27/06/2025
پشاور ہائی کورٹ نے منشیات مقدمہ میں ڈرائیور موٹر کار جس میں سے 29 کلوگرام چرس برآمد ہونے جرم ثابت ہونے پر عمر قید ہوئی،ملزم کو شک کا فائدہ دیتے ہوئے بری کرتے ہوئے قرار دیا گیا کہ لیبارٹری رپورٹ میں بلا وجہ تاخیر اور رجسٹر 19 میں اندراج نہیں ہے کہ پارسل کریئر کو کب نموناجات پارسل حوالہ کیا گیا تھا اور جب پارسل کریئر بطور گواہ پیش ہوا تو اس نے عدالت میں نموناجات پارسل کے وصول کرنے کی تاریخ نہیں بتائی جبکہ محرر پیش نہیں ہوا
گواہان کے بیانات میں واضح فرق وشکوک کا فائدہ ملزم کا حق ہے
JUDGMENT SHEET
PESHAWAR HIGH COURT, PESHAWAR (Judicial Department)
Cr. A No. 587-P of 2024
Asad Ali Vs The State
JUDGMENT
Date of hearing: 03.06.2025
***
SAHIBZADA ASADULLAH, J. Through this single judgment, we shall also decide the connected Cr.A No. 974-P/2024 titled "The State vs Syed Mehdi Shah & another" as both the appeals are arising out of one and same judgment dated 26.06.2024 rendered by the learned Additional Sessions Judge Judge Special Court CNSA, Upper Kurram delivered in case FIR No. 236 dated 13.11.2022 under sections 9-D/17 Control of Narcotics Substances Act ("the Act") of police station Upper Kurram, District Kurram, whereby the respondents /accused Syed Mehdi Shah and Ishfaq Hussain were acquitted of the charges leveled against them, while appellant Asad Ali son of Muhammad Ali was sentenced as follows: -convicted and
U/s 9-(d) CNSA to imprisonment for life with fine of Rs.500,000/- (rupees five lac) or in default whereof to further suffer simple imprisonment for six (06) months. Benefit of section 382-B Cr.P.C has been extended in favour of the appellant.
2. Facts forming the background of the instant case are that on 13.11.2022, complainant Abid Hussain SI/Incharge NET alongwith other police officials during nakabandi stopped a Ghwagye motorcar bearing registration No. 3314-Kurram coming from Parachinar for the purpose of checking; that the driver disclosed his name as Asad Ali son of Muhammad Ali whereas, the front seater as Syed Mehdi Shah son of Syed Asghar Jan; that search of the motorcar led to the recovery of 24 packets chars garda each weighing 1200/1200 grams total 28800 grams from its boot; that the complainant separated 10/10 grams from each packet as test samples for chemical analysis whereas, the remaining chars was packed and sealed in another parcel hence, the present FIR. It is pertinent to mention that during interrogation, the accused Asad Ali and Syed Mehdi Shah disclosed the name of co-accused Ishfaq Hussain who was charged under section 17 CNSA.
3. After completion of investigation, complete challan was put in court. Provisions of 265-C Cr.PC were complied with and the appellant alongwith acquitted co-accused were charge sheeted to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced and examined as many as 07 witnesses. After closure of prosecution evidence, statement of appellant alongwith acquitted co-accused was recorded under section 342 Cr.PC, wherein they professed innocence, however, neither they wished to be examined on Oath as required under section 340 (2) Cr.PC, nor wanted to produce evidence in defence. The learned trial Court, after full-fledged trial acquitted the accused Syed Mehdi Shah and Ishfaq Hussain while convicted and sentenced the appellant vide the impugned judgment hence, this appeal.
4. Arguments heard and available record scanned through.
5. It was on 13.11.2022, when the complainant received information regarding the trafficking of narcotics from Parachinar, a barricade was laid and the vehicle on its arrival, was signaled to stop. The driver disclosed his name as Asad Ali son of Muhammad Ali, whereas the front seater as Syed Mehdi Shah son of Asghar Jan, residents of Shalozan. They were alighted from the motorcar and from their personal search, nothing incriminating was recovered, however, on search of the motorcar, from its boot, from the secret cavities, 24 packets of chars were recovered, the same on weighment came out to be 28,800 grams. Test samples were separated and as such, the case property was sealed in different parcels. During investigation, it came on record that one Ishfaq Hussain, was privy to the accused and as such, in his respect, section 17 CNSA was added. The accused were arrested who were committed for trial and on conclusion of the trial, the accused on the front seat i.e., Syed Mehdi Shah, as well as the accused Ishfaq Hussain, were acquitted of the charge, whereas the appellant was convicted and sentenced. This Court is to see as to whether the learned trial Court was justified to reach to the conclusion and, that what evidence found favor with the learned Judge which turned to be the basis for the conviction of the appellant and, for the acquittal of the acquitted co-accused. As under the Act, stringent punishment is provided, so when the punishment is stringent, then the prosecution is burdened with extra liability to collect independent evidence in support of its claim, so this Court is to see as to whether the prosecution succeeded in connecting the appellant with the commission of the offence and, that whether the learned trial Court succeeded in appreciating the evidence on file.
6. The points for determination before this Court are as to whether the incident occurred in the mode, manner and at the stated time; as to whether the safe custody of the recovered contraband and the safe transmission of the test samples to the office of the chemical examiner is proved and, as to whether the prosecution succeeded in bringing home guilt against the appellant.
7. In order to appreciate the manner in which the incident occurred, this Court deems it essential to go through the relevant record and, to reconsider the statements of the witnesses to ascertain as to whether the incident occurred at the stated time and, that whether it was the appellant who was driving the vehicle and, who had the conscious knowledge of the presence of narcotics in the secret cavities. The complainant was examined as PW-2, who disclosed the circumstances in which the information was received, the vehicle reached to the spot, the same was signaled to stop and, on search of the vehicle, the narcotics were recovered. The marginal witness was examined as PW-3, he supported the report of the complainant and, he also explained the circumstances in which the accused were alighted, the motorcar was searched and the recoveries were made from the same. The witnesses were cross-examined on the essential aspects of the case with the sole purpose to extract something favorable to the appellant, so this Court is to see as to whether the defence succeeded in creating dents in the case of the prosecution and, that whether the defence could bring on record malafide against the complainant, which turned to be the source of involvement of the appellant in the instant case. This Court is to see as to whether the prosecution succeeded in establishing its claim and, that the prosecution succeeded to convince regarding the safe custody of the recovered contraband and, the safe transmission of the test samples to the office of the chemical. examiner. The complainant after doing the needful, sent murasila to the Police Station, but he by himself did not shift the case property, the vehicle and the accused to the Police Station rather the same were taken by the Investigating officer. This Court is to see as to whether relevant entries were made in the relevant columns of register No. 19 and, that who deposited the case property and, that whose name finds mention in the relevant columns. This Court is to see as to whether the relevant entries regarding the dispatch of the test samples find mention in the relevant column of the register and, that whether the entries in respect of the date of its dispatch are mentioned in the same. It is pertinent to mention that when the extract collected from the register No. 19, was taken into consideration, though in the column of deposit, the name of the relevant official is mentioned, but its last column is blank and, is silent that to whom the test samples were handed over, when and at what time, as the most relevant witness, who could tell regarding the absence of entries in the relevant column of the register, was Moharrir of the Police Station, but he was not produced for the reasons best known to the prosecution. It is pertinent to mention that the test samples were received to the laboratory on 17.11.2022 whereas, the occurrence took place on 13.11.2022, but the prospection could not tell that why such a delay was caused and, that why no witness was examined in that respect, who could explain the delay. It is pertinent to mention that the test samples were handed over to the focal person for its dispatch to the office of the chemical examiner by Moharrar of the police station, but the Moharrar was not examined and his non examination is a circumstance, which has disturbed the judicial mind of this court and, which has distributed the equilibrium of the case of the prosecution. As he was the more relevant witness to tell that who brought the case property to the police station and, that to whom the test samples were handed over and, on which date. The Apex Court has dealt with the circumstances in case titled "Sarfraz Ahmed vs The State" (2024) SCMR 1571) which reads as follows: -
"In order to prove the safe custody of the parcels of the contraband, Moharrar (Abdul Qayyum) of PS Kalat has not been produced at the trial by the prosecution. In the cases of "Said Wazir v. The State", "Muhammad Shoaib v. The State" and "Ishaq v. The State" it has been held that due to non-appearance of the Moharrar at the trial, the safe custody of the parcel of the contraband as well as the sample parcel has not been established prosecution. by the
8. There is uncertainty regarding the person, who made entries in the relevant columns of register 19 and, also regarding the person who handed over test samples to the police official, who took the same to the office of the chemical examiner. When on one hand, the test samples were received in the laboratory after long four days whereas, on the other, relevant entries were not made in register 19, so neither the complainant, nor the investigating officer could tell that when the test samples were taken out of the police station. This uncertainty cannot be easily ignored, as it would determine the involvement of the appellant in the instant case and it would determine the credibility and truthfulness of the complainant and of the investigating officer. In sending test samples to the office of the chemical examiner is not explained and, when the focal person could not convince that on which date, he exactly received the test samples, so in our understanding the prosecution failed to prove the safe transmission of test samples to the office of the chemical examiner. As the prosecution case is hinging upon the recovery of the narcotics from the motorcar and, upon the positive laboratory report, once the credibility of the collected samples could not be proved, then the positive laboratory would hardly be a circumstance to be taken into consideration, that too for awarding the awarded sentence. The Apex Court has dealt with the circumstances in case titled "Abdul Haq vs the State" (2025 SCMR 751) which reads as follows: -
"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 safe transmission of the sample parcels to the concerned laboratory. This chain has to be established by the prosecution and if any link is missing in such like offences the benefit must have been extended to the accused."
9. This court cannot close its eyes to the fact that neither the scribe was examined, nor the Moharrar, so this court is to assess that whether the case property was timely shifted to the police station and, once the scribe of the register 19 was not produced, then it is hard for the witnesses to convince that it was the complainant, who brought the case property to the police station and, that the name of the relevant police official is mentioned in the relevant column. When the author of the document was not examined, then this document by itself has lost its utility and, once this court comes to the conclusion that the entries made in register 19 could not be proved, then this court is confident in holding that the same has damaged the safe custody of the recovered contraband from spot to the police station. As under the Act, it is the conscious knowledge and conscious possession of an accused, which would determine his connectivity with the commission of the offence, and once the prosecution fails to establish his knowledge and, once the prosecution fails to connect him with the recovered contraband, then the presence of the accused in the motorcar would hardly be a circumstance to be taken into consideration, for holding him responsible for the commission of the offence. Mere recoveries from the secret cavities of the motorcar would hardly be a circumstance to tell regarding the involvement of the appellant, rather the prosecution was under the obligation to prove on record the safe custody of the recovered contraband and, the safe transmission of the same to the office of the chemical examiner. As in this particular case, neither the safe shifting of narcotics to the police station is proved, nor the safe transmission of the test samples to the office of the chemical examiner was established, so in such an eventuality, this court is not inclined to take the same into consideration and once, the safe transmission is disbelieved, then the prosecution has nothing to connect the appellant with the commission of the offence.
10. The witnesses remained inconsistent on material aspects of the case and, as some of the essential witnesses were not produced, so an inference can be drawn that those witnesses were not supporting the case of the prosecution. As under the Act the prosecution is to collet independent evidence, but as the prosecution failed to collect the desired evidence, so the same must be taken into consideration and, while considering the same, this court is confident in holding that the appellant Asad Ali succeeded in making out a case for the indulgence of this court. resultantly, the instant appeal No. 587-P/2024 is allowed and the appellant Asad Ali is acquitted of the charge, he shall be released forthwith, if not required to be detained in any other criminal case.
11. Now diverting to Cr.A No.974-P/2024 titled "The State vs Syed Mehdi Shah & another" filed by the State against the acquittal of co-accused Syed Mehdi Shah and Ishfaq Hussain is concerned, true that at the time of incident, accused Syed Mehdi Shah was found present in the motorcar, but equally true that his mere presence in the motorcar, by no stretch of imagination would hold him liable for the narcotics, in the vehicle and, would hardly tell that he had the knowledge of its presence in the said car. The learned AAG wanted to convince that mere presence of respondent/accused Syed Mehdi Shah by itself is sufficient to hold him responsible for the commission of the offence. We are not impressed with what the worthy AAG submitted, as the duty of the prosecution will never end by mere sighting the accused in the front seat of the motorcar, rather the prosecution must travel a long way to unearth, that wherefrom the respondent/accused accompanied the appellant Asad Ali and, this is for the prosecution to trace as to whether both the accused purchased the narcotics from a single source and, that right from its purchase, till the time of arrest, he was with the appellant and, in that eventuality this Court would hold the front seater responsible as well, but the complainant as well as the investigation officer could not trace out his association with appellant Asad Ali, from the place where the narcotic was either purchased or loaded in the motorcar. So far as accused Ishfaq Hussain is concerned, he was implicated in the case and, in his respect section 17 of the Act was added, but as the investigating officer could not collect any evidence regarding his involvement in the instant case, and as nothing was brought on record which would convince that he was privy to the driver and, to the front seater, so those were the circumstances, which were considered by the learned trial court for his acquittal. The judgment of the learned trial court to the extent of acquittal of accused Syed Mehdi Shah and Ishfaq Hussain is well reasoned and the learned trial Judge has competently appreciated the evidence on file and as such the same do not call for interference. The instant criminal appeal No.
974-P/2024 titled "The State vs Syed Mehdi Shah & another" is hereby dismissed.
Announced 03.06.2025
