03/12/2025
PLJ 2025 Cr.C. (Note) 232
لاہور ہائی کورٹ نے منشیات مقدمہ میں جس تین کلو گرام ہیروئن سکول بیگ سے برآمدگی ہوئی تھی اپیل منظور کرتے ہوئے قرار دیا ہے کہ گواہان کو عدالت گمراہ کرنے کیلئے کہانیوں کو نیا روح دینے کی ضرورت نہیں عدالت کا کام ہے کہ انصاف کی فراہمی کیلئے سچ اور جھوٹ میں تمیز کریں معاشرے کے عوام کو فورس کے رحم و کرم پر چھوڑ نہیں جا سکتا ہے گواہان کے بیانات میں تضاد ہونے کی وجہ سے مخفوظ کسٹڈی کی عدم ثبوت کی وجہ سے شک کا فائدہ دیتے ہوئے بری کر دیا
Present: Tariq Saleem Sheikh & Raja Ghazanfar Ali Khan, JJ.
RAZA alias QARI--Appellant
versus
STATE--Respondent
Crl. A. No. 310 of 2024, decided on 18.6.2025.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----Ss. 9(1)6(d)--Conviction and sentence--Recovery of heroien--Benefit of doubt--The law on point of making dishonest improvements needs no discussion as it is a settled proposition that such witness loses his credence on account of having polluted his deposition--Similarly neither PW.1 nor SI (PW.5) uttered a single word that any sugh entry was made in register or in any Roznamch about handing and taking over of remaining bulk of case property at time of its transmission to Malkhana, Judicial Minchinabad--This non-mentioning of handing and taking over of case property as well as sample parcel in relevant register has made whole prosecution case doubtful so far as chain of safe custody of narcotics is concerned-- The non-production of any such road certificate has made prosecution case further dubious and doubtful--Safe custody of sample parcel cannot be proved, rendering prosecution case to be doubtful and under law, doubt is always to be resolved in favour of accused--The prosecution has failed to prove guilt of appellant beyond any shadow of doubt--Held: It is settled by now that for earning acquittal, accused is not obliged to establish a number of circumstances creating doubt but even a slightest circumstance is sufficient to extend him benefit of doubt--Appeal allowed. [Para 7, 8, 10 & 11] A, B, D & E
2019 YLR 743; 2025 SCMR 923; 2018 SCMR 2039 &
2023 SCMR 781.
“Communi Observantia Non est recedendum”--
----It is a well settled principle of criminal jurisprudence arising out of maxim “Communi observantia non est recedendum” that when law required a thing to be done in a particular manner, same must be done accordingly and if prescribed procedure was not followed, it would be presumed that same had not been done in accordance with law. [Para 9] C
PLD 2024 SC 273.
Date of hearing: 18.6.2025.
Judgment
Raja Ghazanfar Ali Khan, J.--This criminal appeal is directed against judgment dated 04.06.2024 passed by learned Additional Sessions Judge, Minchinabad whereby he after holding trial in case FIR No. 259 dated 24.08.2023 registered under Section 9(1) 6(d) of CNSA, 1997 (Amended Act) 2022 at Police Station Mandi Sadiq Gunj convicted and sentenced Raza alias Qari (appellant) as under:--
Under Section 9(1)6(d) CNSA, 1997:
Fourteen years R.l with fine of Rs. 5,00,000/- and in default of payment of fine to further undergo six months S.I.
The benefit of Section 382-B of Cr.P.C. was also extended in favour of the appellant.
2. Brief facts of the case as per complaint (Exh.PC) are that complainant Shahzad Ahmad ASI (PW.4) along with his other police officials was present at Chhateka petrol pump in the area of Mandi Sadiq Gunj in connection with patrol and checking duty on an official vehicle when he received spy information that Raza alias Qari who deals in he**in and is ruining the young generation was sitting near his house beside the wall of mobile tower and selling narcotics to his customers and if a raid was conducted he could be apprehended whereupon a raiding party conducted raid and on the pointing out of the informer apprehended the said person, who disclosed his name as Raza alias Qari. The accused was holding school bag in his right hand in which He**in tied in double shopper of black colour was recovered which along with shopper was 2900 grams. From the said bag a digital scale and sale proceeds of Rs. 1300/- were also recovered. Out of the recovered he**in 145 grams was separated for chemical analysis. The complainant prepared two sealed parcels i.e. one of sample and other of remaining bulk i.e. 2755 grams of He**in and also affixed his stamp having alphabets of SA on both the parcels and took into possession, the he**in, recovered sale proceeds and digital scale through recovery memo (Exh.PB). The complaint (Exh.PC) was transmitted to the police station through Shah Nawaz 238-C (PW.3) on which a formal FIR (Exh.PD) was registered.
3. On completion of investigation, a report under Section 173, Cr.P.C. was submitted in the Court. The learned trial Court formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case against the appellant produced five witnesses.
4.After the conclusion of prosecution evidence, the learned trial Court also examined the appellant under Section 342, Cr.P.C. The appellant neither appeared as witness of his own under Section 340(2), Cr.P.C. nor produced any evidence in his defence. On the conclusion of trial, the appellant was convicted and sentenced as afore-stated, hence, the instant criminal appeal.
5. We have heard the learned counsel for the appellant as well as learned Deputy Prosecutor General Punjab and gone through the record with their able assistance.
6. The scrutiny of record reveals that the whole prosecution case is hinging upon the recovery of 2900 grams of He**in from the possession of Raza alias Qari (appellant) at the time of his arrest. The prosecution in order to prove the said recovery of He**in produced five witnesses. Shahzad Ahmad ASI (PW.4) is the complainant who reiterated all the averments of his complaint (Exh.PC) and also got exhibited He**in (P-1) which was taken into possession through recovery memo (Exh.PB). Mazhar Ali 1621/C (PW.2) is the attesting witnesses of recovery memos (Exh.PB). It is settled principle of law that the harsher the sentence, the stricter the standard of proof. The provisions of CNSA 1997 are stringent in nature and in order to secure conviction, the prosecution is generally required to prove the flawless recovery proceedings of contraband substance, doubt-free dispatch of complaint from the spot to the police station for the registration of FIR, faultless procedure of safe custody of the recovered narcotics along with its transmission to the office of PFSA and above all the origin of the recovered substance as narcotics.
7.In the above backdrop, we have carefully perused the record and have found many contradictions in the statements of the witnesses. We have observed that during cross examination the defence confronted Shahzad Ahmad ASI (PW.4) with his complaint (Exh.DD) and it evinces therefrom that he made dishonest improvements. The relevant extract from his cross examination is reproduced hereunder:--
“I mentioned in complain Exh.PC that I weighed case property through digital scale. Confronted with Exh.DD where word weighed through digital scale is not mentioned. I mentioned in complaint Exh.PC that I received a spy information that accused was selling narcotics. Confronted with Exh.D.D where he was selling narcotic word is not specifically mentioned rather it is mentioned that he is damaging growth of young people by selling he**in. 1 mentioned in complaint Exh.P.C that I took into possession school bag. Confronted with Exh.D.D where word school bag is not mentioned.”
The law on the point of making dishonest improvements needs no discussion as it is a settled proposition that such witness loses his credence on account of having polluted his deposition. Guidance in this regard can be sought from the case law reported as “Nosher alias Nosha vs. The State and others” (2019 YLR 743), wherein a Division Bench of this Court observed as under:
“It is settled principle of law that fact introduced by witness through dishonest improvement during his evidence before Court does not carry any legal value rather such conduct raises eyebrows regarding evidentiary value of the statement of such witness.”
8.We have also scrutinized the statement of the investigating officer Muhammad Sufiyan SI (PW.5) who did not mention anywhere in his statement that when he handed over the case property to Moharrer of the police station for safe custody any entry was made in Register No. XIX. Similarly, the Moharrer of the police station namely Muhammad Niaz 811-HC (PW.1) did not utter a single word that any entry was made in register No. XIX prior to keeping the case property in Malkhana. Neither the investigating officer nor the Moharrer of the police station produced the attested copy of register No. XIX. Similarly neither Muhammad Niaz 811-HC (PW.1) nor Muhammad Sufiyan SI (PW.5) uttered a single word that any such entry was made in register No. XIX or in any Roznamcha about handing and taking over of the remaining bulk of case property at the time of its transmission on 28.08.2023 to Malkhana, Judicial Minchinabad. This non-mentioning of handing and taking over of the case property as well as sample parcel in relevant register has made the whole prosecution case doubtful so far as the chain of safe custody of the narcotics is concerned. Reliance in this regard is placed on case titled as “Jeehand vs. The State through Prosecutor General Baluchistan” (2025 SCMR 923) wherein the august Supreme Court of Pakistan has held as under:--
“5. After hearing the learned counsel for the parties and perusal of the record, we have straightforward observed that the prosecution has failed to prove its case against the petitioner beyond the shadow of doubt for the following reasons:
i) No documentary evidence whatsoever has been brought on record. Neither entry of Register No. XIX was tendered in evidence nor Road Certificate as contemplated by rule 22,70, Form 22.70 and Rule 22.72, Form 10.17 of Police Rules, 1934. So, this sole contour of the case creates dent in the case of the prosecution. This Court in the case of Asif Ali v. State (2024 SCMR 1408) observed as under:
“Rule 22.70 of the Police Rules, 1934 (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.”
9. Now coming towards production of any road certificate before the Court, we have observed that though Muhammad Niaz 811-HC (PW.1) stated that while handing over sample parcel and case property to Muhammad Sufiyan SI (PW.5) road certificate were issued yet the prosecution has failed to get the same exhibited during evidence. It is a well settled principle of criminal jurisprudence arising out of maxim “Communi observantia non est recedendum” that when law required a thing to be done in a particular manner, the same must be done accordingly and if the prescribed procedure was not followed, it would be presumed that the same had not been done in accordance with law, as held in “Ammad Yousaf vs. The State and another” (PLD 2024 SC 273). The non-production of any such road certificate has made the prosecution case further dubious and doubtful.
10. In the given circumstances, we have observed that the safe custody of the sample parcel cannot be proved, rendering the prosecution case to be doubtful and under the law, the doubt is always to be resolved in favour of the accused. Guidance in this regard can be sought from the case titled as “The State through Regional Director ANF v. Imam Bakhsh and others” (2018 SCMR 2039) which reads as under:--
“The chain of custody begins with the recovery of the seized drug by the Police and includes the separation of the representative sample(s) of the seized drug and their dispatch to the Narcotics Testing Laboratory. This chain of custody, is pivotal, as the entire construct of the Act and the Rules rests on the Report of the Government Analyst, which in turn rests on the process of sampling and its safe and secure custody and transmission to the laboratory. The prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample(s) and will impair and vitiate the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction. This Court has already held in Amjad Ali v. State (2012 SCMR 577) and Ikramullah v. State (2015 SCMR 1002) that where safe custody or safe transmission of the alleged drug is not established, the Report of the Government Analyst becomes doubtful and unreliable.”
11. For what has been discussed above, we are of the considered view that the prosecution has failed to prove the guilt of the appellant beyond any shadow of doubt. It is settled by now that for earning acquittal, the accused is not obliged to establish a number of circumstances creating doubt but even a slightest circumstance is sufficient to extend him the benefit of doubt. Reliance in this regard can be placed on case titled as “Ahmed Ali and another vs. The State” (2023 SCMR 781). Consequently, while giving benefit of doubt in favour of Raza alias Qari (appellant) Criminal Appeal No. 310. of 2024 is allowed; his convictions and sentences are set-aside and he stands acquitted of the charges. The appellant is in judicial custody; be released forthwith if not required to be detained in any other case.
(A.A.K.) Appeal allowed
