which held as under;
"The chain of custody or safe custody and safe transmission of narcotic drug
begins with seizure of the narcotic drug by the law enforcement officer,
followed by reparation of representative samples of the seized narcotic drug,
storage of the representative samples and the narcotics drug with the law
enforcement agency and then dispatch of the representative samples of the
narcotics drugs to the office chemical examination for examination and
testing. This chain of custody must be safe and secure. This is because, the
report of the chemical examination enjoys critical importance under CNSA
and the chain of custody ensure that correct representative samples reach the
office of the chemical examiner. Any break or gap in the chain of custody
i.e. in the safe custody or safe transmission of the narcotic drug or its
representative samples makes the report of the chemical examiner unsafe
and unreliable for justifying conviction of the accused. The prosecution,
therefore, has to establish that the chain of custody has been unbroken and is
safe, secure and indisputable on the report of chemical examiner". - Further reliance is placed on the case of Imam Baksh's case (2018 SCMR
2039), Zubair Khan v. The State (2021 SCMR 492), Mst. Razia Sulana v. The State
(2019 SCMR 1300). - Moreover, the FSL report, marked as Ex.PW3/8, relied upon by the
prosecution also does not contain the full details of protocols of the test applied for,
which being unreliable cannot be made a basis to sustain conviction and sentence
of the appellants. Now it has been declared by the august apex court that "Protocol"
means an explicit, detailed plan of an experiment, procedure or test or a precise
step-by-step description of a test, including the listing of all necessary reagents and
all criteria and procedures for the evaluation of the test data. Rule 6 requires that
full protocols of the test applied be part of the Report of the Government Analyst.
Every test has its protocols, which are internationally recognized and a test without
the observance of its protocols has no sanctity. "Full Protocols" include description
of each and every step employed by the Government Analyst through the course of
conducting a test. Hence, the Report under Rule 6 must specify every test applied
for the determination of the seized substances with the full protocols adopted to
conduct such tests and non-compliance of Rule 6 can frustrate the purpose and
object of the Act, i.e., control of production, processing and trafficking of narcotic
drugs and psychotropic substances, as conviction cannot be sustained on a Report
that is inconclusive or unreliable. The evidentiary assumption attached to a Report
of the Government Analyst under section 36(2) of the Act underlines the statutory
significance of the Report, therefore details of the test and analysis in the shape of
the protocols applied for the test become fundamental and go to the root of the
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statutory scheme. Rule 6 is therefore, in the public interest and safeguards the
rights of the parties. Any Report (Form-II) failing to-give details of full protocols
of the test applied will be inconclusive, unreliable, suspicious and untrustworthy
and will not meet the evidentiary assumption attached to a Report of the
Government Analyst under section 36(2). Reliance is placed on case titled Khair-ulBashar v. The State, reported in (2019 SCMR 930) and Qaiser Javed Khan v. The
State through Prosecutor General Punjab, Lahore and another, reported in (PLD
2020 SC 57) wherein it has been held that:-
"6. The Report of the Government Analyst in this case specifies only the tests
applied and not the protocols thereof. The term "protocol" has not been
defined in the Rules. Its dictionary meaning is: "A plan of scientific
experiment or other procedure.
4
" It is also referred to as "the precise method
for carrying out or reproducing a given experiments
5
." These definitions are
in line with the elaboration of the term "protocol" given in Imam Bakhsh
wherein the Court stated the expression "protocol" to mean an explicit plan
of an experiment, procedure or test. It is clarified that "protocol" is,
therefore, a recognized standard method or plan for carrying out the test
applied to ascertain the nature of the substance under examination. No test
can take place without a protocol. The Report of the Government Analyst
must show that the test applied was in accordance with a recognized
standard protocol. Any test conducted without a protocol loses its reliability
and evidentiary value. Therefore, to serve the purposes of the Act and the
Rules, the Report of the Government Analyst must contain (i) the tests
applied (ii) the protocols applied to carry out these tests (iii) the result of the
test(s)." - The above discussion has led this Court to believe that the learned trial court
has erred in appreciating the case evidence in its true perspective. It has been held,
time and again by the superior courts, that a reasonable doubt found in the
prosecution case is sufficient to acquit an accused. For extending the benefit of
doubt, it is not necessary that there should be many circumstances creating doubts.
Single circumstance, creating reasonable doubt in the prudent mind about the guilt
of accused, makes him entitled to its benefit, not as a matter of grace or concession,
but as a matter of right. Reliance could be placed on 2009 SCMR 230, 2011 SCMR
664, 2011 SCMR 646, PLD 1984 SC 433, 2012 MLD 1358, 2007 SCMR 1825,
2008 PCr.LJ 376, PLD 1994 Peshawar 114, PLD 2012 Peshawar 01, 1999 PCr.LJ
1087, 1997 SCMR 449, 2011 SCMR 820 and 2006 PCr.LJ SC 1002(sic). The
conclusions drawn by the learned trial Court are not borne out of the case evidence,
therefore, the impugned judgment is not sustainable. - For what has been discussed above, I hold that prosecution have not been able
to prove their case beyond reasonable doubts, therefore, the impugned judgment
warrants interference. As such this appeal is allowed and the appellants are
acquitted of the charges levelled against them by extending them benefit of doubt.
They are in jail. Hence, they be released forthwith, if not required in any other case.
These are the detailed reasons of my short order of even date. Appeal allowed.