Advocate Sunny Sachdev

02/02/2025

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22/07/2023

Meet Kainat, who is an 11-day-old baby girl, currently admitted in the NICU at Ziauddin Hospital, Kemari
Kainat was born with a breathing disorder known as Respiratory Distress Syndrome, due to which she has been on the ventilator for the past six days.
Her condition has improved greatly. However, the costs of medical care in the NICU have been overwhelming for her family. Kainat’s father is an unemployed daily wage worker who supports his family of 5 with an average income of Rs. 20,000 per month.
We reach out to you to extend a helping hand to Kainat and her family during this challenging time. Your act of kindness will be an investment in the life of a precious child, giving her the chance to grow stronger and healthier with every passing day.

*This patient is zakat eligible*

For donations, please contact our representative:
Anesh Kumar 0315 8178332

05/10/2022

سپریم کورٹ فیصلہ...
*جس کے مطابق آگر ملزم کا ایک سال یا دو سال سزا کے مطابق جیل میں مکمل ھو جائے اور مقدمہ ختم نہ ہوا ہو تو ملزم ضمانت کا حقدار قرار دیا جائے گا.*
*2022 SCMR 1*
Scope and extent of 3rd and 4th Proviso to Section 497(1), Cr.P.C regarding *Grant of Bail* on the Delay in the Conclusion of the trial.
*2022 SCMR - 1*

This statutory right to be released on bail is, however, subject to two exceptions: one is embodied in the third proviso itself and the second is provided in the fourth proviso. As per these exceptions, the right to be released on bail on the ground of delay in conclusion of the trial is not available to an accused if:
(i) the delay in conclusion of the trial is occasioned by an act or omission of the accused or by any other person acting on his behalf, or
(ii) the accused is a convicted offender for an offence punishable with death or imprisonment for life or is in the opinion of the court a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.

(i) FIRST EXCEPTION.
........................
Delay in conclusion of the trial if occasioned by an act or omission of the accused or by any other person acting on his behalf.........................
The act or omission on the part of the accused to delay the timely conclusion of the trial must be the result of a visible concerted effort orchestrated by the accused. Merely some adjournments sought by the counsel of the accused cannot be counted as an act or omission on behalf of the accused to delay the conclusion of the trial, unless the adjournments are sought without any sufficient cause on crucial hearings, i.e., the hearings fixed for examination or cross-examination of the prosecution witnesses, or the adjournments are repetitive, reflecting a design or pattern to consciously delay the conclusion of the trial. Thus, mere mathematical counting of all the dates of adjournments sought for on behalf of the accused is not sufficient to deprive the accused of his right to bail under the third proviso. The statutory right to be released on bail flows from the constitutional right to liberty and fair trial under Articles 9 and 10A of the Constitution. Hence, the provisions of the third and fourth provisos to section 497(1) Cr.P.C must be examined through the constitutional lens and fashioned in a manner that is progressive and expansive of the rights of an accused, who is still under trial and has the presumption of innocence in his favour. To convince the court for denying bail to the accused, the prosecution must show, on the basis of the record, that there is a concerted effort on the part of the accused or his counsel to delay the conclusion of the trial by seeking adjournments without sufficient cause on crucial hearings and/or by making frivolous miscellaneous applications.

(ii) SECOND EXCEPTION.
..........................
The accused, a hardened, desperate or dangerous criminal, in the opinion of the Court.......................................

The second exception to the right of the accused to be released on bail on the ground of delay in conclusion of the trial is provided in the fourth proviso. According to which the provisions of the third proviso do not apply to the accused who is:

(i) a convicted offender for an offence punishable with death or imprisonment for life; or
(ii )a hardened, desperate or dangerous criminal, in the opinion of the Court; or
(iii)an accused of an act of terrorism punishable with death or imprisonment for life.

Conditions (i) and (iii) are self-explanatory and must be borne out from the record. Under condition (i), the accused must have been earlier convicted by a court of law for an offence punishable with death or imprisonment for life. Under condition (iii), the accused must be accused of an act of terrorism punishable with death or imprisonment for life. It is condition (ii) which requires the Court to apply its judicious mind to the facts and circumstances of the case and make an opinion as to whether or not the accused is a hardened, desperate or dangerous criminal. The words hardened, desperate or dangerous have been couched in between conditions (i) and (iii) and therefore signify the same sense of gravity and seriousness as to the nature of the offence and character of the accused.

The principle that the meaning of a word is recognized by its associates is traditionally expressed in the Latin maxim noscitur a sociis. A word or phrase in an enactment must always be construed in the light of the surrounding text, and their colour and meaning must be derived from their context.

Further, the words hardened, desperate or dangerous are to be understood collectively. The ejusdem generis principle is a principle of constriction whereby wide words associated in the text with more limited words are taken to be restricted by implication to matters of the same limited character.4 For the said principle to apply, there must be sufficient indication of the category or word that can be properly described as the class or genus, which is to control the general words. The genus must be narrower than the general words it is to regulate5. Applying this principle to the phrase a hardened, desperate or dangerous criminal, it is the word dangerous which not only meets the requirements of conditions (i) and (iii) discussed above, it is also precise and narrow in order to regulate the meaning of the other two words. “Dangerous” means harmful, perilous, hazardous or unsafe – someone who can cause physical harm or injury or death.6 “Hardened” is someone who is pitiless, hardhearted, callous or unfeeling and set in his bad ways and no longer likely to change,7 having a tendency of repeating the offence and is, thus, dangerous to the society. “Desperate” is someone who is reckless, violent and ready to risk or do anything;8 such person is, therefore, also dangerous to society. All the three words paint a picture of a person, who is likely to seriously injure and hurt others without caring for the consequences of his violent act. Therefore, for this exception to apply, there has to be material to show that the accused is such a person who will pose a serious threat to the society if set free on bail. In the absence of any such material, bail cannot be Denied to an accused on the Statutory Ground of Delay in Conclusion of the Trial.

05/10/2022

*IDENTIFICATION PARADE*
====!!!=!!!!!!=============
*شناخت پریڈ کے قوائد جاننے کے لئے ایک بار ضرور پڑھ لیں.*
*PLJ 2019 SC (Cr.c) 153*

----The necessary guidelines for Identification Parade...

(a) An identification parade, to inspire confidence, must be held at earliest possible opportunity after occurrence;

(b) A test identification, where possibility of witness having seen accused persons after their arrest cannot be ruled out, is worth nothing at all--It is, therefore, imperative to eliminate all such possibilities.

(c) identification parades should never be held at police stations;

(d) the Magistrate, supervising identification proceedings, must verify period, if any, for which accused persons have remained in police custody after their arrest and before test identification and must incorporate this fact in his report about proceedings;

(e) Ordinarily ratio between accused persons and dummies should be 1 to 9 or 10--This ratio must be followed unless there are some special justifiable circumstances warranting a deviation from it;

(f) If there are more accused persons than one, separate identification parades should ordinarily be held in respect of each accused person;

(g) A witness has participated in identification proceedings, he is stationed at a place from where he cannot observe proceedings and that after his participation he is lodged at a place from where it is not possible for him to communicate with those who have yet to take their turn;

(h) The Magistrate conducting proceedings must take an intelligent interest in proceedings;

(i) The Magistrate is obliged to prepare a list of all persons (dummies) who form part of line-up at parade alongwith their parentage, occupation and addresses;

(j) The Magistrate must faithfully record all objections and statements, if any, made either by accused persons or by identifying witnesses before, during or after proceedings;

(k) Where a witness correctly identifies an accused person,Magistrate must ask witness about connection in which witness has identified that person;

(l) and where a witness identifies a person wrongly, Magistrate must so record in his report and should also state number of persons wrongly picked by witness.
[12/1, 23:00] +92 313 3116400: 2020 SCMR 715
S. 497(2)---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Bail, grant of---Further inquiry---Implication through supplementary statement---Petitioners were not named in the crime report as being alongside the five main accused who gunned down the deceased---All the witnesses were unanimous on the number of accused as five---Such omission by the witnesses in not naming the petitioners at the time of lodging the FIR by itself brought petitioners' case within the remit of S. 497(2), Cr.P.C .---Petitioners were *Granted bail.*

28/09/2022

2003 S C M R 658

*Supreme Court of Pakistan*
Present: Iftikhar Muhammad Chaudhry, Actg., C.J., Abdul Hameed Dogar and Sardar Muhammad Raza Khan, JJ

Maulana NAWAB UL HASSAN and 7 others Petitioners

Versus

THE STATE Respondent

Criminal Miscellaneous Petition No. 124 and Criminal Petition No. 46 of 2002, decided on 17th January, 2003.

(On Appeal from the judgment/order, dated 12 9 2001 passed by Lahore High Court, Rawalpindi Bench in Criminal, Appeal 'No. 385 T of 2000).

Penal Code (XLV of 1860)

*Ss.302(b)/149, 324/149 & 148* Criminal Procedure Code (V of 1898), *S.345* Constitution of Pakistan (1973), Art. 185(3) *Compromise* *Legal heirs and Wali of the deceased had voluntarily, without any duress or coercion, compounded the offence with the accused on their behalf as well as on behalf of the minors and had waived their right of Qisas and did not claim Diyat in the name of Almighty Allah Shares of the minors of the Diyat to which they were entitled had been invested in Government sponsored profit bearing scheme of DSCs with the National Saving Centre which was payable to them when they would become major Permission to compound the offence was accorded to the parties in order to maintain cordial relations between them Convictions and sentences of accused were set aside in circumstances and they were ACQUITTED accordingly.*

Dr. Babar Awan, Advocate Supreme Court for Petitioners.

Talib H. Rizvi, Senior Advocate Supreme Court and M.A. Zaidi, Advocate on Record for the Complainant.

Nemo for the State.

Date of hearing: 17th January, 2003.


ORDER

ABDUL HAMEED DOGAR, J. Petitioners named above by means of instant petition have assailed the judgment, dated 12th September, 2001 passed by Lahore High Court, Rawalpindi Bench.

2. Precisely stating the facts, necessary for disposal of instant case are that petitioners were tried along-with co accused for the charge under sections 302/324/148/149 and 109, P.P.C. by the Special Court constituted under Anti Terrorism Act, 1997, in pursuance of F.I.R. No.216, dated 19th December, 1998 registered at Police Station Jand, District Attock. Learned trial Court on conclusion of the trial found the petitioners guilty of the charge and vide judgment, dated 23rd September, 2000 sentenced them as under.

1. Under section 148, P. P. C.
Sentenced all the petitioners to 3 years' R.I. each.

2. Under section 7(a) of ATA, 1997
Sentenced petitioners Maulana Nawabul Hassan and Shohabuddin to death. Whereas rest of the petitioners were sentenced to life imprisonment.

3. Under section 302(b), P.P.C.
Sentenced petitioners Maulana Nawabul Hassan and Shohabuddin to death with direction to pay Rs.3 lacs as compensation to the legal heirs of deceased or in default to undergo S. I. for six months, each.

4. Under sections 302(b)/149, P.P.C.
Sentenced all the petitioners to life imprisonment on two counts, each.

5. Under section 324, P. P. C.
Sentenced petitioners Haji Fateh Muhammad, Muhammad Aslam, Muhammad Iqbal, Muhammad Riaz and Muhammad Khan, to 10 years' R.I. each with direction to pay fine Rs.5,000 each, which shall be paid to injured, or in default whereof to undergo 3 months' S.I., each.

6. Under sections 324/149, P.P.C.
Sentenced petitioners Maulana Nawabul Hassan, Shohabuddin, and Ghulam Raza, to 3 years' R.I. each on three counts. Whereas petitioners Haji Fateh Muhammad, Muhammad Aslam, Muhammad Iqbal, Muhammad Riaz and Muhammad Khan to 3 years' R.I. each on two counts.


Benefit of section 382 B, Cr.P.C. was also given to the petitioners and all the sentences of imprisonment were ordered to run concurrently.



3. Feeling aggrieved from the judgment of the trial Court, petitioners accused approached Lahore High Court, Rawalpindi Bench, Rawalpindi by filing Criminal Appeal No.385 T/2000. Learned High Court, after hearing both the sides, by means of impugned judgment dated 25th September, 2001, maintained the conviction but modified the sentence as under:

1. Under section 7(a) of ATA, 1997
All the petitioners were acquitted of the charge.

2. Under section 324, P.P.C.
Reduced the sentences of petitioners Haji Fateh Muhammad, Muhammad Aslam, Muhammad Iqbal, Muhammad Riaz and Muhammad Khan, from 10 years R.I. each to 7 years' R.I.


Rest of the conviction/sentence was however maintained.



As such instant petition for leave to appeal has been filed.

4. It is also important to note that prior to above said F.I. R. No.216 dated 19th December 1998, another F.I.R. No.174, dated 13th August, 1993 with the same Police Station was registered under section 302/324/337 A(ii)/148 and 149 P. P. C. on the complaint of present petitioners accused.

5. Dr. Babar Awan, ASC, appearing on behalf of petitioners filed a Criminal Miscellaneous Application No. 124 of 2002, wherein he stated that rival parties have compounded the offence and have forgiven each other in the name of Almighty Allah. He further stated that compromise has been effected, therefore, same may be accepted and petitioners be acquitted of the charge.

6. In order to verify the contents of the compromise, Sessions Judge, Attock was directed to conduct an inquiry. He submitted his first report dated 12th June. 2002 wherein he stated that legal heirs of deceased Ghulam Haider namely Mst. Ghulam Fatima (widow), Arif Hussain, Safdar Hussain (sons), Mst. Sughra Bibi, Mst. Asia Bibi (daughters), legal heirs of deceased Ahmed Khan namely Mst. Sarwar Jan (widow Ghulam Abbas, Mukhtiar Hussain, Muhammad Tufail, Zawar Hussain, Muhammad Akram (sons), Mst. Bagh Bhari, Mst. Kalsoom, Mst. Gulnaz (minor) (daughters), and legal heirs of deceased Mumtaz Hussain namely Muhammad Nawaz (father), Mst. Amir Bano (mother), Mst. Aasia Khatoon (widow) Muhammad Mukhtar, Israr Haider (minor) (sons), Mst. Sidra Batool, Mst. Sumera Batool (minor), Mst. Sabika Batool (minor), Mst. Farwa Batool (minor), Mst. Asma Batool (daughters) have forgiven the accused in the name of Almighty Allah and had expressed no objection on their acquittal. Learned Sessions Judge recorded statements of all the injured as well as the major legal heirs of the deceased in this respect. However, Mst. Sehra Batool daughter of Mumtaz Hussain deceased and Mst. Gohran Bano daughter of Ghulam Haider deceased have not been produced because they are married and residing abroad with their husbands and it was not possible for them to return Pakistan. However, they have filed their respective affidavits duly notarized in the country where they are residing. Since it was a partial compromise, as statements of above mentioned legal heirs were not recorded and 'Diyat' amount to the extent of minor legal heirs was also not deposited, as such vide order dated 15th October, 2002 of this Court, learned Sessions Judge was directed to consider the evidentiary value of affidavits, submitted by the above said legal heirs, in accordance with law. He was also directed to determine the amount of 'Diyat' of the minors and ensure its deposit in the name of minors in any Government sponsored profit bearing scheme. In consequence whereof learned Sessions Judge submitted another report dated 14th November, 2002, wherein he submitted that affidavit sworn by Mst. Sohera Batool daughter of deceased Mumtaz Hussain is duly certified by Counselor, Embassy of Pakistan, Tehran, whereas affidavit sworn by Mst. Gohran Bano daughter of deceased Ghulam Haider has been certified by Solicitor Iqbal Khan & Co. of Peterborough PE 1, 2nd Lincoln Road, and duly attested by Qazi Habib ur Rehman, Counselor, High Commission of Pakistan. London. He further submitted in his report that these documents have been proceeded in a proper manner and due course of law and are relied under section 95 of Evidence Act to be genuine. He also submitted in his report that respective shares of Diyat of the minors have been invested in Government sponsored profit bearing scheme of DSCs with National Saving Centre 1, Attock, with the direction That amount so deposited and profit accrued thereon be paid to the minors when they become major. Learned Sessions Judge found the compromise to be genuine, verified by all the legal heirs and injured and certified the same to be correct and valid, as all of the legal heirs and injured had forgiven the petitioners in name of Almighty Allah and have waived their right of Qisas.

7. Learned counsel appearing on behalf of parties stated that all the legal heirs as well as injured have forgiven the petitioners in the name of Almighty Allah and waived their right of Qisas and Diyat, therefore, petitioners may be acquitted of the charge.

8. In view of above discussion, we are satisfied with the report of learned Sessions Judge, Attock. We are also convinced that the legal heirs and Wali of deceased Ghulam Haider namely Mst. Ghulam Fatima (widow), Arif Hussain, Safdar Hussain (sons), Mst. Sughra Bibi, Mst. Asia Bibi and Mst. Gahran Bano (daughters), legal heirs of deceased Ahmed Khan namely Mst. Sarwar Jan (widow), Ghulam Abbas, Mukhtiar Hussain, Muhammad Tufail, Zawar Hussain, Muhammad Akram (sons), Mst. Bagh Bhari, Mst. Kalsoom (daughters), and legal heirs of deceased Mumtaz Hussain namely Muhammad Nawaz (father), Mst. Amir Bano (mother), Mst. Aasia Khatoon (widow), Muhammad Mukhtar (son), Mst. Sidra Batool, Mst. Asma Batool and Sehra Batool (daughters) have compounded the offence with the petitioners on their behalf as well as on behalf of minors namely Mst. Gulnaz (minor daughter) and Israr Haider (minor son), voluntarily, without any duress or coercion and have waived their right of Qisas and do not claim Diyat, in the name of Almighty Allah. So far as minors are concerned, they are entitled to the share of Diyat, as such their respective shares have been invested in Government sponsored profit bearing scheme of DSCs with National Saving Centre 1, Attock, which will be paid to them when they will become major.

9. It is pertinent to refer the provisions laid down under sections 309, 338 E and 338 H whereby in the case of Qatl i Amd an adult sane Wali may, at any time and without any compensation may waive the right of Qisas without accepting any compensation. Correspondingly, an amendment was made under section 345, Cr.P.C. whereby convicts who have been convicted for offences falling within Chapter XVI of P.P.C. affecting the human body were made compoundable and got the right to seek composition of for the offences. Vide its subsection (5), the legal heirs of the deceased and victims have been allowed to compound the offence with the permission of the Court where appeal is pending whereas vide its subsection (6), such composition of an offence shall have an affect of an acquittal of the accused with whom the offence has been compounded.

10. Therefore, in view of the report of Sessions Judge, Attock and request so made by learned counsel for the parties, legal heirs and injured/victims are allowed to compound the offence with the petitioners.

Accordingly, the permission to compound the offence in view of subsection (5) of section 345 of the Cr.P.C. is accorded to the parties in order to maintain cordial relations and burry their hatchets forever. Resultantly, Criminal Miscellaneous Application No.124 of 2002 is allowed.

Since leave to compound the office has been allowed, as such we set aside the conviction/sentence of the petitioners as well as impugned judgment dated 25th September, 2001. The petitioners namely Maulana Nawab ul Hassan son of Shah Nawaz, Haji Fateh Muhammad son of Muzaffar Khan, Shuhab ud Din son of Ghulam Raza, Ghulam Raza son of Ghulam Muhammad, Muhammad Aslam son of Ghul Khan, Muhammad Iqbal son of Ghulam Muhammad, Muhammad Riaz son of Muhammad Hussain, Muhammad Khan son of Afzal Khan are acquitted under subsection (6) of section 345, Cr.P.C. They are directed to be released forthwith, if not required in any other case.

Consequently, petition is converted into appeal and disposed of in above terms.

N.H.Q./N 1I14/S Accused acquitted.

26/09/2022

*2021 P Cr. LJ 443 [Sindh]*
Before Abdul Maalik Gaddi, J
NASIR MAHMOOD---Appellant
versus
The STATE---Respondent
Criminal Procedure Code (V of I1898)--
-S. 497-Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(C)--Possession of Narcotic's, *Grant of---Further inquiry-*
*Recovery of 2040 Grams Charas* --- *No Private witnesses had been associated* in Spite of *Prior spy information Received during Patrolling of Police Party* --- *Delay in sending the representative Part for Chemical examination required explanation, making a room for further Probe--*
All the prosecution witnesses were police officials hence, there was no question of tampering with the evidence---Continuous detention of more than two months as well as minimum punishment could be conside red
while dealing with bail plea of the accused---Fact whether recovery of certain amount from the accused was his persona amount or proceeds from selling charas also required evidence at the time of trial--Accused
had succeeded to bring his case within the purview of subsection (21
of S. 497, Cr.P.C.--- *Accused was admitted to BAIL, in Circumstances.*

25/09/2022

*PLJ 2022 Cr.C. 492 (DB)*
*Month Of MARCH*
[Lahore High Court, Multan Bench]
Present: Ali Zia Bajwa and Muhammad Shan Gul, JJ.
NADEEM AKHTAR--Appellant
versus
STATE and another--Respondents
Crl. A. No. 94 of 2017, heard on 13.10.2021
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
*S. 9(c)--Safe Custody-*
*ACQUITTAL* of-- *50 Small Packets Containing HE**IN Total 11 Grams Were Recovered from his Pocket.* Upon further Search of accused Chemical in Shape of Powder (of He**in origin) Total *3-KGs and 970 Grams* (P-5) was also recovered--Chain of safe custody has not been indubitably established by prosecution--Case carrying harder sentence must be Proved through Credible and persuasive evidence and transparent Process in Order to rule out possibility of any error--A single circumstance Creating reasonable doubt would be sufficient to smash Veracity of Prosecution Case--Conviction and sentence recorded by Trial Court are *Set Aside* and appellant is *ACQUITTED* of Charge.

*2021 SCMR 451;*
*2021 SCMR 363;*
*2019 SCMR 2004;*
*2021 SCMR 49;*
*PLD 2012 SC 380;*
*2009 SCMR 579;*
*2019 SCMR 1217 ref.*
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Safe custody--Vital steps, which are obligatory to ensure conviction of an accused through maintaining chain of safe custody, are formulated hereinafter to ensure effective investigation and successful prosecution in cases relating to narcotics:
• Any police officer setting up a picket, conducting a raid on spy information or otherwise or leaving police station for patrolling must enter in relevant police register his departure and arrival--Incorporation of arrival and departure by police officer in register No. 2 maintained under Police Rules, 1934 (hereinafter "Rules") is mandatory--The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at police station or elsewhere, with a statement of nature of their duty must be incorporated in aforesaid register--This entry shall be made immediately on arrival or prior to departure of officer concerned and shall be attested by him personally by signature or seal--Every police officer of or above rank of head constable, when returning from duty other than an investigation in which case diaries are submitted, shall have an entry made in daily diary by station clerk or his assistant showing places he has visited and duties performed by him during his absence from police station. Such entries provide corroboration qua alleged recovery of narcotics and arrest of accused and absence of such entries in relevant register creates doubt which goes in favour of accused.
• The parcels of sample and rest of bulk quantity (case property) shall be secured with sealing wax bearing seal impression of responsible/relevant police officer and shall be properly marked and labeled--Thereafter such parcels shall be sent to be kept in safe custody in store room as prescribed under Rules--Entries regarding depositing and removal of said case property subsequently shall be entered in police register No. 19 as provided in Rules.
• Statements of police officials, recovering narcotics from accused, making parcels of case property, transporting same from crime scene to store room to be kept in safe custody, receiving it and keeping it in store room, handing over sample parcels for further transmission to forensic lab and depositing those parcel in forensic lab, must be recorded under Section 161, Cr.P.C. and they must be produced as witnesses during trial to prove fact that narcotics substance as produced in forensic lab and before Court is same which was recovered from accused at crime scene.
• While transmitting sample parcels to forensic lab process provided in rules must be adhered to qua obtaining road certificate from register No. 21 of police station as mentioned in aforementioned rules--Copy of such road certificate should also be made part of case file.
• The police official who transmits complaint to police station for registration of FIR and official who jots down crime report under Section 154, Cr.P.C. in relevant register should be produced before Court as witnesses in order to eliminate all doubts qua culpability of a drug paddler.
• Prosecutor must ensure that no prosecution witness, who is necessary to prove chain of safe custody, is left out--Production of these witnesses before trial Court is eventually responsibility of prosecutor--It is mandatory upon him to perform his functions and exercise his powers fairly, honestly, with due diligence in public interest and to uphold justice.
• It has also been observed by this Court that sometimes crucial incriminatory piece of evidence is not put to an accused, which ultimately results in his acquittal--Trial Court should be very cautious and vigilant, while recording statement of accused as envisaged under Section 342, Cr.P.C. and should make sure that every piece of evidence available on record is put to accused.
• In addition to aforementioned steps, Punjab Forensic Science Agency issued directions in year 2012 to establish valid chain of custody of recovered narcotics, which unfortunately could not be followed strictly--These direction must be followed too and same are reproduced hereafter:-
For a valid chain of custody, all items of evidence must be labeled with following information:
• Name of victim or suspect.
• Case number.
• Type of specimen (i.e., Narcotic Plant material, narcotic medicines, Injections, ci******es, used syringes, Chars, capsules, o***m).
• Amount of sample.
• Time and date of collection.
• Names, stamp, designation of person collecting sample.
Finally, sample collected must be sealed with molten wax seal to document specimen integrity--A reference seal sample must be attached along with packed sample. [Pp. 502, 503& 504] F
M/s. Muhammad Luqman and Rao Matloob Ahmed, Advocates for Appellant.
Mr. Mohammad Ali Shohab, Deputy Prosecutor General for State.
Date of hearing: 13.10.2021.
Judgment
Ali Zia Bajwa, J.--This criminal appeal is preferred against the judgment dated 21.02.2017, passed by the learned Additional Sessions Judge/Judge Special Court-CNSA, Vehari; who, while adjudicating upon case FIR No. 560/2015, dated 19.12.2015, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered with Police Station Danewal Vehari, convicted and sentenced the appellant, as under:-
Ø Under Section 9(c) of the Control of Narcotic Substances Act, 1997, sentenced to undergo R.I. for eight years with fine of Rs. 70,000/- and in case of default in payment thereof, to further undergo S.I. for eight months.
Ø Benefit of Section 382-B, Cr.P.C. was extended in favour of the appellant.
2. Precisely, resume of prosecution case as structured in the FIR (Exh.PC) lodged on the basis of complaint (Exh.PB) of Rasheed Ahmed, Inspector (PW-2) is that on 19.12.2015, complainant along with Saeed Ahmed ASI, Maqbool Ahmed ASI, Rasheed Ahmed 614/HC, Ghulam Mustafa 447/C, Abdul Ghaffar 1219/C, Sharafat Ali 1252/C and Shahid Ibrahim 1018/C of CIA Staff, was present in his office. He received spy information that one person was selling contraband (he**in) infront of his house situated behind Mian Electronic Club Road, Vehari. On receipt of information the complainant along with other PWs, while boarding on official vehicle bearing Registration No. VRC/1020 driven by Samar Latif 1416/C reached at the spot, on the signal of the informer encircled the accused, who was apprehended and disclosed his name as Nadeem Akhtar son of Manzoor Ahmed, caste Arain, resident of back side of Mian Electronic Club Road, Vehari. On his personal search 50 small packets containing he**in total 11 grams were recovered from his pocket besides sale proceed consisting currency notes worth of Rs. 3,380/- (P-2/1-12, P-3/1-20, P-4/1-32 and P-5/1-34). Upon further search of accused chemical in the shape of powder (of he**in origin) total 3-KGs and 970 grams (P-5) was also recovered. All the recovered articles were taken into possession vide recovery memo. Exh.PA. The complainant drafted complaint and dispatched it to Police Station for registration of formal FIR. Thereafter investigation was entrusted to Altaf Hussain, S.I. (PW-5) who along with other police officials visited the place of occurrence. He inspected the spot, prepared rough site-plan (Exh.PD) and recorded statements of the prosecution witnesses under Section 161, Cr.P.C. The complainant handed over the case property and sale-proceed to Ghulam Mustafa 447/C for depositing it in Malkhana for safe custody and onward transmission for forensic analysis.

3. Upon conclusion of investigation, report prepared under Section 173, Cr.P.C. was submitted before the learned trial Court through prosecution and appellant was formally indicted on 04.05.2016 to which he pleaded not guilty and claimed trial. In order to substantiate its version, prosecution produced as many as five (5) prosecution witnesses.
4. After completion of the prosecution evidence, statement of the appellant, as envisaged under Section 342, Cr.P.C. was recorded by the learned trial Court. He professed his innocence and pleaded false implication in the case. He neither opted to get his statement recorded under Section 340(2), Cr.P.C., nor did he produce any defence evidence. Upon completion of trial, the learned trial Court having found the case against the appellant to have been proved beyond any reasonable shadow of doubt, convicted and sentenced him as mentioned and detailed above.
5. Arguments heard, record perused.
6. The main crux of arguments advanced by learned counsel for the appellant is that chain of safe custody of recovered contraband in this case could not be established during the course of trial. While elaborating his arguments learned counsel contended that according to prosecution version the complainant handed over the case property to Altaf Hussain SI (PW.5) but according to him same was handed over to Ghulam Mustafa 447/C, CIA, who was not produced as a witness during the course of trial. In order to evaluate the contention of learned counsel for the appellant, we have minutely scrutinized the material available on record and observed that while making his statement during the course of trial Altaf Hussain, S.I. (PW-5)/Investigating Officer stated that the complainant handed over case property to Ghulam Mustafa 447/C, CIA. Relevant extract out of his statement is reproduced as under:
“Rasheed Ahmad Inspector/complainant handed over case property of this case i.e. two sealed parcels as sample and two sealed parcels as case property of he**ine along with sale proceed Rs. 3,380/- to Ghulam Mustafa 447/C, CIA.”

However, surprisingly said Ghulam Mustafa was neither cited as a witness in the calendar of witnesses nor his statement was recorded during the course of trial. When confronted learned Deputy Prosecutor General also frankly conceded this aspect. Hence, as rightly pointed out by learned counsel for the appellant, safe custody of the case property in this case had been compromised. The law on the subject is very much settled that the prosecution is under bounden duty to establish every limb of safe custody of the recovered contraband and in case it is not established beyond doubt, the same cannot be used against the accused. There is force in the contention that the chain of safe custody has not been indubitably established by the prosecution. The mechanism of chain of custody or safe custody and safe transmission of recovered contraband for forensic analysis has been elucidated in an elaborative manner by the august Supreme Court of Pakistan in Mst. Sakina Ramzan vs. The State - 2021 SCMR 451 in following terms:
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 separation of the representative samples of the seized narcotic drug, storage of the representative samples and the narcotic drug with the law enforcement agency and then dispatch of the representative samples of the narcotic drugs to the office of the chemical examiner for examination and testing. This chain of custody must be safe and secure. This is because, the Report of the Chemical Examiner enjoys critical importance under CNSA and the chain of custody ensures 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 in order to be able to place reliance on the Report of the Chemical Examiner.
In a recent judgment of august Supreme Court of Pakistan in Qaiser Khan’s Case[1] it has been held as under:
“The law in this regard is settled by now that if safe custody of narcotics and its transmission through safe hands is not established on the record, same cannot be used against the accused.”
It was also held in Zahir Shah alias Shat v. The State through Advocate-General, Khyber Pakhtunkhwa - 2019 SCMR 2004 that:
“This Court has repeatedly held that safe 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 i.e., safe custody or safe transmission impairs and vitiates the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction”
In another recent verdict the prestigious Supreme Court of Pakistan extended benefit of broken chain of safe custody to appellant in Zubair Khan's Case[2] and acquitted him. In successive verdicts,[3] where chain of safe custody and transmission for forensic analysis was compromised, honorable Supreme Court of Pakistan extended the benefit of doubt to the appellants.

7. It is cardinal principle of law that the case carrying harder sentence must be proved through credible and persuasive evidence and transparent process in order to rule out the possibility of any error. Respectful reliance in this regard can be placed on the ratio decidendi rendered by august Supreme Court of Pakistan in Ameer Zeb's Case[4] as infra:
“Punishments provided in the Control of Narcotic Substances Act, 1997 were quite stringent and long, if not harsh, and, thus, a special care had to be taken that a Court trying such an offence had to be convinced that the entire quantity allegedly recovered from the accused person's possession was indeed narcotic substance. We, reverently and respectfully, tend to agree with the latter view and would like to add that the rule of thumb for safe administration of criminal justice is: the harsher the sentence the stricter the standard of proof.”

8. Moreover, it is cardinal principle of law that a single circumstance creating reasonable doubt would be sufficient to smash the veracity of prosecution case and the benefit of said doubt has to be extended in favour of the accused not as a matter of grace or concession but as a matter of right. Respectful reliance in this regard can be placed upon the ratio decidendi of august Supreme Court of Pakistan in the cases of Qaisarullah and others vs. The State 2009 SCMR 579 & Kamran Shah and others v. The State and others - 2019 SCMR 1217

9. In the circumstances discussed above, we are fully convinced that the prosecution has failed to prove its case against the appellant beyond reasonable doubt, therefore, while allowing Crl. Appeal No. 94/2017, the conviction and sentence recorded by the learned trial Court are set aside and the appellant is acquitted of the charge in case FIR No. 560/2015, dated 19.12.2015, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered with Police Station Danewal Vehari, while extending him benefit of doubt. He is directed to be released forthwith if not required in any other case.
10. Before parting with the judgment, it would be advantageous to identify the root cause of failure of prosecution against the drug pushers as matter of routine due to flawed investigation and shoddy prosecution. Foremost cause of acquittal in narcotics cases is absence of chain of safe custody despite of the fact that apex Court of this Country elaborated concept of chain of safe custody recurrently in series of judgments as referred to above. To maintain the chain of safe custody in narcotics cases is most critical procedure for successful prosecution of an accused. It is imperative and a must to assure the Court of law that sample of narcotics substance sent to forensic lab and bulk quantity presented before it is same as allegedly recovered from the accused at the crime scene. It further postulates that the case property continuously remained in the custody of a person designated to handle it. The continuity of safe possession or custody of recovered narcotics substance, from its transportation from the place of recovery (at the scene of a crime or from a person) to designated store room, further transmission of samples to the laboratory for examination and presentation of rest of the bulk quantity before the trial Court from store room, is known as the chain safe of custody.
11. The Control of Narcotics Substance Act, 1997 (CNSA) provides stringent provisions for offenders involved in narcotics selling, possession and trafficking. Despite the fact that major offences under the aforesaid Act are non-bailable, it has been observed that in numerous cases the drug offenders secure acquittal on technical grounds. A large number of offenders involved in narcotics cases are acquitted due to compromised chain of safe custody. The acquittals in serious offences particularly in narcotics cases raise serious concerns amongst the masses qua the performance of investigating agencies and prosecution department other than seriously jeopardizing the effort to eliminate menace of drugs from society.
12. Maintaining the chain of safe custody is a legal and professional responsibility of investigating agency and subsequently presenting it before the trial Court by the prosecution. Role of investigating agency and prosecution is equally crucial to ensure the conviction of an accused in criminal cases. Duty of Investigating Officer is to collect the evidence and send the same to prosecutor, who is saddled with the duty to present that evidence in Court to prove the guilt of accused. Any slipup in collection of evidence or adducing the same in trial Court results in acquittal of accused. It is observed that at times despite of the fact that investigation report filed by investigating agency under Section 173, Cr.P.C. is compact and contains the plausible evidence to prove the chain of safe custody but same is not properly presented in the trial Court. As such, it is incumbent upon the investigating agencies and prosecutors to perform their assigned duties in a professional manner to achieve the desired object of law. Conviction of an accused is not possible without investigating agency and prosecution complementing each other and playing their respective role under the law.
13. The law regulating the chain of safe custody of recovered narcotics substance and its strict compliance is of utmost significance. Before referring to the law in our country pertaining to the chain of safe custody, it would not be out of place to have a bird eye view of law on the subject matter from neighboring jurisdiction i.e. India. The relevant law is The Narcotic Drugs and Psychotropic Substances Act, 1985 and relevant provision is Section 55 which is reproduced hereunder:
Section 55. Police to take charge of articles seized and delivered.--An officer in charge of a police station shall take charge of and keep in safe custody pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.
The Narcotic Drugs and Psychotropic Substances Act, 1985 does not make any special provision regulating storage and safe custody of the contraband substances. All that Section 55 of Narcotic Drugs and Psychotropic Substances Act, 1985 envisages is that the officer in charge of a Police Station shall take charge of and keep in safe custody the seized article pending orders of the Magistrate concerned. But Standing Order No. 1 of 1989 dated 13th June, 1989 prescribes the elaborative procedure to be followed for seizure, sampling, safe keeping and disposal of the seized Drugs, Narcotics and Psychotropic substances, which is being followed throughout the country. It provides a self-explanatory procedure to do the needful.
14. Although in our country under Control of Narcotics Substance Act, 1997 there is no explicit provision regulating the process of safe custody but Control of Narcotic Substances (Government Analysts) Rules, 2001, farmed under Section 77 of the Act ibid provide procedure qua the preparation of samples and their dispatch to forensic lab in order to establish safe custody. Section 516- A, Cr.P.C., 1898, and several rules contained in Police Rules, 1934 provide self-explanatory procedure to be followed to maintain the chain of safe custody of recovered narcotics substance.
15. This matter is of great concern that due to defective investigation and at times poor prosecution accused in narcotics cases succeed to secure acquittal. Forming the chain of safe custody of recovered narcotics substance is a straightforward and uncomplicated procedure. There is nothing onerous or tricky involved in process to maintain and prove such chain but unfortunately such procedure is unheeded, which results in failure of prosecution against the accused of drug cases. It is imperative to create appropriate awareness qua the correct procedures of maintaining the chain of safe custody of narcotics and its importance amongst the officials of investigating agencies dealing with such cases. It is often ignored and given very little significance as a seemingly simple and straightforward procedure, which often results in acquittal of drug paddlers. Still, it must remain in mind that it is the most crucial procedure, which ultimately decides the fate of narcotics cases.

16. Some vital steps, which are obligatory to ensure the conviction of an accused through maintaining chain of safe custody, are formulated hereinafter to ensure effective investigation and successful prosecution in cases relating to narcotics.

• Any police officer setting up a picket, conducting a raid on spy information or otherwise or leaving police station for patrolling must enter in the relevant police register his departure and arrival. Incorporation of arrival and departure by the police officer in Register No. 2 maintained under Police Rules, 1934 (hereinafter "Rules") is mandatory. The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty must be incorporated in the aforesaid register. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by him personally by signature or seal. Every police officer of or above the rank of head constable, when returning from duty other than an investigation in which case diaries are submitted, shall have an entry made in the daily diary by the station clerk or his assistant showing the places he has visited and the duties performed by him during his absence from the police station.[5] Such entries provide corroboration qua the alleged recovery of narcotics and arrest of accused and absence of such entries in the relevant register creates doubt which goes in favour of accused.
• The parcels of sample and rest of the bulk quantity (case property) shall be secured with sealing wax bearing the seal impression of the responsible/relevant police officer and shall be properly marked and labeled. Thereafter such parcels shall be sent to be kept in safe custody in store room as prescribed under Rules.[6] Entries regarding depositing and removal of said case property subsequently shall be entered in police register No. 19 as provided in Rules.[7]

• Statements of police officials, recovering the narcotics from accused, making parcels of case property, transporting the same from crime scene to store room to be kept in safe custody, receiving it and keeping it in store room, handing over the sample parcels for further transmission to forensic lab and depositing those parcel in forensic lab, must be recorded under Section 161, Cr.P.C. and they must be produced as witnesses during trial to prove the fact that narcotics substance as produced in forensic lab and before the Court is same which was recovered from the accused at crime scene.
• While transmitting the sample parcels to forensic lab the process provided in rules[8] must be adhered to qua obtaining road certificate from Register No. 21 of police station as mentioned in aforementioned rules. Copy of such road certificate should also be made part of case file.
• The police official who transmits the complaint to police station for registration of FIR and official who jots down the crime report under Section 154, Cr.P.C. in relevant register[9] should be produced before the Court as witnesses in order to eliminate all the doubts qua the culpability of a drug paddler.
• Prosecutor must ensure that no prosecution witness, who is necessary to prove the chain of safe custody, is left out. Production of these witnesses before the trial Court is eventually responsibility of the prosecutor. It is mandatory upon him to perform his functions and exercise his powers fairly, honestly, with due diligence in the public interest and to uphold the justice.[10]

• It has also been observed by this Court that sometimes crucial incriminatory piece of evidence is not put to an accused, which ultimately results in his acquittal. Trial Court should be very cautious and vigilant, while recording statement of accused as envisaged under Section 342, Cr.P.C. and should make sure that every piece of evidence available on the record is put to the accused.
• In addition to aforementioned steps, Punjab Forensic Science Agency issued directions[11] in year 2012 to establish valid chain of custody of recovered narcotics, which unfortunately could not be followed strictly. These direction must be followed too and same are reproduced hereafter:-
For a valid chain of custody, all items of evidence must be labeled with the following information:
• Name of victim or suspect.
• Case number.
• Type of specimen (i.e., Narcotic Plant material, narcotic medicines, Injections, ci******es, used syringes, Chars, capsules, o***m).
• Amount of sample.
• Time and date of collection.
• Names, stamp, designation of person collecting the sample.
Finally, the sample collected must be sealed with molten wax seal to document specimen integrity. A reference seal sample must be attached along with the packed sample.
Alternatively, all of the samples collected for a given case may be placed in a tamper-evident container labeled with the case number and name.
17. In addition to above, in compliance of direction issued by Honorable Supreme Court of Pakistan in Criminal Petition No. 1402-L of 2016 titled as “State vs. Abdul Haq” Standard Operating Procedure (SOP) was issued in year 2017 after the approval of Provincial Police Officer, Punjab to ensure the chain of safe custody in narcotics cases, and it was circulated throughout the Province among the Investigating Officers, but it proved a futile effort, as usual it had never been followed. We don't have a slightest of hesitation to hold that there is
abundance of laws to ensure chain of safe custody but real challenge lies in implementation of these laws, which, regrettably, has become "mission impossible" which is well reflective from the history of our criminal justice system.
18. Investigation is substratum of every criminal case, therefore any flaw therein, eventually, results in acquittal of culprits. Defective investigation in criminal cases should not be overlooked by the high ups of investigating agencies, responsible for supervision of such process. In presence of a self-explanatory procedure to maintain the chain of safe custody, non-compliance of the same is a criminal act which should be dealt with accordingly. It is high time to curb the pitfalls of defective investigations to ensure the smooth operation of our criminal justice system to bring the actual culprits to book.
19. District Police Officers, in their concerned districts, shall take serious notice of acquittals resulted due to defective investigations and proceed against the delinquent investigators under the relevant provisions of law, which include penal as well as departmental action. Accountability is the glue that bonds commitment to results[12] and where there is no accountability there is no responsibility.
20. Office shall transmit a copy of this judgment to the Inspector General of Police/Provincial Police Officer Punjab, as well as, Director General, Anti-Narcotics Force, who shall make arrangements for its circulation within relevant hierarchy working under their supervision and ensure its compliance in letter and spirit.
(K.Q.B.)
[1]. 2021 SCMR 363
[2]. ZUBAIR KHAN's v. The STATE - 2021 SCMR 49
[3]. ABDUL GHANI and others v. The STATE and others - 2019 SCMR 608, KAMRAN SHAH and others v. The STATE and others - 2019 SCMR 1217, FAIZAN ALI v. State - 2019 S CMR 1649, Mst. Razia Sultana v. The State and another - 2019 SCMR 1300, ZAHIR SHAH alias SHAT v. The STATE through Advocate-General, Khyber Pakhtunkhwa - 2019 SCMR 2004, Haji NAWAZ v. The STATE - 2020 SCMR 687, State v. Imam Bakhsh - 2018 SCMR 2039, Amjad Ali v. The State - 2012 SCMR 577 and Ikramullah and others v. The State - 2015 SCMR 1002
[4]. PLD 2012 SC 380.
[5]. Rule 49 Chapter 22 Police Rules, 1934.
[6]. Rule 11 Chapter 22 Police Rules, 1934.
[7]. Rule 70 Chapter 22 Police Rules, 1934.
[8]. Rule 72 Chapter 22 Police Rules, 1934.
[9]. Rule 1 Chapter 24 Register No. 1.
[10]. Section 12(9) Punjab Criminal Prosecution Service (constitution, functions & Powers) Act, 2006.