13/04/2026
پشاور ہائی کورٹ نے گاڑی کے خفیہ خانوں میں سے 2.200 کلو گرام آئس برآمدگی پر ڈرائیور اور فرنٹ سیٹر جن کے جامہ تلاشی لینے پر ایک عدد پستول بمعہ کارتوس برآمد ہوئے ہیں کی ٹرائل کورٹ کی سزا کالعدم کرتے ہوئے بری کرتے ہوئے قرار دیا ہے کہ منشیات مقدمات میں قانون میں پارلیمنٹ نے سخت ترین سزاواں مقرر کئے گئے ہیں اور پولیس والوں کو تمام اختیارات اور فیسلیکیٹی دی گئی ہیں تاکہ معاشرے کو اس لعنٹ سے پاک کیا جا سکیں سخت سزاواں کیلئے کوالٹی شہادت کی ضرورت ہوتی ہیں اس مقدمہ میں نموناجات ایک دن تاخیر کے ساتھ لیبارٹری کو وصول کئے گئے ہیں کسٹبل نے پولیس سٹیشن کے مال خانہ سے نکلنے کے بعد کیوں ،کہاں لیکر گیا تھا سپریم کورٹ نے منشیات مقدمات میں مخفوظ کسٹڈی پر کوئی سمجھوتا نہیں کیا جا سکتا ہے ملزمان کو شک و شبہ کا فائدہ دیتے ہوئے بری کر دیا گیا ہے
IN THE PESHAWAR HIGH COURT, PESHAWAR [JUDICIAL DEPARTMENTI
Cr. A No. 823-P/2025
Abdur Rehman and another.
Appellants
Vs
The State
Present:
M/S. Noor Alam Khan and Fawad Afzal, advocates for the appellants.
Mr. Niaz Muhammad, AAG for the State.
Date of hearing:
25.03.2026
JUDGMENT
MUHAMMAD IJAZ KHAN, J.- Through this appeal, appellants namely Abdur Rehman s/o Naseeb Jan and Alam Khan s/o Khan Zareen have called in question the order and judgment of their conviction and sentence passed by the learned Special Judge, ATC-II/ Anti-Narcotics Court-II, Peshawar, dated 18.08.2025, vide which appellants were convicted under Section 11-C of The Khyber Pakhtunkhwa Control of Narcotics Substances Act, 2019 and sentenced to five (05) years rigorous imprisonment (R.I) along with fine of Rs. 300,000/- (Three Hundred Thousand). In default of payment of fine, appellants have further to suffer simple imprisonment (S.I) for a period of six (06) months.Benefit of section 382-B Cr.PC was extended to the appellants.
2. As per prosecution story, as set in the Murasila (Ex.P/1), that on the date and time of occurrence, the complainant namely Faheem Shah, S.I was present on routine duty near Tarnab Police Post, G.T Road, when he received information about smuggling of a huge quantity of methamphetamine (ICE) through a motorcar, Honda, black in color, bearing No. BD-78, Islamabad from Peshawar to Punjab. In the meanwhile, the said motorcar coming from Peshawar side was signaled to stop and two persons sitting therein were deboarded. Out of whom, the driver disclosed his name as Alam Khan s/o Khan Zareen and upon his search, a 9-mm pistol along with 12 live rounds were recovered from the fold of his trouser, whereas, the front seater identified himself as Abdur Rehman s/o Naseeb Jan and from his search, a 9-mm pistol along with seven (07) live rounds of the same bore were also recovered from him, however, they did not produce license or permit of the pistols/rounds on the spot. The search of the motorcar was also conducted, which led to the recovery of two (02) packets of ICE, wrapped in white plastic from the boot of the said motorcar. On weighing, one packet was found to be 1077 grams and the other as 1101 grams and a total contraband of 2178 grams was found recovered from the motorcar. Out of the recovered stuff, 1/1 gram was separated and sealed in parcel No. 1 and 2 for FSL analysis, whereas, the remaining contraband was sealed in parcel No. 3 and a videography of the whole proceeding was made and saved in a memory card, which was sealed in parcel No.4 and all the parcels were sealed by affixing a monogram of "CH". The accused were arrested on the spot and Murasila (Ex.P/1) was drafted, card of arrest (Ex.P.W 3/2) of the accused was issued and the mobile set recovered from the accused/appellant along with the motorcar, B.D-78 were taken through the recovery memo (Ex-P.W 3/1) and sent to the police station through Constable, Najahat for registration of the FIR, hence, the aforesaid FIR was registered against them.
3. After completion of investigation, complete challan was submitted before the Court u/s 173 Cr.PC on 22.04.2025. The appellants then accused were summoned by the learned trial Court and charge was framed against them on 08.05.2025, to which they pleaded not guilty and claimed trial. The prosecution was invited to produce its evidence, who accordingly examined as many as seven (07) witnesses in support of the case. Thereafter, statements of accused were recorded under section 342 Cr.P.C and on conclusion of the trial in the case, the appellants were convicted and sentenced by the Court of learned Special Judge ATC-II/Anti-Narcotics Court-II, Peshawar vide the impugned order/ judgment dated 18.08.2025. The appellants have now challenged the aforesaid judgment by filing the instant appeal before this Court.
4. Arguments of learned counsels for the appellants as well as learned AAG appearing on behalf of the State were heard in considerable detail and the record perused with their able assistance.
5. In narcotics cases, the prosecution is required to establish the mode and manner of the recovery, the preparation of the samples, the safe transmission of the samples from the spot to the police station, the safe custody of the same within the police station and from the police station to the FSL, however, in the present case, the prosecution has not been able to establish on record the safe custody of samples within the police station and the safe transmission of the parcels from the police Station to the FSL as it is the case of prosecution that Investigation Officer, has drafted an application (Ex-P.W 3/3) for sending the samples to the FSL on 13.03.2025, whereas, the route certificate (Ex.P.W 2/1) was issued by the Moharrir of the police station, namely Mushtaq, ASI on 14.03.2025 and when the said Moharrir appeared in the Court as P.W-5, he has stated that:
"I prepared receipt on 14.03.2025 and delivered the same to Constable, Bakhtiyar along with sample parcels."
Similarly, the said carrier of samples, namely, Bakhtiyar has also appeared in the Court as P.W-2 and who has also endorsed the aforesaid factum that the receipt/road certificate was prepared on 14.03.2025 and the fact that he has deposited the parcels on 15.03.2025. The deposit of the parcels on 15.03.2025 also finds support from the FSL report, Ex.P.Z, therefore, in the given facts and circumstances, when learned AAG was confronted that whether the prosecution has been able to prove the safe custody of the parcels containing samples for 24 hours i.e. from 14.03.2025 to 15.03.2025, he was unable to give any satisfactory answer or to make any reference to the evidence of prosecution offering for the said explanation and as such, the prosecution has not been able to prove the safe transmission of the contraband from police station to the FSL.
6. In the recent past there is a judicial consensus that the prosecution has to prove safe transmission and safe custody of the contraband/samples and the heinousness of the charge and recovery of huge quantity would not absolve the prosecution of such duty. In the case of it was held by the Apex Court that it is 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 transmission of the sample parcels to the concerned laboratory. Such chain has to be established by the prosecution and if any link is missing in such like offences the benefit must be extended to the accused. Similarly, in the case the Hon'ble Apex Court has held that neither the safe custody nor the safe transmission of the sealed sample parcels to the concerned Forensic Science Laboratory was established by the prosecution because neither the Moharrir nor the Constable who deposited the sample parcels in the concerned laboratory was produced. Similarly, in the case, the Hon'ble Apex Court has held that recovery was affected on 03.07.2015, whereas the sample parcels were received in the office of Forensic Science Laboratory on 15.07.2015 through a police constable, but the said constable was never produced by the prosecution to establish the safe transmission of the sample parcels to the concerned laboratory and there was no explanation as to why such evidence was withheld. Due to such defect on the part of the prosecution it could not be held with any degree of certainty that the prosecution had succeeded in establishing its case against the accused person beyond any reasonable doubt.Likewise, in the case, the Hon'ble Apex Court has held that although Jahangir Khan, H.C. (PW-1) claimed that complainant had handed over the sample parcels to him which he further handed over to Moharrar Investigation for safe custody for sending them to Forensic Science Laboratory, Peshawar. The said Moharrar Investigation who according to Jahangir Khan, H.C. (PW-1) kept the sample parcels in safe custody was never produced by the prosecution. So, the safety of sample parcels was not established by the prosecution. Ajmal Khan, Constable, who allegedly took the sample parcels to the concerned Laboratory was also not produced. In that eventuality, prosecution failed to establish safe custody and safe transmission of the sample parcels to the concerned quarter and the prosecution could not give any plausible explanation for not producing said important witnesses. The said defect in the prosecution case goes into the root of the case creating serious doubt regarding the narcotics and its recovery. In the case, the Hon'ble Supreme Court has held that the most important thing we observe is that neither the safe custody nor the safe transmission of the sealed sample parcels to the concerned laboratory was established by the prosecution because neither the Moharrar nor the Constable concerned (FC-3746) who deposited the said parcels in the concerned laboratory was produced. It is also a circumstance that recovery was effected on 17.07.2010 whereas the sample parcels were received in the said laboratory on 20.07.2010 and prosecution is silent as to where remained these sample parcels during this period, meaning thereby that the element of tampering with is quite apparent in this case. In the case of "Abdul Ghafoor v/s The State & another" reported as 2022 SCMR 819, the Hon'ble Apex Court has observed that heinousness of the charge and huge quantity of the alleged contraband, notwithstanding, the prosecution was under a bounden responsibility to drive home the charge by proving each limb of its case that essentially included production of the witness, tasked with the responsibility of transmitting the samples to the office of Chemical Examiner. Failure is devastatingly appalling with unredeemable consequences that cast away the entire case. Reliance could also be made on the following
judgments;-
i. "Said Wazir and another v/s The State and others" reported as 2023 SCMR 1144.
ii. "Zafar Khan and another v/s The State" reported as 2022 SCMR 864.
iii. "Subhan Ullah v/s The State" reported as 2022 SCMR 1052.
iv. "Akhtar Gul v/s The State" reported as 2022 SCMR 1627.
V. "Qaiser and another v/s The State" reported as 2022 SCMR 1641.
vi. "Shah Zameen v/s The State" reported as 2022 SCMR 2149.
7. Another aspect of this case, which cast serious doubt on the presence of the Seizing Officer, Faheem Shah, S.I on the spot is that though in the Murasila (Ex.P/1), he has stated that after recovery of the alleged contraband, he separated the samples from each packet and then sealed the said samples into various parcels by affixing monogram of "CH", whereas, under the relevant rules, he was required to have inscribed the monogram of abbreviation of his own name Faheem Shah i.e. "F.S", however, the parcels samples, which were received in the FSL were having monogram of "C.H", which words were neither the abbreviation of the name of Seizing Officer (Faheem Shah) nor of the name of any other police officials, who were present at the time of alleged recovery, therefore, the very presence of the Seizing Officer on the spot is doubtful. In a case, Supreme Court of Pakistan while acquitting the accused has observed that the most important factor in that connection, which compounded all those doubts and raised a big question mark upon the veracity of the prosecution's case against the appellant, was that after allegedly recovering the contraband substance from the boot of the motorcar driven by the appellant the parcels of the recovered substance were sealed with a monogram reading as SJ and it had been disclosed by Mati-ur-Rehman (P.W.2) before the learned trial Court that the said monogram belonged to one Sameen Jan Inspector who was not even posted at the relevant Police Station at the time of the alleged recovery from the appellant and as a matter of fact at the said time the said Inspector was serving at a Police Station in Quetta. Mati-ur-Rehman (P.W.2) had not been able to advance any explanation whatsoever as to why the recovery officer namely Assistant Director Rehmat had not put his own monogram on the seals of the parcels prepared by him and as to why he had used the monogram of some other officer who was not even posted at the relevant Police Station at the relevant time.
8. As far as the case of front seater namely Abdur Rehman is concerned, since, he was sitting on the front passenger seat and as the alleged contraband has been recovered from the boot of the motor car, which is an invisible place, therefore, in such state of affairs, the prosecution is heavily duty bound to establish the conscious knowledge on the part of the co-appellant Abdur Rehman, however, on the available record and the evidence produced by the prosecution, it has not been able to prove that the co-appellant Abdur Rehman was having any conscious knowledge of the contraband concealed in the boot of the motorcar, as the contraband has not been recovered on the disclosure or pointation of the co-appellant, Abdur Rehman. Similarly, the prosecution has also not been able to prove that the co-appellant, Abdur Rehman is the relative or a friend of the principal accused, namely Alam Khan. The prosecution has also not bothered to collect CDR report of the two accused of having any contact in the past or to establish the nature of conversation between them. It is also an admitted fact and as admitted by the learned prosecutor at the bar as well that the appellant has no previous history of involvement in such like activities, therefore, to his extent too, the prosecution has not been able to prove the conscious knowledge on the part of co-appellant, Abdur Rehman and as such, he too has wrongly been convicted by the learned trial court vide impugned judgment. The Supreme Court has consistently held that the person found driving a vehicle containing narcotics in its secret cavities or invisible places is presumed to have no knowledge of its contents. In a case the Apex Court observed that knowledge and awareness would be attributed to the in charge of the vehicle. Likewise in another case, this Hon'ble Court has held that, no doubt, the appellant, as per the prosecution case, was found sitting in the car at the relevant time but there is no material on the case file to show that she had a conscious knowledge that the case contraband was being smuggled in the car. Mere sitting in a vehicle wherefrom some contraband is recovered would not be enough to hold the seater liable for conviction unless it is shown by the prosecution through reliable evidence that she had conscious knowledge qua the activity of smuggling which is not the case in hand.
9.It is settled since long that for giving benefit to an accused, it is not essential that there should be many grounds for the same, even a single doubt is sufficient to extend its benefit to an accused person as it is the cardinal principle of criminal administration of justice that let hundred guilty persons be acquitted but one innocent person should not be convicted. In the case, the Hon'ble Apex Court has held that for the accused to be afforded the right of benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the petitioner. Similarly, in the case, the Hon'ble Apex Court has held that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable; trustworthy and reliable evidence. Any doubt arising in prosecution's case is to be resolved in favour of the accused and burden of proof is always on prosecution to prove its case beyond reasonable shadow of doubt. Likewise, in the case", the Hon'ble Apex Court has held that Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence and any doubt arising in prosecution's case is to be resolved in favour of the accused. In the case¹2, the Hon'ble Apex Court has reiterated the same rational by observing that in these circumstances, a dent in the prosecution's case has been created, benefit of which must be given to the appellant. It is a settled law that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence. Reliance could also be made on the following judgments; -
i. "Amir Muhammad Khan v/s The State" reported as 2023 SCMR 566.
ii. "Sarfaraz and another v/s The State" reported as 2023 SCMR 670.
iii. "Muhammad Ashraf alias Nikka v/s The State" reported as 2022 SCMR 1328.
iv. "Kashif Ali alias Kalu v/s The State and another" reported as 2022 SCMR 1515.
v. "Tajamal Hussain Shah v/s The State another" reported as 2022 SCMR 1567. and
10. For what has been discussed above, this Court is of the firm view that the prosecution has failed to prove its case against the appellants beyond reasonable doubt, therefore, their conviction cannot be maintained. Resultantly, while extending them the benefit of the doubt, this appeal is allowed and the impugned order/judgment of conviction and sentence dated 18.08.2025. passed by the learned Special Judge ATC-II/Anti-Narcotics Court-II, Peshawar is set aside to the extent of conviction of the appellants only, however, to the extent of confiscation of motorcar bearing No. BD-78/ICT, the same too is set-aside and to this extent, the case has been remanded back to the learned Trial Court vide order of this Court of even date, rendered in connected Cr.A No. 848-P/2025 titled "Naseeb Jan Vs. The State and others" for deciding the fate of claim of the appellant, Naseeb Jan and thus, as a result thereof, the appellants are acquitted of the charges levelled against them. The appellants are on bail, their bail bonds stand cancelled and sureties thereof are discharged from their liability.
Announced.
Judgment copy available in comments
