02/01/2026
IN THE LAHORE HIGH COURT, LAHORE
Crl. Appeal No. 43161 of 2023
(Ashfaq alias Saleem vs. The State, etc.)
JUDGMENT, Date of hearing: 10-12-2025
MUHAMMAD TARIO NADEEM. J.:- This appeal is directed against the judgment dated 27-04-2023, passed by the court of learned Additional Sessions Judge/Special Judge, Control of Narcotic Substances Act, 1997, Jaranwala, in case F.I.R No.602 dated 09-11-2022, registered at Police Station Rodala Road, Jaranwala, under Section 9(1)3(c) of the Control of Narcotic Substances Act, 199, whereby at the conclusion of trial, the trial court proceeded to convict the appellant and sentenced him as under:-
Under section 9(1)3(c) of the Control of Narcotic Substances Act, 1997: 09 years R.I. with fine of Rs.80,000/-; in default thereof to further undergo S.I. for 05 months and 15 days. The benefit of section 382-B Cr.P.C. was also extended to the convict.
2. The prosecution story as given in the impugned judgment of the trial court reads as under:-
"2. Brief facts of the case according to the FIR are that on 09.11.2022 complainant(Mohsin Ali 1322F/ASI) alongwith Mohsin Ali Bhatti ASI, Ghulam Abbas 3655/HC, Umer Hayat 1503/C, Nadeem Aslam 1275/C, Mehboob Zafar 4397/C and driver Saqlain Abbas 4231/C were present at Mian Road Adda Arakana and on spy information, the complainant alongwith other police officials reached at main road Sarwarwali Morr, where accused Ashfaq alias Saleem S/o Liaqat Ali was apprehended who was trying to escape. That upon personal search from his possession two packets of Charas, on weighing one packet containing 1100 grams Cahras (P1) and second packet containing 1080 grams Charas (P2), total (2180) grams Charas, were got recovered. That 55 grams Charas was separated from the first and 54 grams Charas was separated from second packet for specimen and sealed parcels were prepared. On further search of the accused, Rs.1530/- (P3) sale amount, alongwith electric scale (P4) were also recovered. Hence, this case.
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3. After completion of the investigation, a report under Section 173 of the Code of Criminal Procedure, 1898, was submitted before the trial court. Upon fulfilment of all requisite pre-trial legal formalities, charge was framed against the appellant, to which he pleaded not guilty and claimed trial. In order to substantiate its case, the prosecution examined eight witnesses, namely: Mehboob Zafar 4397/C (PW-1), who transmitted the complaint to the police station; Muhammad Asif Iqbal 6790/HC (PW-2), the moharrar; Ramzan, ASI (PW-3), In-charge Tehsil Malkhana Jaranawala; Mohsin Ali, ASI 1322-F (PW-4), the complainant; Saad Zaman, SI (PW-5), the investigating officer; Mohsin Ali Bhatti, ASI (PW-6), a recovery witness; Ghulam Abbas 3655/C (PW-7), also a recovery witness; and Muhammad Asif 3828/HC (PW-8), the moharrar. After producing the report (Exh.PF) issued by the Punjab Forensic Science Agency, Lahore, the prosecution closed its evidence. Thereafter, the appellant was examined under Section 342 Cr.P.С., wherein he denied the allegations and pleaded his innocence. Upon completion of the appellant's statement and after hearing the arguments of the parties, the trial court passed the impugned judgment, whereby the appellant was convicted and sentenced as earlier mentioned.
4. We have heard the arguments advanced by the learned counsel for the appellant as well as the learned Deputy District Public Prosecutor and have minutely perused the record.
5. Upon careful examination of the record, it is evident that the prosecution failed to establish, in sequence, the safe custody of the case property and sample parcels at the police station, the secure transmission of the sample parcels to the Punjab Forensic Science Agency, Lahore, and the proper deposit of the remaining case property in the Saddar Malkhana.
It has been noticed that Ramzan, ASI, Incharge Tehsil Malkhana, Jaranawala (PW.3) during his examination-in-chief deposed that on 24-12-2022, he received sealed parcels of bulk of case property for keeping the same in safe custody of Malkhana through Mohsin Ali, ASI, complainant (PW.4) but during cross-examination when comparison was made by the trial court it was found that according to the statement under section 161 Cr.P.C. of said witness only one parcel was mentioned. Relevant lines of his testimony are reproduced below for ready reference:-
"...I recorded in my statement u/s 161 Cr.P.C. that there were two parcels. (Comparison is made where two parcels are not mentioned). According to statement w/s 161 Cr.P.C. one parcel was handed over to me"
Whereas Mohsin Ali, ASI, complainant (PW.4) during his cross-examination although admitted that he got recorded his statement under section 161 Cr.P.C. twice on 24-12-2022 but in his statement under section 161 Cr.P.C. the aspect of sample parcel was not found. Relevant lines of his testimony reads as under:-
"...I got recorded my statement u/s 161 Cr.P.C. twice on 24.12.2022. I got recorded my statement u/s 161 Cr.P.C. regarding sample parcels and the other one regarding remaining bulk case property separately. (At this stage, learned defence counsel requested that at the time of receiving sample parcels no statement w/s 161 Cr.P.C. is available and learned ADPP perused the file only one statement is available on record dated 24.12.2022."
We have further noted that according to the testimony of Mohsin Ali, ASI, complainant (PW.4) on 17-11-2022, he obtained the sample parcels from the moharrar of the police station namely Muhammad Asif 3828/HC (PW.😎 and deposited the same in the office of the Punjab Forensic Science Agency, Lahore intact. He (PW.4) further stated that on 24-12-2022, he received the remaining bulk case property from the moharrar of the police station namely Muhammad Asif Iqbal, 6790/HC (PW.2) and deposited the same at Saddar Malkhana Jaranwala, intact.
Contrary to above, Muhammad Asif Iqbal 6790/HC (PW.2) deposed otherwise that he handed over the charge of his seat to Muhammad Asif 3828/HC.
Things do not stop here Saad Zaman, SI/Investigating Officer (PW.5) has failed to record statement under section 161 Cr.P.C. of Mohsin Ali, ASI, complainant (PW.4) relating to submission of sealed parcels in the office of the Punjab Forensic Science Agency, Lahore rather the statement under section 161 Cr.P.C. of Mohsin Ali, ASI, complainant (PW.4) was recorded by the Investigating Officer on 24-12-2022 with the delay of one month and eleven days. Relevant lines of his testimony reads as under:-
"...Mohsin Ali Wattoo ASI did not get record his statement u/s 161 Cr.P.C. regarding submission sealed sample parcels in the office of PFSA, Lahore separately. PW volunteered that I recorded the statement of Mohsin Ali Wattoo ASI regarding submission of sealed parcels in the office of PFSA, Lahore and remaining bulk case property submission in the Saddar Maalkhana Jaranawala jointly. It is correct that according to the statement of Mohsin Ali Wattoo ASI dated 24.12.2022 he received sample parcels on 17.11.2022 from Moharar Muhammad Asif 3828/HC for onward transmission to the office of PFSA, Lahore. It is correct that I conducted the proceedings after 12.11.2022 first time on 24.12.2022 (with the delay of 01 month & 11 days)..."
What to say about the testimony of Saad Zaman, SI/Investigating Officer (PW.5), who during his cross-examination admitted that according to the statement of Muhammad Asif 3828/HC Moharrar (PW.😎, it was not mentioned regarding the date on which he received the entire case property from Muhammad Asif Iqbal, 6790/HC (PW.2). Relevant lines of his cross-examination reproduced infra:-
"...It is correct that according to the statement of Muhammad Asif 3828/HC Moharar it is not mentioned regarding the date on which he received the entire property from Muhammad Asif Iqbal 6790/HC Moharar. It is correct hat according to the statement of Muhammad Asif 3828/HC he did not got record in his statement u/s 161 Cr.P.C. that which case property was received from Asif Iqbal 6790/HC and handed over to Mohsin Ali Wattoo ASI and was marked A1, B2, A & B. it is correct that I did not record the statement of Muhammad Asif 3828/HC before 24.12.2022. According to the statement of Mohsin Ali Watto ASI dated 24.12.2022 Muhammad Asif 3828/HC handed over sample parcel to him not parcels..."
For disbelieving a witness, it is not necessary that there should be numerous infirmities, if there is one which would impeach the credibility of witness that can make the entire statement doubtful.
In the present case, the statement under section 161 Cr.P.C. of Mohsin Ali 1322-F, ASI, complainant (PW.4) was recorded with considerable and unexplained delay, which strikes at the very root of the prosecution's version. In narcotics cases, where the prosecution is required to establish the chain of custody with utmost precision, any delay in recording statements under Section 161 Cr.P.C. creates serious doubt regarding the credibility and truthfulness of the witnesses. The superior Courts have repeatedly held that when a witness's statement is not recorded at the earliest opportunity, the possibility of deliberation, consultation or subsequent improvements cannot be ruled out. The delayed statement of the prosecution witness in this case, therefore, appear to be an afterthought and materially affect the transparency of the alleged recovery proceedings. Such a lapse in investigation constitutes a substantial flaw, generating reasonable doubt in the prosecution's narrative, and it is a settled principle of criminal jurisprudence that the benefit of every such doubt must go to the accused. Reliance is placed upon the case laws titled as "Abdul Khaliq vs. The State" (1996 SCMR 1553), "Muhammad Khan vs. Maula Bakhsh and another" (1998 SCMR 570), "Ghulam Qadir and 2 others vs. The State" (2008 SCMR 1221), "Muhammad Asif vs. The State" (2017 SCMR 486). In Muhammad Asif's case, the Supreme Court of Pakistan has held as under:-
".15... Again there is another doubtful aspect of the case because Nazar Hussain (PW-9), the father of the deceased who according to the FIR was stated to be guarding the dead body, on arrival of the local police to the s pot, however, in the very examination in chief at page 20 of the paper book he has squarely stated that he joined the investigation after one month and one day after the occurrence. There is a long line of authorities/precedents of this court and the High Courts that even one or two days unexplained delay in recording the statement of eye-witnesses would be fatal and testimony of such witnesses cannot be safely relied upon...
In this regard reference can be made to the cases of "Khial Muhammad vs. The State" (2024 SCMR 1490) and "Fateh Khan vs. "The State and others" (2025 SCMR 1408). The view held in Fateh's Khan case/reference is reproduced below:-
"....23. It transpires that despite meeting with the police officers and investigating officer at the place of occurrence in the noon of 26th February, 2007 (i.e. the day of occurrence), the statements of the witnesses Tanveer Aslam and Muhammad Said Akhter under section 161 of the Criminal Procedure Code (Cr.PC) were not promptly recorded at the place of occurrence. The statement of Tanveer Aslam udner section 161, Cr.P.C. was recorded in the evening of the day of occurrence at 7:30 pm and the statement of Muhammad Sajid Akhter under section 161, Cr.P.C. was recorded in the night of the occurrence at about 8:00 pm. Neither both witnesses nor the Investigating Officer furnished any explanation for the delay in recording their 161, Cr.P.C. statements.
24. In view of above and keeping in view the previous enmity and blood feud between the parties possibility of false implication of large number of accused by the complainant after consultation and deliberation with PWs Tanveer Aslam and Muhammad Said Akhter, being relatives inter-se and being relatives of all the cannot deceased. consideration... be ruled out of We have further noted that the statements of supra-mentioned key witnesses were not recorded by the Investigating Officer under Section 161 Cr.P.C., despite the fact that doing so was a mandatory requirement of law. Such a glaring omission amounts to a serious defect in the investigation, which not only casts doubt upon the fairness and transparency of the investigative process but also materially undermines the credibility of the witnesses who appeared for the first time before the Court without their earlier versions being documented. The consistent view of the superior Courts is that when a material witness's statement is not recorded during investigation, his testimony is to be evaluated with extreme caution, as the possibility of improvements, afterthoughts or deliberate superfluities cannot be ruled out. This defect, therefore, creates a reasonable doubt in the prosecution case. Reliance is placed upon the case law titled as "Zakir Ali vs. The State" (2025 SCMR 1644) wherein the Supreme Court of Pakistan held as under:-
"....5. A careful analysis of the testimonies of the prosecution's witnesses, especially, Attiq ur Rehman SHO (PW-2)/the Seizing Officer, Muhammad Ali Moharrir (PW.3) and Nadar Khan ASI (PW.5)/the Investigating Officer reveal material gaps and contradictions regarding the safe custody and transmission of the recovered substance from the spot to the Police Station and then samples to the FSL. It is noteworthy that police official Hassan Ali, who allegedly conveyed the murasila and case property to the Police Station on the basis of which FIR was registered, was neither cited nor examined as witness. The non-production of Hassan Ali, is a serious blow the prosecution's case as in absence of his statement, there is no other evidence to prove safe transmission of the cases property and samples from the spot to the Police Station. The Seizing Officer/complainant did not mention in his statement or in his cross-examination the specific act of sending the narcotics to the Police Station or to the FSL, Muhammad Ali Moharrir (PW.3), admitted that the parcels were handed to him by the Investigating Officer without the issuance of any receipt and did not produce Register No.19 on record. Nadar Khan ASI/I.Ο., failed to mention the name of the person through whom the samples were sent to the FSL, although the FSL report mentions his own name. He also admitted not recording the statements of key persons under Section 161 Cr.P.C., (bold and underline for emphasis) and failed to exhibit any documentary trail evidencing a secure chain of custody of the samples from the spot to the FSL. The law by now is well-settled that in narcotics cases, due to the severity of punishment involved, the prosecution must establish an unbroken, secure, and reliable chain of custody of the recovered contraband from the point of seizure to its receipt at the forensic laboratory. Any lacuna or discrepancy in this regard renders the entire process suspect and the report of the chemical examiner inadmissible or at the very least unreliable. The importance of maintaining a meticulously documented chain of custody has been emphasized in several authoritative pronouncements of this court, particularly in cases of "Javed Iqbal vs. The State" (2023 SCMR 139). "Qaiser Khan v. The State" (2021 SCMR 363), "Mst. Sakina Ramzan v. The State" (2021 SCMR 451), "Zubair Khan v. The State" (2021 SCMR 492), "Asif Ali and another v. The State" (2024 SCMR 1408). In Javed Iqbal's case (supra), this Court held that "it is the 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 be extended to the accused." The sanctity of the chain of custody serves as the linchpin of evidentiary reliability in narcotics prosecutions. Where the prosecution fails to conclusively establish the movement and security of narcotic samples at every stage, from the point of recovery to chemical analysis, the benefit of such material lapses must be extended to the accused, in line with the fundamental principle that in case of doubt, the benefit must to the accused....'
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In this regard, reliance is also placed upon the judgment of the Supreme Court of Pakistan in case titled as "Muhammad Abras vs. The State" (2025 SCMR 1145). The view held in the above case/referenced is reproduced infra:-
"...6. Another significant feature of the case is the failure 10 record the statement of the aforementioned witness under section 161 of the Cr.P.C., despite the witness being stationed at the same police station. Section 265-C of the Cr.P.C. mandates that the trial judge must provide the accused with statements and documents specified therein, including witness statements recorded under Sections 161 and 164 of the Cr.P.C. In the instant case, the witness statement under section 161 of the Cr.P.C. was not documented. The record indicates that Haroon-ur-Rasheed purportedly sustained injuries at the time of occurrence eon 03.06.2010, however, he failed to present himself to the police, nor was he summoned to provide his statement, until he appeared before the trial judge for the first time on 02.11.2020, six months after the incident. We concur with the learned Prosecutor General for the State that the mere failure to examine a witness by the police does not preclude the admissibility of that individual's statement as evidence. Nevertheless, the primary consideration for the courts is whether the lack of examination under section 161 Cr.P.C has resulted in any prejudice to the accused. In this case, Haroon-ur-Rasheed, the prosecution's star witness and an injured party, did not have his statement recorded under section 161 Cr.P.C. and his initial appearance before the court on 02.11.2020 undoubtedly astonished the appellant. Prolonged silence regarding the issue is adequate to invalidate the entire evidence, as his behaviour was exceedingly irregular. The appellant was unaware of the specific point and purpose for which this witness was listed in the charge-sheet, and he was taken by surprise when the witness was examined as an eye-witness in court. Although it is obligatory to document a witness's statement during the investigation when the witness is available and referenced in the charge-sheet, the prosecution must elucidate whey the statement was not recorded and the specific points on which the witness was to be examined, particularly given that the witness is a crucial eye-witness to the incident. Given the unusual circumstances of the case, the Trial court had no alternative but to regard the witness's account as absolute truth, as it was not challenged by his prior statement. This has undoubtedly resulted in prejudice against the appellant, who was unable to confront the witness regarding the omissions and improvements made during his testimony in court."
Upon being confronted with the aforesaid shortcomings in the prosecution's case, the learned Deputy District Public Prosecutor is unable to offer any satisfactory or cogent explanation to the Court. Consequently, these contradictions may reasonably be viewed as rendering the prosecution's version doubtful and lacking in reliability. We find that the prosecution has failed to establish safe custody of case property as well as sample parcels from place of occurrence to police station and thereafter safely transmission of sample parcel from police station to Punjab Forensic Science Agency. It is trite that the prosecution is obliged to establish that the chain of custody of the case property as well as the samples separated therefrom should remain unbroken, unsuspicious, indubitable, safe and secure and any break in the chain of custody or lapse in the control of possession of the sample, will cast doubt on the safe custody and safe transmission of the sample, it will impair and vitiate the conclusiveness and reliability of the Report of the Government Analyst but in the instant case, the safe transmission of the parcels said to contain "charas" becomes doubtful. Reliance is placed on the case laws titled as "Asif Ali and another vs. The State through Prosecutor General Punjab" (2024 SCMR 1408) and "Farman Ali and another vs. The State" (2025 SCMR 1730). In Farman's case, the Supreme Court of Pakistan wherein it was observed as under:-
"6. It has been time and again held by this Court that in order to prove a charge under Section 9(c) of the Control of Narcotic Substances Act, 1997, the prosecution has to establish a safe custody of parcel at each and every step starting from the point of recovery till the safe transmission and receipt of the parcels at the Forensic Science Laboratory. Any missing links in this chain is fatal to the prosecution case, the benefit of which has to be extended to the accused. The prosecution in such cases is bounded with the responsibility of producing the witnesses responsible for transmitting the samples to the Forensic Science Laboratory. Reference in this context may be made to case titled 'Abdul Haq v. The State (2025 SCMR 751) wherein it was observed:
"The chain of safe transmission of case property i.e. parcels each containing sample of ten grams o***m and the parcel containing remaining quantity of o***m from the spot to Police Station and thereafter to the FSL could not be established by the prosecution, which made the report of the chemical examiner unsafe and unreliable for justifying conviction of the accused the prosecution had to establish that the chain of custody was safe, secure and indisputable in order to place reliance on the report of the chemical examiner, and in this case the prosecution has failed to establish such chain of safe custody and transmission of samples of the narcotic from the place of seizure of Police Station and thereafter to the chemical examiner. The sanctity of the chain of transmission stands as the cornerstone for maintaining the integrity and evidentiary credibility, particularly in narcotics cases, where the law imposes severe and inexorable punishments. Any rupture or inconsistency in the chain of custody strikes at the very root of the prosecution's case, rendering the evidence susceptible to doubt and challenge. It is an established principle that the prosecution bears the burden of ensuring on unbroken, meticulously documented chain of custody, so as to preclude any possibility of tampering, substitution, or contamination. If the prosecution fails to establish an unbroken chain of transmission of the narcotic sample and any breakage or discrepancy is observed in the custody of the recovered substance, the "benefit of such lapse must necessarily extended to the accused. It is a well-settled principle of criminal jurisprudence that when the prosecution's evidence is tainted with doubt, the scales of justice must tilt in favour of the accused. Any failure to prove the safe and continuous handling of the narcotic sample from seizure to forensic analysis not only weakens the prosecution's case but also vitiates the reliability of the evidence, entitling the accused to the benefit of doubt....In this regard, reliance is placed upon the judgments rendered by this Court in cases titled "Qamar Khan v. The State" reported as 2021 SCMR 363, "Mst. Sakina Ramzan vs. The State" reported as 2021 SCMR 451, "Zubair Khan v. The State" reported as 2021 SCM?R? 492 and "Asif Ali and another v. The State" reported as 2024 SCMR 1408."
Further reference may reference may be made to the case titled 'Javed Iqbal v. The State' (2023 SCMR 139) wherein it was held that: "4. We have heard the learned counsel for the appellant, learned Additional A.G. KP perused the record and observed that in this case, the recovery was effected on 18.12.2013 and the sample parcels were received in the office of chemical examiner on 20.12.2013 by one FC No. 1007 but the said constable was never produced before the Court. Even the Moharrar of the Malkhana was also not produced even to say that he kept the sample parcels in the Malkhana in safe custody from 1.12.2023 to 20.12.2013...It is to be noted that in the cases of 9(c) of CNSA, 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 if any link is missing in such like offences the benefit must have been extended to the accused. Reliance in this behalf can be made upon the cases of Qaiser Khan v. The State through Advocate-General Khyber Pakhtunkhwa, Peshawar (2021 SCMR 363), Mst. Razia Sultana v. the Stae and another (2019 SCMR 1300), the State through Regiional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), Ikramullah and others v. The State (2015 SCMR 1002) and Amjad Ali v. The State (2012 SCMR 577) wherein it was held that in a case containing the above mentioned defects on the part of the prosecution it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond any reasonable doubt. So the prosecution has failed to prove the case against the petitioner and his conviction is not sustainable in view of the above mentioned defects."
6. The Control of Narcotic Substances Act, 1997, provides stringent penalty for the criminal who indulges in the business of narcotics and evidence of high standard is required to bring home the charge against the accused up to its hilt but such evidence is certainly lacking in this case, which makes the prosecution's case highly doubtful. The accused is not obliged to establish number of circumstances creating doubts but even single circumstance, creating a reasonable doubt in the prudent mind is sufficient to extend its benefit to the accused, whereas, the instant case is replete with the circumstances which have created serious doubts about the prosecution case against the appellant. Reliance is placed upon the following case laws titled as "Sarfraz Ahmad vs. The State" (2024 SCMR 1571) and "Muhammad Iqbal vs. The State through P.G.Sindh" (2025 SCMR 704) & "Jeehand vs. The State through Prosecutor General Balochistan" (2025 SCMR 923).
7. As a corollary of above discussion, we are of the view that the prosecution evidence is highly deficient and the conviction recorded by the trial court, in the circumstances, is not sustainable in the eye of law. We, thus, while allowing the appeal, set aside the impugned judgment and acquit the appellant from the charge against him. He is in jail; he be released forthwith if not required in any other case. The case property i.e. charas shall be destroyed in accordance with law, as observed by the trial court, in the impugned judgment.
(Farooq Haider) Judge
(Muhammad Tariq Nadeem) Judge
