08/12/2025
پشاور ہائی کورٹ نے آئس 4کلوگرام انٹرنیشنل ائیرپورٹ کے مسافر کو سزا کالعدم کرکے بری کرتے ہوئے قرار دیا ہے کہ ٹرالی بیگ اتنی سیکیورٹی اور سکینگ مشین اؤر سی سی ٹی وی کیمروں اور تمام اداروں کے موجودگی میں کیسے گزر گیا ائیر لائن کے لاگیج سے اپلوڈ کیا گیا جس میں سے برآمدگی ہوئی ہے اور بورڈنگ کارڈلاگیج نمبر جو مسافر سے برآمد ہوا تھا اور جو ایے ایس ایف ائیرپورٹ کے افلوڈنگ سرٹیفکیٹ میں درج تھا وہ بلکل مختلف تھا شک کا فائدہ دیتے ہوئے بری کر دیا گیا
JUDGMENT SHEET IN THE PESHAWAR HIGH COURT, PESHAWAR JUDICIAL DEPARTMENT
JUDGMENT
Cr. Appeal No. 964-P/2024.
Ibrahim Khan Vs The State
Mr. Asif Khan, Advocate.
For the appellant
For State
Mr. Khalid Khan, Advocate.
Date of hearing
06.11.2025.
JUDGMENT.
Dr. Khurshid Iqbal, J.
1. Through the instant criminal appeal, Ibrahim Khan son of Usman Gul (hereinafter referred to as "the appellant") has assailed the validity of the judgment dated 07.11.2024, passed by the learned Judge, Special Court (CNS-II), Peshawar, in case FIR No.155 dated 30.10.2019, registered under Sections 9-C and 11-C of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, at Police Station ANF, Peshawar. By virtue of the impugned judgment, the appellant was convicted and sentenced as follows:
(1) Under Section 11 (c) KP CNSA, 2019, the appellant was sentenced to undergo rigorous imprisonment for 14 years with a fine of Rupees One Million, and in default of payment of fine, to undergo simple imprisonment for two years.
(ii) Benefit of Section 382-B Cr.P.C. was extended to the appellant.
2. The brief facts of the prosecution case are that, on the basis of spy information received from higher authorities, it was reported that a well-known international narcotics smuggler, namely Ayaz, resident of Swabi, through his agent Ibrahim Khan, was attempting to transport and smuggle narcotics concealed in a trolley bag via Flight No. EK-637 (Emirates Airlines) from Bacha Khan International Airport, Peshawar, to Riyadh via Dubai. Acting upon this information, the complainant constituted a raiding party and proceeded to the spot. Upon suspicion, the appellant Ibrahim Khan, who was present in the departure hall, was apprehended, and a search of his trolley bag was conducted. During the search, 529 grams of Methamphetamine ("Ice") concealed in a Peshawari kehwa packet were recovered, along with six black packets, each containing 529 grams of Ice from a secret cavity within the trolley bag. The total recovered quantity thus amounted to 3.703 kilograms of Ice. The complainant arrested the accused on the spot, took possession of the recovered narcotics and the bag through a recovery memo, prepared the Murasila, and dispatched the same to the concerned police station through Constable Zafar Ali for registration of the FIR.
3. Upon completion of the investigation, a complete challan under Section 173 of the Cr.P.C. was submitted before the trial Court against the appellant. After compliance with the provisions of Section 265-C Cr.P.C., charge was framed against the appellant, to which he pleaded not guilty and claimed trial. Consequently, the prosecution was directed to produce its witnesses.
4. In order to substantiate the charge against the appellant, the prosecution examined as many as six P.Ws. After the conclusion of the prosecution evidence, the statement of the accused was recorded under Section 342 Cr.P.C., wherein he professed innocence and asserted that he had been falsely implicated by the complainant. The appellant neither opted to make a statement on oath under Section 340(2) Cr.P.C. nor produced any evidence in his defence.
5. Upon conclusion of the trial, and after hearing the learned counsel for the parties as well as precisely evaluating the evidence available on record, the learned trial Court, through the impugned judgment dated 07.11.2024, convicted and sentenced the appellant in the manner detailed in the opening paragraph of this judgment. Feeling dissatisfied with his conviction and sentence, the appellant has preferred the instant criminal appeal before this Court.
6. We have heard arguments of the learned counsel for the parties and perused the record with their valuable assistance.
7. The sole point requiring adjudication before this Court is whether the learned trial Judge has properly evaluated the evidence available on record while convicting the appellant-accused Ibrahim Khan, or whether such conviction suffers from legal or factual infirmities.
8. The prosecution primarily relied upon the testimony of Mr. Haroon Rashid, Sub-Inspector (P.W-01), who acted as the complainant/seizing officer of the case. It is settled law that in narcotics cases, the complainant/seizing officer is considered the star witness of the prosecution, as his testimony forms the backbone of the case. Any material contradiction in his deposition or any inconsistency between his version and that of the marginal or attesting witnesses strikes at the very root of the prosecution case. In his examination-in-chief, P.W-01 reiterated the same narrative as contained in the Murasila (Ex.P.W-1/2). According to him, acting upon secret information, he apprehended the appellant from the International Departure Hall of Bacha Khan International Airport, Peshawar, while checking passengers' passports. The appellant was allegedly holding a trolley bag bearing tag number DXB-0637, which was subsequently off-loaded and searched in the International Boarding Area, leading to recovery of Ice weighing a total of 3.703 kilograms. However, during cross-examination, P.W-01 made significant admissions weakening the prosecution's stance. He conceded that due to the rush at the departure hall, luggage of certain passengers remained unchecked. He further admitted that, in the international waiting area, the luggage in question was not in the possession of the accused. This categorical admission is of pivotal importance, as the trolley bag was cleared and loaded in the aircraft, from where it was offloaded and checked. P.W-01 further admitted that he neither recorded the statement nor mentioned the name of the individual or crew member who allegedly off-loaded the trolley bag from the aircraft. This omission assumes critical importance as it directly affects the continuity of the chain of custody from the aircraft to the boarding area. The non-mentioning and non-production of such material witness breaks the chain of custody, thereby creating serious doubt regarding whether the contraband recovered was indeed the same luggage connected to the appellant. It is settled that when the chain of custody is compromised or not proved through cogent and reliable evidence, the recovery becomes doubtful and the benefit of such doubt must go to the accused.
9. The testimony of P.W-02, Constable Zafar Ali of PP Torkham ANF, was merely a repetition of the narrative contained in the Murasila. However, his cross-examination also brought forth material contradictions. He admitted that before entering the international departure hall, every passenger passes through several security agencies and that luggage is scanned by the ASF's scanning machines. He further stated that after issuance of the boarding pass, the luggage remains in the custody of Emirates Airlines staff. This statement raises a significant question if the appellant's luggage had already passed through multiple security checks and sophisticated scanning systems, how could such a substantial quantity of Ice escaped detection? Such improbability casts further doubt upon the authenticity of the alleged recovery. P.W-02 also admitted that at the time of the appellant's arrest, the trolley bag in question was not in the appellant's possession as it had already been handed over to the airline staff and shifted towards the aircraft. This admission once again negates the prosecution's assertion that the contraband was recovered from the appellant's direct possession.
10. Furthermore, a glaring inconsistency appears in the record: the recovery memo (Ex.P.W-1/1) reflects the tag number of the trolley bag as DXB-0637, whereas the off-loading certificate (Ex.P-9) shows the tag number as EK-670280. This discrepancy in identification of the luggage goes to the root of the case, as it creates uncertainty about whether the trolley bag recovered actually belonged to the appellant. The seizing officer (P.W-01) being the complainant as well as the investigating officer (I.O.) of the same case is another serious irregularity and such a combination compromises the neutrality and objectivity of the investigation. In narcotics cases, where strict proof is required, the investigation must be free from any shadow of bias or self-interest. Further doubt arises from the cross-examination of P.W-02, who admitted that his signatures on the recovery memo differ from those on his CNIC. Though he offered a voluntary explanation for this discrepancy, his clarification appears unsatisfactory, particularly when he also admitted that his arrival and departure Daily Diary (D.D.) entries were not available on the judicial file. In narcotics cases, maintenance of D.D. entries regarding the movement of police officials is of vital importance to establish their lawful presence at the time and place of recovery. In cases of this nature, especially where the prosecution is initiated on the basis of a police official's report, the non-production of daily diaries constitutes a serious procedural lapse and is fatal to the prosecution's case. In this respect, this Court in State through Advocate General Khyber Pakhtunkwha, Peshawar Versus Javed Iqbal (2021 YLR 662 [Peshawar High Court (Abbottabad Bench]) held that:
..record showed that prosecution in support of its case had not produced copy of Roznamacha entry of leaving the police station for patrolling, which defect was sufficient to knock down the entire prosecution story, as the base of the prosecution story for proceedings for patrolling was not supported by the documentary evidence production of entry of the DD report in the present case was more essential to establish the case as the entry in the Roznamcha was for specific purpose of patrolling in pursuance thereof Nakabandi was laid and accused was apprehended along with contraband.
This legal proposition has also been taken in cases, Ghulam Mustafa alias Mushtiaq Ali v. The State (2013 P.Cr.L.J 860 [Sindh]) and Wahab Ali and another v. The State (2010 P.Cr.L.J 157 [Federal Shariat Court]).
11. Moreover, both P.W-01 and P.W-02 conceded that CCTV cameras are installed at every point within the airport premises. It is now well-recognized that electronic evidence, including videography and CCTV footage, carries special evidentiary value in narcotics cases. Despite having prior information about the smuggling attempt, the complainant neither arranged for independent witnesses for videography nor made any effort to record the proceedings or obtain CCTV footage from airport authorities. The deliberate omission to secure such vital evidence, which could have conclusively established the veracity of the alleged recovery, further weakens the prosecution's case.
12. It is a well-established principle of criminal jurisprudence that the prosecution bears the burden to prove its case against the accused beyond reasonable doubt. Any inconsistency, contradiction, or material loophole in the prosecution's case must be resolved in favour of the accused, not as a matter of concession, but as a matter of right. In
Ahmed Ali and another v. The State (2023 SCMR 781), the Hon'ble Supreme Court reaffirmed this fundamental principle, underscoring that the benefit of doubt must always be extended to the accused when the prosecution's case lacks the certainty required by law. The relevant para is reproduced as under:
Even otherwise, it is well settled that for the purposes of extending the benefit of doubt to an accused, it is not necessary that there be multiple infirmities in the prosecution case or several circumstances creating doubt. A single or slightest doubt, if found reasonable, in the prosecution case would be sufficient to entitle the accused to its benefit, not as matter of grace and concession but as a matter of right.
13. For what has been discussed above, we accept this appeal, set aside the impugned judgment dated 07.11.2024 and acquit the appellant from the charges levelled against him. He be set free forthwith, if not required in any other case.
Announced
06.11.2025.
