IN THE SUPREME COURT OF PAKISTAN
( Appellate Jurisdiction )
PRESENT:
Justice Jamal Khan Mandokhail
Justice Syed Hasan Azhar Rizvi
Justice Naeem Akhtar Afghan
Criminal Petition No. 1602 of 2023
(On appeal against the judgment dated 29.11.2023 of the Lahore
High Court, Rawalpindi Bench passed in Crl.A. No. 159/2023)
Asif Ali & another …Petitioners
Versus
The state through Prosecutor General Punjab …Respondents
For the petitioners: Mr. Muhammad Nawaz Khan, ASC
For the state: Mr. Irfan Zia, APG., Punjab
Date of Hearing: 22.05.2024
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) r/w 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 PS 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
(Crl. P. No. 1602 of 2023) 2
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,
1 2023 SCMR 139
2 2021 SCMR 451
3 2021 SCMR 363
4 2022 SCMR 819
5 2022 SCMR 1006
6 2019 SCMR 930
(Crl. P. No. 1602 of 2023) 3
‘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
7 2018 SCMR 2039
8 2016 SCMR 621
9 2015 SCMR 1002
10 2012 SCMR 577
(Crl. P. No. 1602 of 2023) 4
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.
Judge
Judge
Judge
Islamabad
31.05.2024
Atif/Zohaib Afzal
APPROVED FOR REPORTING
