18/03/2025
MUST READ JUDGEMENT.
منشیات مقدمات کا ٹرائل کرنے والے وکلا کیلئے نایاب تحفہ۔
سپریم کورٹ کا تازہ ترین رہنما فیصلہ
منشیات مقدمات میں مال مقدمہ کی محفوظ تحویل اور ترسیل کا دستاویزی ثبوت پیش کیا جانا ضروری ہے ۔
محرر یا انچارج مالخانہ کا محض زبانی بیان متعلقہ رجسٹرز/ روڈ سرٹیفکیٹس پیش کیے بغیر قابل ادخال شہادت نہ ہے
No documentary evidence whatsoever has been brought on record by the prosecution to establish safe custody and transmission.
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.
The Police Rules mandate that case property be kept in the Malkhana and that the entry of the same be recorded in Register No. XIX of the said police station. It is the duty of the police and prosecution to (naeem)establish that the case property was kept in safe custody, and if it was required to be sent to any laboratory for analysis, to further establish its safe transmission and that the same was also recorded in the relevant register, including the road certificate, etc. The procedure in the Police Rules ensures that the case property, when it is produced before the court, remains in safe custody and is not hampered with until that time. A complete mechanism is provided in the Police Rules qua safe custody and safe transmission of the case property to concerned laboratory and then to the Trial Court.
Under Article 129(g) of Qanun-e-Shahadat Order, 1984 ("the Order") it can be presumed that the prosecution did not produce Register No. XIX because the in-charge of the store room had not entered the receipt of parcels in the said register. Under Article 102 of the Order, in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of such matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under Article 76. Therefore, oral testimony of PW-3 with regard to the safe custody of parcels was not admissible under Article 102 of the Order. Hence prosecution failed to prove safe custody of the parcels beyond shadow of doubt.
It is a case of prior information that too in the court timings but the seizing officer neither tried to obtain search warrants as required by section 20 of the Act of 1997 nor he has offered any reason/justification for his non-compliance of the command of section 20. Similarly, the prior information was never recorded in Register No. II as contemplated by rule 22.49 of the Police Rules.
Before parting with the judgement in hand, we have painfully observed in a number of cases that the legislation had introduced the Act of 1997 to curb the menace of drug abuse, prohibit possession of narcotic substances and rehabilitate victims of drug abuse, however, the Anti-Narcotics Force and Police Authorities have failed to adhere to the provisions of the Act of 1997. The law enforcing and investigating agencies are only dealing with the peddlers and if investigation is carried out in accordance with the provisions of the Act of 1997, it would bring to justice the whole chain i.e., cultivator/manufacturer, peddler, seller and drug abuser, and would serve as deterrent factor in the society. The manner in which narcotics cases are being investigated favours the real culprits and only drug peddlers are caught and sent to jail. Nobody dares to investigate the giants who derive profits out of such illicit drug/narcotic deals. Their assets are never investigated. We are afraid that the two ends i.e., drug dealer, cultivator, manufacturer and the drug/narcotic abusers are never held accountable. This would never have been the intention of the legislature while enacting the Act of 1997. The law enforcing agencies,particularly the Anti-Narcotics Force, has failed to adhere to the provisions of the Act of 1997 as well as the SOPs adopted by the force for investigation of criminal cases, which are very comprehensive and cover every aspect of a criminal case registered under the Act of 1997. In most of the cases, the provisions of the Act of 1997, the (naeem)rules made thereunder and the SOPs adopted by the force, to the extent of tracing assets and discovering the complete chain of culprits, have not been complied with. As a result of such incomplete investigation, the society will face the menace of narcotics/drugs abuse forever. If the State prefers to penalize citizens for possessing fruit of the forbidden tree and opts not to cut that forbidden tree and holding its beneficiaries accountable, the outcome would be absurd. Similarly, not investigating the main culprits/sources of narcotic substances in a criminal case would grant them a license to violate the Act of 1997 and cause irreparable damage to the society.
When a criminal case is registered on the allegation of possession of narcotic substances, the accused is arrested at the spot. Then the line of investigation (without prejudice to the Act of 1997 and the rules made thereunder) should be:
(1) to investigate from whom the recovered narcotic substance was received/purchased by the accused;
(ii) to whom the delivery of narcotic substance was intended;
(iii) to investigate the purpose/ultimate utilization for the recovered narcotic substance;
iv) to trace the drug abusers (for their rehabilitation);
(v) who are deriving financial benefits and the use/purpose of the delivered finance/assets;
(vi) who are the persons engaged in the business in contravention of the Act of 1997 (starting from cultivator/manufacturer to the end abuser); and
(vii) which are the assets so derived by persons engaged in dealing with narcotics.
The Act of 1997 provides for a comprehensive mechanism to deal with all matters so as to curb the menace of drug abuse, which in fact is a great threat to the society and adversely affecting the citizens. It is mandatory for the investigating agencies to conduct investigation on true lines in accordance with the spirit of the Act of 1997.
Crl.P.L.A.1187/2021 Jeehand v. The State through Prosecutor General Balochistan Mr. Justice Muhammad Hashim Khan Kakar 14-03-2025.
