Attock LAW Associate

Attock LAW Associate

This page for law education

Operating as usual

19/05/2022

*اگر جائے وقوعہ سے، کوئی empty برآمد نہ ہو، تو ملزم سے آلہ قتل کی کوئی اہمیت نہ ہے۔*
. . *(2019 YLR 1008).*

*تفتیشی کے لئے، موبائل کمپنی سے، یہ شہادت اکٹھی کرنا لازم ہے، کہ برآمدکردہ موبائل کی سم، کس کے نام ہے۔*
. *(2013 YLR 2800).*

*اگر برآمدکردہ نمبرپلیٹس اور کار کی چابیاں، کمپیوٹرائزڈ نہ ہوں، تو ایسی برآمدگی کی کوئی حیثیت نہیں، کیونکہ ایسی چیزیں بازار سے بآسانی دستیاب ہیں۔*
. . . *(2013 YLR 2800).*

*ڈکیتی شدہ کار کی، نہ تو گواہان سے شناخت کروائی گئی تھی، اور نہ ہی بوقت شہادت پیش عدالت کی گئی تھی اور نہ ہی دوران تفتیش کار کی ملکیت بارے کوئی دستاویز قبضہ میں لی گئی تھی۔*
. *(2011 YLR 2632).*

*اگر جائے برآمدگی تفتیش کے تھانہ کی حدود سے باہر ہو تو خلاف قانون ہے۔*
. . *(2011 SCMR 323).*

*خون آلود جوتوں اور کپڑوں کی برآمدگی کی صورت میں، بلڈ گروپنگ کروانا لازم ہے۔*
. . *(2008 YLR 1282).*

13/05/2022

"If two separate decrees had been passed in two consolidated suits between the same parties, even then one appeal would have been sufficient".

Section 96 and Order 41, rule 1, C.P.C., and it was held "an appeal against two decrees based on one consolidated judgment.

One appeal is permissible against such decree".

Plea of not filing appeal against another decree was a mere technicality, which would not ordinarily prevent Courts from doing substantial justice between the parties-- Un-appealed decree in such circumstances would not operate as res judicata.

Two suits relating to same subject‑matter were consolidated and tried together on premises of consolidated issues and decided by one common judgment, wherein two separate decrees were prepared, but appeal was filed against one decree.

Appellate Court dismissed the appeal on the ground that one appeal against judgment and decree of Trial Court was not maintainable.

Appellate Court had dismissed the appeal on hyper-technical ground and had not touched merits of case.

High Court accepted the revision petition, and set aside the impugned judgment and decree, and remanded the case to Appellate Court for its fresh decision in accordance with law within specified time.

2001 Y L R 2773
[Lahore]
Before Nazir Ahmad Siddiqui, J

ALLAH WASAYA and 4 others‑‑‑Petitioner
Versus
FAIZ BAKHSH and another‑‑‑Respondents

Civil Revision No. 677‑D of 1988, decided on 29th June, 2001.

Civil Procedure Code (V of 1908)‑‑‑

Ss. 11, 96 & O.XLI, R.1‑‑‑ Appeal against one decree arising out of consolidated judgment in two cases‑‑‑Effect.

Two suits relating to same subject‑matter were consolidated and tried together on premises of consolidated issues and decided by one common judgment, wherein two separate decrees were prepared, but appeal was filed against one decree.

Appellate Court dismissed the appeal on the ground that one appeal against judgment and decree of Trial Court was not maintainable‑‑Validity.

Plea of not filing appeal against another decree was a mere technicality, which would not ordinarily prevent Courts from doing substantial justice between the parties—Un-appealed decree in such circumstances would not operate as res judicata.

Appellate Court had dismissed the appeal on hyper-technical ground and had not touched merits of case.

High Court accepted the revision petition, and set aside the impugned judgment and decree, and remanded the case to Appellate Court for its fresh decision in accordance with law within specified time.

Abdullah v. Faqir Ullah and others 1981 SCMR 585; Manzoor Ahmad v. Additional Judge‑III, Rahimyar Khan and another 1988 CLC 436; Bahawal and 5 others v. Akbar Ali and 17 others 2000 YLR 1296; Mst. Lachhmee v. Mst. Bhulli AIR 1927 Lah. 289; Imam Gul v. Mst. Begum Gi 1980 CLC 530; AIR 1960 Mad. 57; Abdul Majeed and 6 others v. Mst. Haleema and 18 others 1987 CLC 2331; Province of the Punjab through Board of Revenue, Lahore and 2 others v. Muhammad Hussain and 4 others 1988 CLC 514; Government of West Pakistan through Chief Secretary, Lahore and 4 others v. Niaz Muhammad PLD 1967 SC 271 and Saeed Ahmad v. Messrs Indo Enamel Works Ltd., Lahore PLD 1954 Lah. 490 ref.

Mirza Manzoor Ahmad for Petitioners.

M. Bashir Ahmad Sayal for Respondent No. 1.

Nemo for Respondent No. 2.
Date of hearing: 13th June, 2001.

JUDGMENT

Brief facts necessary for the disposal of the instant revision petition are that Faiz Bakhsh‑respondent No. 1 filed a suit for possession of the suit land (detailed in the plaint) on the basis of his alleged right of pre-­emption and Mst. Aisha‑respondent No. 2 also filed such a suit claiming to be a collateral of the vendors against the vendee (now petitioners). Since the impugned sale was the same, the learned trial Court consolidated both the suits and also framed consolidated issues with reference to the pleadings of the parties.

2. Learned trial Court vide its consolidated judgment dated 22‑1‑1985 held that Faiz Bakhsh (now respondent No. 1) had first right of pre‑emption and directed him to deposit the decretal amount by 22nd February, 1985 and on his failure to do so, Mst. Aaisha (now respondent No. 2) was directed to deposit the pre‑emption money upto 22nd March, 1985. In this way, both the suits. were decreed. The petitioner/vendees went in appeal against the same which was dismissed by the learned Additional District Judge, vide his judgment and decree dated 22‑6‑1988 on the ground that one appeal against the judgment and decrees: of the learned trial Court was not maintainable. However, no finding on the merits of the case was given.

3. Instant revision petition calls in question the aforesaid judgment and decree of the learned Additional District Judge.

4. Learned counsel for the petitioners argues that both the suits filed against the petitioners/vendees were consolidated; consolidated issues were also framed; suits were disposed of by the learned trial Court by one consolidated judgment, though two decrees were prepared yet one appeal against the same was competent as held by the superior Courts. Reliance has been placed on 1981 SCMR 585 (Abdullah v. Faqir. Ullah and others), 1988 CLC 436 (Manzoor Ahmad v. Additional Judge‑III Rahimyar Khan and another), 2000 YLR 1296 (Bahawal and five others v. Akbar Ali and 17 others and AIR 1927 Lahore (F.B.) 289 (Mst. Lachhmee v. Mst. Bhulli). It is also contended with force that mere technicalities not to be allowed to prevent the Court from doing substantial justice between the parties.

5. On the other hand, learned counsel for successful pre‑emptor/respondent No.1 vehemently supports the impugned judgment of the learned Additional District Judge by submitting that the same had been passed strictly in accordance with law and facts. Adds with vehemence that the judgments cited by the learned counsel for the petitioners have been passed in the context of doctrine of res judicata (section 11, C.P.C.) and the same have not been passed with reference to Order 41, rule 1, C.P.C., relating to the filing of appeal which clearly lays down that an appeal shall lie only from a decree and memorandum of appeal shall also be accompanied by a copy of the decree and the same cannot be dispensed with in any eventuality. In the instant case, decree passed in a suit of respondent No. 1 was never challenged by the petitioners through an appeal. Thus, decree passed in this suit had attained the finality as the same was never brought under attack and the learned Additional District Judge had rightly held so. Reliance has been placed on 1980 CLC 530 (Imam Gul v. Mst. Begum Gi), AIR 1960 Madras 57 (V 47 C 16) Gundu Rao), 1987 CLC 2331 (Abdul Majeed and 6 others v. Mst. Haleema and 18 others) 1988 CLC 514, Province of the Punjab through Board of Revenue, Lahore and 2 others v. Muhammad Hussain and 4 others) and PLD 1967 SC 271 (Government of West Pakistan through Chief Secretary, Lahore and four others v. Niaz Muhammad).

6. I have given due consideration to the valuable arguments of learned counsel for the parties, perused the record and gone through the judgments cited at the bar.

7. The precises question for determination in this revision petition is that where two suits between the same parties are consolidated, tried together on consolidated issues and disposed of by one common judgment but separate decrees are prepared and an appeal is filed in one case only, whether in such a case, the same could be held to be competent with regard to separate decree. It has been repeatedly held that the un‑appealed decree does not operate as res judicata. The judgments cited by the learned counsel for the petitioners to support this proposition. With reference to sections 11 and 96, C.P.C., it has been observed in the case of Mansoor Ahmad (supra) "as a result of consolidation there was virtually one decree passed to regulate both suits and in such situation, just one appeal would suffice because Appellate Court could therein exercise jurisdiction effectively about both the matters ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑­‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ ‑‑‑‑‑‑‑‑‑‑‑‑If two separate decrees had been passed in two consolidated suits between the same parties, even then one appeal would have been sufficient. Reliance has been placed on Saeed Ahmad v. Messrs Indo Enamel Works Ltd., Lahore (PLD 1954 Lah. 490).

In the case of Bahawal (supra). The case was also examined with reference to section 96 and Order 41, rule 1, C.P.C., and it was held "an appeal against two decrees based on one consolidated judgment‑‑ One appeal is permissible against such decree".

8. The judgments cited by the learned counsel for contesting respondent No. 1 cannot be strictly made applicable to the present set of circumstances. For instance, in case of Imam Gul (supra) only one decree was passed in one suit of declaration but the memorandum of appeal was not accompanied by a copy of the decree, therefore, it was held that the appeal was not validity presented.

In A I R 1960 Madras 57, it was held with reference to section 96, C.P.C. that a single appeal against the decrees in two suits based on different causes of action and having different scone is not competent. In case of Abdul Majeed (supra) it was held with reference to Order 41, rule 1, C.P.C. that the production of copy of the judgment can be dispensed with by the appellate Court but a copy of the decreed appealed from must be filed alongwith the appeal. This was also a case of one decree passed in one suit.

In 1998 C L C 514, only one decree was passed in one suit and certified copy of decree was not appended with memorandum of appeal. So, it was held "that appeal could be considered to have been instituted on the date when the certified copies of judgments and decrees were placed on record".

PLD 1967 SC 271 also relates to one decree passed in one suit only and appeal against the same was examined with reference to Order 41, rule 1, C.P.C., and Article 156, of the Limitation Act.

9. Thus, it is clear that all the judgments referred to by the learned counsel for respondent No. 1 have been passed under the circumstances entirely different from the present one. All the judgments related to the case of one decree arising out of one suit and in the instant case about the same subject-­matter between the same parties, to suits were filed, the same were consolidated and tried together on the premises of consolidated issues and disposed of by one consolidated judgment.

10. It is also held in the case of Abdullah (supra) "that such a plea of not filing appeal against another decree where the consolidated suits were disposed of by one judgment is a mere technicality and the same is not to be normally allowed to prevent Courts from doing substantial justice between the parties".

11. I am convinced that the impugned judgment and decree of the learned Additional District Judge cannot be validly sustained in the facts and circumstances of the instant case. Since the appeal of the petitioners was dismissed on a hyper‑technical ground and the merits were not touched, the case is liable to be remanded.

12. Resultantly, the instant petition is allowed by setting aside the impugned judgment and decree of the learned Additional District Judge dated 22‑6‑1988 and the case is remanded to him for a decision afresh on merits, in accordance with law after hearing the parties. It is further directed that appeal shall be decided within four months positively from the date of appearance of the parties. There shall be no order as to costs.

S.A.K./M.A.K./A‑276/L Case remanded.

03/05/2022

Wish you *Eid-ul-Fitar Mubarak* to you & your family members.

On this Occasion, I pray that,
May Almighty Allah accept your fast, Idabat & all donations during the Holy month of Ramadan & also gives you the strength to practice this ritual in upcoming years.
Amen.
Regards,
Waseem Ahmed
*Legal Advisor & Consultant*
*Advocate District Courts & High Court*

24/04/2022

Dishonored Cheque(489F)

Complainant is not entitled to register FIR in case of partial payment.
*Bail confirmed before arrest.
. . 2019 PCrLJ 295

It is also necessary to stop the payment in the bank. Just by filing a report of check book theft, the bail of 489-F case will not be accepted.
. . . 2013 YLR 626

If the accused agrees to give a guarantee check, he will not be entitled to bail.
. . . 2011 YLR 1284

If the check is not presented to the bank within six months after the issue, the accused will be entitled to bail.
. . . 2020 YLR 2064

If the check is given as security then 489-F will not be applicable against the accused. The accused will be entitled to pre-arrest bail.
. . 2016 PCrLJ 769

If the check is issued by someone other than the accused, the accused will be entitled to pre-arrest bail.
. . . 2014 YLR 882

Just issuing a check will not prove 489F. It is important to prove that the check was issued dishonestly.
. . 2021 YLR 32

489F will not apply to guaranteed checks. Bail granted.
. . 2020 PCrLJ 268

14/04/2022



پولیس ڈاکٹ کیا ہے؟ کیسے جاری ہوتا ہے اور اگر پولیس ڈاکٹ نہ جاری کرے تو کیا کیا جائے؟

پولیس ڈاکٹ ایک طرح کا پولیس کی طرف سے جاری کردہ ایک درخواست ہوتی ہے جو پولیس کرتی ہے متعلقہ سرکاری ہسپتال کو کہ زخمی شخص کا میڈیکل کیا جائے تاکہ آگے مزید قانونی کارروائی کی جاسکے۔ جب کوئی شخص کسی دوسرے شخص کو مضروب یعنی زخمی کر دے تو وہ زخمی شخص پولیس اسٹیشن جاکر تمام احوال بتائے گا اور پولیس کو کہے گا وہ ڈاکٹ جاری کریں تاکہ اس کا میڈیکل لیگل سرٹیفکیٹ بن سکے جس کی بنیاد پر ایف آئی آر ہو۔ پولیس زخمی شخص کو سن کر اور زخموں کی نوعیت دیکھ کر سادہ کاغذ پر نقشہ مضروبی بناتا ہے یعنی زخمی کا نام پتہ، زخم کی نوعیت وغیرہ۔ یہ ڈاکٹ زخمی شخص کو دے کر ایک سپاہی کے ساتھ متعلقہ سرکاری ہسپتال بھیج دیا جاتا ہے جہاں پر ڈاکٹر زخم کا معائنہ کر کے میڈیکل لیگل رپورٹ تیار کرتا ہے۔ اس رپورٹ کو MLC بھی کہا جاتا ہے. میڈیکل لیگل سرٹیفکیٹ کی بنیاد پر پولیس ایف آئی آر کرتی ہے اور زخموں کی نوعیت دیکھ کر تعزیرات پاکستان کی دفعات شامل کرتی ہے۔ جتنے زخم سریس یا جان لیوا نوعیت کے ہونگے اتنے ہی سخت دفعات لگیں گی جس میں مجرم کو عمر قید تک کی سزا ہوسکتی ہے۔

پولیس ڈاکٹ جاری نہ کرے تو کیا کیا جائے؟

ہمارے معاشرے میں بدقسمتی سے ہر ادارے میں کرپشن ہے۔ یہی حال ہماری پولیس کا ہے۔ پولیس پیسے لیکر یا سیاسی اثر و رسوخ کے باعث متاثرہ شخص کا میڈیکل نہیں کرواتی۔ جتنا میڈیکل تاخیر سے ہوگا اتنا ہی کیس کمزور ہوگا۔ لہٰذا اگر پولیس ڈاکٹ جاری نہیں کرتی تو فوراً عدالت پہنچیں مجسٹریٹ کو درخواست دیں اس میں بتائیں پولیس ڈاکٹ جاری نہیں کر رہی. مجسٹریٹ متعلقہ سرکاری ہسپتال کے MS کو حکم دے گا کہ زخمی شخص کا میڈیکل کروایا جائے. میڈیکل ہونے کے بعد آپ کے لیے دروازہ کھل جائے گا کہ آپ ملزمان کے خلاف قانونی کارروائی کرسکیں. اگر آپکا میڈیکل لیٹ ہوا ہے تو عدالت کو بتائیں کے لیٹ پولیس کی وجہ سے ہوا ہے تاکہ آپکا کیس مشکوک نہ ہو اگر کیس مشکوک ہوتا ہے تو یاد رکھیں شک کا فائدہ ہمیشہ ملزم کو جاتا ہے لہذا جب بھی آپ کے ساتھ ظلم زیادتی ہو فوراً متعلقہ اداروں یا عدالت سے رجوع کریں۔

27/03/2022

صرف اس ایک ہی فیصلہ کو مکمل طور پر پڑھ اور سمجھ لیا جائے تو نئے وکلا بھی منشیات کے مقدمات کا ٹرائل آسانی سے کرا سکتے ہیں۔
پراسیکیوٹرز اور تفتیشی افسران کو بھی یہ فیصلہ ضرور پڑھنا چاہیے تاکہ وہ نقائص دور کیے جا سکیں جو منشیات کے مقدمات میں ملزمان کی بریت کا سبب بنتے ہیں

Acquittal of drug paddlers due to defective investigation and poor prosecution is matter of great concern. Guidelines provided for maintaining chain of safe custody.

2022 Cr.C. 492 (DB)
[Lahore High Court, Multan Bench]

Present: Ali Zia Bajwa and Muhammad Shan Gul, JJ.

NADEEM AKHTAR--Appellant

versus

STATE and another--Respondents

Crl. A. No. 94 of 2017, heard on 13.10.2021

Control of Narcotic Substances Act, 1997 (XXV of 1997)--

----S. 9(c)--Safe custody--Acquittal of--50 small packets containing he**in total 11 grams were recovered from his pocket--Upon further search of accused chemical in shape of powder (of he**in origin) total 3-KGs and 970 grams (P-5) was also recovered--Chain of safe custody has not been indubitably established by prosecution--Case carrying harder sentence must be proved through credible and persuasive evidence and transparent process in order to rule out possibility of any error--A single circumstance creating reasonable doubt would be sufficient to smash veracity of prosecution case--Conviction and sentence recorded by trial Court are set aside and appellant is acquitted of charge.

[Pp. 496, 497 & 499] A, B, C, D & E

2021 SCMR 451; 2021 SCMR 363; 2019 SCMR 2004; 2021 SCMR 49; PLD 2012 SC 380; 2009 SCMR 579; 2019 SCMR 1217 ref.

Control of Narcotic Substances Act, 1997 (XXV of 1997)--

----S. 9(c)--Safe custody--Vital steps, which are obligatory to ensure conviction of an accused through maintaining chain of safe custody, are formulated hereinafter to ensure effective investigation and successful prosecution in cases relating to narcotics:

• Any police officer setting up a picket, conducting a raid on spy information or otherwise or leaving police station for patrolling must enter in relevant police register his departure and arrival--Incorporation of arrival and departure by police officer in register No. 2 maintained under Police Rules, 1934 (hereinafter "Rules") is mandatory--The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at police station or elsewhere, with a statement of nature of their duty must be incorporated in aforesaid register--This entry shall be made immediately on arrival or prior to departure of officer concerned and shall be attested by him personally by signature or seal--Every police officer of or above rank of head constable, when returning from duty other than an investigation in which case diaries are submitted, shall have an entry made in daily diary by station clerk or his assistant showing places he has visited and duties performed by him during his absence from police station. Such entries provide corroboration qua alleged recovery of narcotics and arrest of accused and absence of such entries in relevant register creates doubt which goes in favour of accused.

• The parcels of sample and rest of bulk quantity (case property) shall be secured with sealing wax bearing seal impression of responsible/relevant police officer and shall be properly marked and labeled--Thereafter such parcels shall be sent to be kept in safe custody in store room as prescribed under Rules--Entries regarding depositing and removal of said case property subsequently shall be entered in police register No. 19 as provided in Rules.

• Statements of police officials, recovering narcotics from accused, making parcels of case property, transporting same from crime scene to store room to be kept in safe custody, receiving it and keeping it in store room, handing over sample parcels for further transmission to forensic lab and depositing those parcel in forensic lab, must be recorded under Section 161, Cr.P.C. and they must be produced as witnesses during trial to prove fact that narcotics substance as produced in forensic lab and before Court is same which was recovered from accused at crime scene.

• While transmitting sample parcels to forensic lab process provided in rules must be adhered to qua obtaining road certificate from register No. 21 of police station as mentioned in aforementioned rules--Copy of such road certificate should also be made part of case file.

• The police official who transmits complaint to police station for registration of FIR and official who jots down crime report under Section 154, Cr.P.C. in relevant register should be produced before Court as witnesses in order to eliminate all doubts qua culpability of a drug paddler.

• Prosecutor must ensure that no prosecution witness, who is necessary to prove chain of safe custody, is left out--Production of these witnesses before trial Court is eventually responsibility of prosecutor--It is mandatory upon him to perform his functions and exercise his powers fairly, honestly, with due diligence in public interest and to uphold justice.

• It has also been observed by this Court that sometimes crucial incriminatory piece of evidence is not put to an accused, which ultimately results in his acquittal--Trial Court should be very cautious and vigilant, while recording statement of accused as envisaged under Section 342, Cr.P.C. and should make sure that every piece of evidence available on record is put to accused.

• In addition to aforementioned steps, Punjab Forensic Science Agency issued directions in year 2012 to establish valid chain of custody of recovered narcotics, which unfortunately could not be followed strictly--These direction must be followed too and same are reproduced hereafter:-

For a valid chain of custody, all items of evidence must be labeled with following information:

• Name of victim or suspect.

• Case number.

• Type of specimen (i.e., Narcotic Plant material, narcotic medicines, Injections, ci******es, used syringes, Chars, capsules, o***m).

• Amount of sample.

• Time and date of collection.

• Names, stamp, designation of person collecting sample.

Finally, sample collected must be sealed with molten wax seal to document specimen integrity--A reference seal sample must be attached along with packed sample. [Pp. 502, 503& 504] F

M/s. Muhammad Luqman and Rao Matloob Ahmed, Advocates for Appellant.

Mr. Mohammad Ali Shohab, Deputy Prosecutor General for State.

Date of hearing: 13.10.2021.

Judgment

Ali Zia Bajwa, J.--This criminal appeal is preferred against the judgment dated 21.02.2017, passed by the learned Additional Sessions Judge/Judge Special Court-CNSA, Vehari; who, while adjudicating upon case FIR No. 560/2015, dated 19.12.2015, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered with Police Station Danewal Vehari, convicted and sentenced the appellant, as under:-

Ø Under Section 9(c) of the Control of Narcotic Substances Act, 1997, sentenced to undergo R.I. for eight years with fine of Rs. 70,000/- and in case of default in payment thereof, to further undergo S.I. for eight months.

Ø Benefit of Section 382-B, Cr.P.C. was extended in favour of the appellant.

2. Precisely, resume of prosecution case as structured in the FIR (Exh.PC) lodged on the basis of complaint (Exh.PB) of Rasheed Ahmed, Inspector (PW-2) is that on 19.12.2015, complainant along with Saeed Ahmed ASI, Maqbool Ahmed ASI, Rasheed Ahmed 614/HC, Ghulam Mustafa 447/C, Abdul Ghaffar 1219/C, Sharafat Ali 1252/C and Shahid Ibrahim 1018/C of CIA Staff, was present in his office. He received spy information that one person was selling contraband (he**in) infront of his house situated behind Mian Electronic Club Road, Vehari. On receipt of information the complainant along with other PWs, while boarding on official vehicle bearing Registration No. VRC/1020 driven by Samar Latif 1416/C reached at the spot, on the signal of the informer encircled the accused, who was apprehended and disclosed his name as Nadeem Akhtar son of Manzoor Ahmed, caste Arain, resident of back side of Mian Electronic Club Road, Vehari. On his personal search 50 small packets containing he**in total 11 grams were recovered from his pocket besides sale proceed consisting currency notes worth of Rs. 3,380/- (P-2/1-12, P-3/1-20, P-4/1-32 and P-5/1-34). Upon further search of accused chemical in the shape of powder (of he**in origin) total 3-KGs and 970 grams (P-5) was also recovered. All the recovered articles were taken into possession vide recovery memo. Exh.PA. The complainant drafted complaint and dispatched it to Police Station for registration of formal FIR. Thereafter investigation was entrusted to Altaf Hussain, S.I. (PW-5) who along with other police officials visited the place of occurrence. He inspected the spot, prepared rough site-plan (Exh.PD) and recorded statements of the prosecution witnesses under Section 161, Cr.P.C. The complainant handed over the case property and sale-proceed to Ghulam Mustafa 447/C for depositing it in Malkhana for safe custody and onward transmission for forensic analysis.

Description: A3. Upon conclusion of investigation, report prepared under Section 173, Cr.P.C. was submitted before the learned trial Court through prosecution and appellant was formally indicted on 04.05.2016 to which he pleaded not guilty and claimed trial. In order to substantiate its version, prosecution produced as many as five (5) prosecution witnesses.

4. After completion of the prosecution evidence, statement of the appellant, as envisaged under Section 342, Cr.P.C. was recorded by the learned trial Court. He professed his innocence and pleaded false implication in the case. He neither opted to get his statement recorded under Section 340(2), Cr.P.C., nor did he produce any defence evidence. Upon completion of trial, the learned trial Court having found the case against the appellant to have been proved beyond any reasonable shadow of doubt, convicted and sentenced him as mentioned and detailed above.

5. Arguments heard, record perused.

6. The main crux of arguments advanced by learned counsel for the appellant is that chain of safe custody of recovered contraband in this case could not be established during the course of trial. While elaborating his arguments learned counsel contended that according to prosecution version the complainant handed over the case property to Altaf Hussain SI (PW.5) but according to him same was handed over to Ghulam Mustafa 447/C, CIA, who was not produced as a witness during the course of trial. In order to evaluate the contention of learned counsel for the appellant, we have minutely scrutinized the material available on record and observed that while making his statement during the course of trial Altaf Hussain, S.I. (PW-5)/Investigating Officer stated that the complainant handed over case property to Ghulam Mustafa 447/C, CIA. Relevant extract out of his statement is reproduced as under:

“Rasheed Ahmad Inspector/complainant handed over case property of this case i.e. two sealed parcels as sample and two sealed parcels as case property of he**ine along with sale proceed Rs. 3,380/- to Ghulam Mustafa 447/C, CIA.”

Description: BHowever, surprisingly said Ghulam Mustafa was neither cited as a witness in the calendar of witnesses nor his statement was recorded during the course of trial. When confronted learned Deputy Prosecutor General also frankly conceded this aspect. Hence, as rightly pointed out by learned counsel for the appellant, safe custody of the case property in this case had been compromised. The law on the subject is very much settled that the prosecution is under bounden duty to establish every limb of safe custody of the recovered contraband and in case it is not established beyond doubt, the same cannot be used against the accused. There is force in the contention that the chain of safe custody has not been indubitably established by the prosecution. The mechanism of chain of custody or safe custody and safe transmission of recovered contraband for forensic analysis has been elucidated in an elaborative manner by the august Supreme Court of Pakistan in Mst. Sakina Ramzan vs. The State - 2021 SCMR 451 in following terms:

The chain of custody or safe custody and safe transmission of narcotic drug begins with seizure of the narcotic drug by the law enforcement officer, followed by separation of the representative samples of the seized narcotic drug, storage of the representative samples and the narcotic drug with the law enforcement agency and then dispatch of the representative samples of the narcotic drugs to the office of the chemical examiner for examination and testing. This chain of custody must be safe and secure. This is because, the Report of the Chemical Examiner enjoys critical importance under CNSA and the chain of custody ensures that correct representative samples reach the office of the Chemical Examiner. Any break or gap in the chain of custody i.e., in the safe custody or safe transmission of the narcotic drug or its representative samples makes the Report of the Chemical Examiner unsafe and unreliable for justifying conviction of the accused. The prosecution, therefore, has to establish that the chain of custody has been unbroken and is safe, secure and indisputable in order to be able to place reliance on the Report of the Chemical Examiner.

In a recent judgment of august Supreme Court of Pakistan in Qaiser Khan’s Case[1] it has been held as under:

“The law in this regard is settled by now that if safe custody of narcotics and its transmission through safe hands is not established on the record, same cannot be used against the accused.”

It was also held in Zahir Shah alias Shat v. The State through Advocate-General, Khyber Pakhtunkhwa - 2019 SCMR 2004 that:

“This Court has repeatedly held that safe custody and safe transmission of the drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory must be satisfactorily established. This chain of custody is fundamental as the report of the Government Analyst is the main evidence for the purpose of conviction. The prosecution must establish that chain of custody was unbroken, unsuspicious, safe and secure. Any break in the chain of custody i.e., safe custody or safe transmission impairs and vitiates the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction”

In another recent verdict the prestigious Supreme Court of Pakistan extended benefit of broken chain of safe custody to appellant in Zubair Khan's Case[2] and acquitted him. In successive verdicts,[3] where chain of safe custody and transmission for forensic analysis was compromised, honorable Supreme Court of Pakistan extended the benefit of doubt to the appellants.

Description: C7. It is cardinal principle of law that the case carrying harder sentence must be proved through credible and persuasive evidence and transparent process in order to rule out the possibility of any error. Respectful reliance in this regard can be placed on the ratio decidendi rendered by august Supreme Court of Pakistan in Ameer Zeb's Case[4] as infra:

“Punishments provided in the Control of Narcotic Substances Act, 1997 were quite stringent and long, if not harsh, and, thus, a special care had to be taken that a Court trying such an offence had to be convinced that the entire quantity allegedly recovered from the accused person's possession was indeed narcotic substance. We, reverently and respectfully, tend to agree with the latter view and would like to add that the rule of thumb for safe administration of criminal justice is: the harsher the sentence the stricter the standard of proof.”

Description: D8. Moreover, it is cardinal principle of law that a single circumstance creating reasonable doubt would be sufficient to smash the veracity of prosecution case and the benefit of said doubt has to be extended in favour of the accused not as a matter of grace or concession but as a matter of right. Respectful reliance in this regard can be placed upon the ratio decidendi of august Supreme Court of Pakistan in the cases of Qaisarullah and others vs. The State 2009 SCMR 579 & Kamran Shah and others v. The State and others - 2019 SCMR 1217

Description: E9. In the circumstances discussed above, we are fully convinced that the prosecution has failed to prove its case against the appellant beyond reasonable doubt, therefore, while allowing Crl. Appeal No. 94/2017, the conviction and sentence recorded by the learned trial Court are set aside and the appellant is acquitted of the charge in case FIR No. 560/2015, dated 19.12.2015, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered with Police Station Danewal Vehari, while extending him benefit of doubt. He is directed to be released forthwith if not required in any other case.

10. Before parting with the judgment, it would be advantageous to identify the root cause of failure of prosecution against the drug pushers as matter of routine due to flawed investigation and shoddy prosecution. Foremost cause of acquittal in narcotics cases is absence of chain of safe custody despite of the fact that apex Court of this Country elaborated concept of chain of safe custody recurrently in series of judgments as referred to above. To maintain the chain of safe custody in narcotics cases is most critical procedure for successful prosecution of an accused. It is imperative and a must to assure the Court of law that sample of narcotics substance sent to forensic lab and bulk quantity presented before it is same as allegedly recovered from the accused at the crime scene. It further postulates that the case property continuously remained in the custody of a person designated to handle it. The continuity of safe possession or custody of recovered narcotics substance, from its transportation from the place of recovery (at the scene of a crime or from a person) to designated store room, further transmission of samples to the laboratory for examination and presentation of rest of the bulk quantity before the trial Court from store room, is known as the chain safe of custody.

11. The Control of Narcotics Substance Act, 1997 (CNSA) provides stringent provisions for offenders involved in narcotics selling, possession and trafficking. Despite the fact that major offences under the aforesaid Act are non-bailable, it has been observed that in numerous cases the drug offenders secure acquittal on technical grounds. A large number of offenders involved in narcotics cases are acquitted due to compromised chain of safe custody. The acquittals in serious offences particularly in narcotics cases raise serious concerns amongst the masses qua the performance of investigating agencies and prosecution department other than seriously jeopardizing the effort to eliminate menace of drugs from society.

12. Maintaining the chain of safe custody is a legal and professional responsibility of investigating agency and subsequently presenting it before the trial Court by the prosecution. Role of investigating agency and prosecution is equally crucial to ensure the conviction of an accused in criminal cases. Duty of Investigating Officer is to collect the evidence and send the same to prosecutor, who is saddled with the duty to present that evidence in Court to prove the guilt of accused. Any slipup in collection of evidence or adducing the same in trial Court results in acquittal of accused. It is observed that at times despite of the fact that investigation report filed by investigating agency under Section 173, Cr.P.C. is compact and contains the plausible evidence to prove the chain of safe custody but same is not properly presented in the trial Court. As such, it is incumbent upon the investigating agencies and prosecutors to perform their assigned duties in a professional manner to achieve the desired object of law. Conviction of an accused is not possible without investigating agency and prosecution complementing each other and playing their respective role under the law.

13. The law regulating the chain of safe custody of recovered narcotics substance and its strict compliance is of utmost significance. Before referring to the law in our country pertaining to the chain of safe custody, it would not be out of place to have a bird eye view of law on the subject matter from neighboring jurisdiction i.e. India. The relevant law is The Narcotic Drugs and Psychotropic Substances Act, 1985 and relevant provision is Section 55 which is reproduced hereunder:

Section 55. Police to take charge of articles seized and delivered.--An officer in charge of a police station shall take charge of and keep in safe custody pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.

The Narcotic Drugs and Psychotropic Substances Act, 1985 does not make any special provision regulating storage and safe custody of the contraband substances. All that Section 55 of Narcotic Drugs and Psychotropic Substances Act, 1985 envisages is that the officer in charge of a Police Station shall take charge of and keep in safe custody the seized article pending orders of the Magistrate concerned. But Standing Order No. 1 of 1989 dated 13th June, 1989 prescribes the elaborative procedure to be followed for seizure, sampling, safe keeping and disposal of the seized Drugs, Narcotics and Psychotropic substances, which is being followed throughout the country. It provides a self-explanatory procedure to do the needful.

14. Although in our country under Control of Narcotics Substance Act, 1997 there is no explicit provision regulating the process of safe custody but Control of Narcotic Substances (Government Analysts) Rules, 2001, farmed under Section 77 of the Act ibid provide procedure qua the preparation of samples and their dispatch to forensic lab in order to establish safe custody. Section 516- A, Cr.P.C., 1898, and several rules contained in Police Rules, 1934 provide self-explanatory procedure to be followed to maintain the chain of safe custody of recovered narcotics substance.

15. This matter is of great concern that due to defective investigation and at times poor prosecution accused in narcotics cases succeed to secure acquittal. Forming the chain of safe custody of recovered narcotics substance is a straightforward and uncomplicated procedure. There is nothing onerous or tricky involved in process to maintain and prove such chain but unfortunately such procedure is unheeded, which results in failure of prosecution against the accused of drug cases. It is imperative to create appropriate awareness qua the correct procedures of maintaining the chain of safe custody of narcotics and its importance amongst the officials of investigating agencies dealing with such cases. It is often ignored and given very little significance as a seemingly simple and straightforward procedure, which often results in acquittal of drug paddlers. Still, it must remain in mind that it is the most crucial procedure, which ultimately decides the fate of narcotics cases.

16. Some vital steps, which are obligatory to ensure the conviction of an accused through maintaining chain of safe custody, are formulated hereinafter to ensure effective investigation and successful prosecution in cases relating to narcotics.

Description: F• Any police officer setting up a picket, conducting a raid on spy information or otherwise or leaving police station for patrolling must enter in the relevant police register his departure and arrival. Incorporation of arrival and departure by the police officer in Register No. 2 maintained under Police Rules, 1934 (hereinafter "Rules") is mandatory. The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty must be incorporated in the aforesaid register. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by him personally by signature or seal. Every police officer of or above the rank of head constable, when returning from duty other than an investigation in which case diaries are submitted, shall have an entry made in the daily diary by the station clerk or his assistant showing the places he has visited and the duties performed by him during his absence from the police station.[5] Such entries provide corroboration qua the alleged recovery of narcotics and arrest of accused and absence of such entries in the relevant register creates doubt which goes in favour of accused.

• The parcels of sample and rest of the bulk quantity (case property) shall be secured with sealing wax bearing the seal impression of the responsible/relevant police officer and shall be properly marked and labeled. Thereafter such parcels shall be sent to be kept in safe custody in store room as prescribed under Rules.[6] Entries regarding depositing and removal of said case property subsequently shall be entered in police register No. 19 as provided in Rules.[7]

Description: F• Statements of police officials, recovering the narcotics from accused, making parcels of case property, transporting the same from crime scene to store room to be kept in safe custody, receiving it and keeping it in store room, handing over the sample parcels for further transmission to forensic lab and depositing those parcel in forensic lab, must be recorded under Section 161, Cr.P.C. and they must be produced as witnesses during trial to prove the fact that narcotics substance as produced in forensic lab and before the Court is same which was recovered from the accused at crime scene.

• While transmitting the sample parcels to forensic lab the process provided in rules[8] must be adhered to qua obtaining road certificate from Register No. 21 of police station as mentioned in aforementioned rules. Copy of such road certificate should also be made part of case file.

• The police official who transmits the complaint to police station for registration of FIR and official who jots down the crime report under Section 154, Cr.P.C. in relevant register[9] should be produced before the Court as witnesses in order to eliminate all the doubts qua the culpability of a drug paddler.

• Prosecutor must ensure that no prosecution witness, who is necessary to prove the chain of safe custody, is left out. Production of these witnesses before the trial Court is eventually responsibility of the prosecutor. It is mandatory upon him to perform his functions and exercise his powers fairly, honestly, with due diligence in the public interest and to uphold the justice.[10]

• It has also been observed by this Court that sometimes crucial incriminatory piece of evidence is not put to an accused, which ultimately results in his acquittal. Trial Court should be very cautious and vigilant, while recording statement of accused as envisaged under Section 342, Cr.P.C. and should make sure that every piece of evidence available on the record is put to the accused.

• In addition to aforementioned steps, Punjab Forensic Science Agency issued directions[11] in year 2012 to establish valid chain of custody of recovered narcotics, which unfortunately could not be followed strictly. These direction must be followed too and same are reproduced hereafter:-

For a valid chain of custody, all items of evidence must be labeled with the following information:

• Name of victim or suspect.

• Case number.

• Type of specimen (i.e., Narcotic Plant material, narcotic medicines, Injections, ci******es, used syringes, Chars, capsules, o***m).

• Amount of sample.

• Time and date of collection.

• Names, stamp, designation of person collecting the sample.

Finally, the sample collected must be sealed with molten wax seal to document specimen integrity. A reference seal sample must be attached along with the packed sample.

Alternatively, all of the samples collected for a given case may be placed in a tamper-evident container labeled with the case number and name.

17. In addition to above, in compliance of direction issued by Honorable Supreme Court of Pakistan in Criminal Petition No. 1402-L of 2016 titled as “State vs. Abdul Haq” Standard Operating Procedure (SOP) was issued in year 2017 after the approval of Provincial Police Officer, Punjab to ensure the chain of safe custody in narcotics cases, and it was circulated throughout the Province among the Investigating Officers, but it proved a futile effort, as usual it had never been followed. We don't have a slightest of hesitation to hold that there is

abundance of laws to ensure chain of safe custody but real challenge lies in implementation of these laws, which, regrettably, has become "mission impossible" which is well reflective from the history of our criminal justice system.

18. Investigation is substratum of every criminal case, therefore any flaw therein, eventually, results in acquittal of culprits. Defective investigation in criminal cases should not be overlooked by the high ups of investigating agencies, responsible for supervision of such process. In presence of a self-explanatory procedure to maintain the chain of safe custody, non-compliance of the same is a criminal act which should be dealt with accordingly. It is high time to curb the pitfalls of defective investigations to ensure the smooth operation of our criminal justice system to bring the actual culprits to book.

19. District Police Officers, in their concerned districts, shall take serious notice of acquittals resulted due to defective investigations and proceed against the delinquent investigators under the relevant provisions of law, which include penal as well as departmental action. Accountability is the glue that bonds commitment to results[12] and where there is no accountability there is no responsibility.

20. Office shall transmit a copy of this judgment to the Inspector General of Police/Provincial Police Officer Punjab, as well as, Director General, Anti-Narcotics Force, who shall make arrangements for its circulation within relevant hierarchy working under their supervision and ensure its compliance in letter and spirit.

(K.Q.B.)

[1]. 2021 SCMR 363

[2]. ZUBAIR KHAN's v. The STATE - 2021 SCMR 49

[3]. ABDUL GHANI and others v. The STATE and others - 2019 SCMR 608, KAMRAN SHAH and others v. The STATE and others - 2019 SCMR 1217, FAIZAN ALI v. State - 2019 S CMR 1649, Mst. Razia Sultana v. The State and another - 2019 SCMR 1300, ZAHIR SHAH alias SHAT v. The STATE through Advocate-General, Khyber Pakhtunkhwa - 2019 SCMR 2004, Haji NAWAZ v. The STATE - 2020 SCMR 687, State v. Imam Bakhsh - 2018 SCMR 2039, Amjad Ali v. The State - 2012 SCMR 577 and Ikramullah and others v. The State - 2015 SCMR 1002

[4]. PLD 2012 SC 380.

[5]. Rule 49 Chapter 22 Police Rules, 1934.

[6]. Rule 11 Chapter 22 Police Rules, 1934.

[7]. Rule 70 Chapter 22 Police Rules, 1934.

[8]. Rule 72 Chapter 22 Police Rules, 1934.

[9]. Rule 1 Chapter 24 Register No. 1.

[10]. Section 12(9) Punjab Criminal Prosecution Service (constitution, functions & Powers) Act, 2006.

[11]. PFSA Introductory Booklet, 2012-Edition available on PFSAGuidelinesEnglish.pdf (punjab.gov.pk).

[12]. Bob Proctor Canadian Author available on: https://daphnewells.com/accountability-is-says-bob- proctor/

Acquittal of drug paddlers due to defective investigation and poor prosecution is matter of great concern. Guidelines provided for maintaining chain of safe custody.

2022 Cr.C. 492 (DB)
[Lahore High Court, Multan Bench]

Present: Ali Zia Bajwa and Muhammad Shan Gul, JJ.

NADEEM AKHTAR--Appellant

versus

STATE and another--Respondents

Crl. A. No. 94 of 2017, heard on 13.10.2021

Control of Narcotic Substances Act, 1997 (XXV of 1997)--

----S. 9(c)--Safe custody--Acquittal of--50 small packets containing he**in total 11 grams were recovered from his pocket--Upon further search of accused chemical in shape of powder (of he**in origin) total 3-KGs and 970 grams (P-5) was also recovered--Chain of safe custody has not been indubitably established by prosecution--Case carrying harder sentence must be proved through credible and persuasive evidence and transparent process in order to rule out possibility of any error--A single circumstance creating reasonable doubt would be sufficient to smash veracity of prosecution case--Conviction and sentence recorded by trial Court are set aside and appellant is acquitted of charge.

[Pp. 496, 497 & 499] A, B, C, D & E

2021 SCMR 451; 2021 SCMR 363; 2019 SCMR 2004; 2021 SCMR 49; PLD 2012 SC 380; 2009 SCMR 579; 2019 SCMR 1217 ref.

Control of Narcotic Substances Act, 1997 (XXV of 1997)--

----S. 9(c)--Safe custody--Vital steps, which are obligatory to ensure conviction of an accused through maintaining chain of safe custody, are formulated hereinafter to ensure effective investigation and successful prosecution in cases relating to narcotics:

• Any police officer setting up a picket, conducting a raid on spy information or otherwise or leaving police station for patrolling must enter in relevant police register his departure and arrival--Incorporation of arrival and departure by police officer in register No. 2 maintained under Police Rules, 1934 (hereinafter "Rules") is mandatory--The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at police station or elsewhere, with a statement of nature of their duty must be incorporated in aforesaid register--This entry shall be made immediately on arrival or prior to departure of officer concerned and shall be attested by him personally by signature or seal--Every police officer of or above rank of head constable, when returning from duty other than an investigation in which case diaries are submitted, shall have an entry made in daily diary by station clerk or his assistant showing places he has visited and duties performed by him during his absence from police station. Such entries provide corroboration qua alleged recovery of narcotics and arrest of accused and absence of such entries in relevant register creates doubt which goes in favour of accused.

• The parcels of sample and rest of bulk quantity (case property) shall be secured with sealing wax bearing seal impression of responsible/relevant police officer and shall be properly marked and labeled--Thereafter such parcels shall be sent to be kept in safe custody in store room as prescribed under Rules--Entries regarding depositing and removal of said case property subsequently shall be entered in police register No. 19 as provided in Rules.

• Statements of police officials, recovering narcotics from accused, making parcels of case property, transporting same from crime scene to store room to be kept in safe custody, receiving it and keeping it in store room, handing over sample parcels for further transmission to forensic lab and depositing those parcel in forensic lab, must be recorded under Section 161, Cr.P.C. and they must be produced as witnesses during trial to prove fact that narcotics substance as produced in forensic lab and before Court is same which was recovered from accused at crime scene.

• While transmitting sample parcels to forensic lab process provided in rules must be adhered to qua obtaining road certificate from register No. 21 of police station as mentioned in aforementioned rules--Copy of such road certificate should also be made part of case file.

• The police official who transmits complaint to police station for registration of FIR and official who jots down crime report under Section 154, Cr.P.C. in relevant register should be produced before Court as witnesses in order to eliminate all doubts qua culpability of a drug paddler.

• Prosecutor must ensure that no prosecution witness, who is necessary to prove chain of safe custody, is left out--Production of these witnesses before trial Court is eventually responsibility of prosecutor--It is mandatory upon him to perform his functions and exercise his powers fairly, honestly, with due diligence in public interest and to uphold justice.

• It has also been observed by this Court that sometimes crucial incriminatory piece of evidence is not put to an accused, which ultimately results in his acquittal--Trial Court should be very cautious and vigilant, while recording statement of accused as envisaged under Section 342, Cr.P.C. and should make sure that every piece of evidence available on record is put to accused.

• In addition to aforementioned steps, Punjab Forensic Science Agency issued directions in year 2012 to establish valid chain of custody of recovered narcotics, which unfortunately could not be followed strictly--These direction must be followed too and same are reproduced hereafter:-

For a valid chain of custody, all items of evidence must be labeled with following information:

• Name of victim or suspect.

• Case number.

• Type of specimen (i.e., Narcotic Plant material, narcotic medicines, Injections, ci******es, used syringes, Chars, capsules, o***m).

• Amount of sample.

• Time and date of collection.

• Names, stamp, designation of person collecting sample.

Finally, sample collected must be sealed with molten wax seal to document specimen integrity--A reference seal sample must be attached along with packed sample. [Pp. 502, 503& 504] F

M/s. Muhammad Luqman and Rao Matloob Ahmed, Advocates for Appellant.

Mr. Mohammad Ali Shohab, Deputy Prosecutor General for State.

Date of hearing: 13.10.2021.

Judgment

Ali Zia Bajwa, J.--This criminal appeal is preferred against the judgment dated 21.02.2017, passed by the learned Additional Sessions Judge/Judge Special Court-CNSA, Vehari; who, while adjudicating upon case FIR No. 560/2015, dated 19.12.2015, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered with Police Station Danewal Vehari, convicted and sentenced the appellant, as under:-

Ø Under Section 9(c) of the Control of Narcotic Substances Act, 1997, sentenced to undergo R.I. for eight years with fine of Rs. 70,000/- and in case of default in payment thereof, to further undergo S.I. for eight months.

Ø Benefit of Section 382-B, Cr.P.C. was extended in favour of the appellant.

2. Precisely, resume of prosecution case as structured in the FIR (Exh.PC) lodged on the basis of complaint (Exh.PB) of Rasheed Ahmed, Inspector (PW-2) is that on 19.12.2015, complainant along with Saeed Ahmed ASI, Maqbool Ahmed ASI, Rasheed Ahmed 614/HC, Ghulam Mustafa 447/C, Abdul Ghaffar 1219/C, Sharafat Ali 1252/C and Shahid Ibrahim 1018/C of CIA Staff, was present in his office. He received spy information that one person was selling contraband (he**in) infront of his house situated behind Mian Electronic Club Road, Vehari. On receipt of information the complainant along with other PWs, while boarding on official vehicle bearing Registration No. VRC/1020 driven by Samar Latif 1416/C reached at the spot, on the signal of the informer encircled the accused, who was apprehended and disclosed his name as Nadeem Akhtar son of Manzoor Ahmed, caste Arain, resident of back side of Mian Electronic Club Road, Vehari. On his personal search 50 small packets containing he**in total 11 grams were recovered from his pocket besides sale proceed consisting currency notes worth of Rs. 3,380/- (P-2/1-12, P-3/1-20, P-4/1-32 and P-5/1-34). Upon further search of accused chemical in the shape of powder (of he**in origin) total 3-KGs and 970 grams (P-5) was also recovered. All the recovered articles were taken into possession vide recovery memo. Exh.PA. The complainant drafted complaint and dispatched it to Police Station for registration of formal FIR. Thereafter investigation was entrusted to Altaf Hussain, S.I. (PW-5) who along with other police officials visited the place of occurrence. He inspected the spot, prepared rough site-plan (Exh.PD) and recorded statements of the prosecution witnesses under Section 161, Cr.P.C. The complainant handed over the case property and sale-proceed to Ghulam Mustafa 447/C for depositing it in Malkhana for safe custody and onward transmission for forensic analysis.

Description: A3. Upon conclusion of investigation, report prepared under Section 173, Cr.P.C. was submitted before the learned trial Court through prosecution and appellant was formally indicted on 04.05.2016 to which he pleaded not guilty and claimed trial. In order to substantiate its version, prosecution produced as many as five (5) prosecution witnesses.

4. After completion of the prosecution evidence, statement of the appellant, as envisaged under Section 342, Cr.P.C. was recorded by the learned trial Court. He professed his innocence and pleaded false implication in the case. He neither opted to get his statement recorded under Section 340(2), Cr.P.C., nor did he produce any defence evidence. Upon completion of trial, the learned trial Court having found the case against the appellant to have been proved beyond any reasonable shadow of doubt, convicted and sentenced him as mentioned and detailed above.

5. Arguments heard, record perused.

6. The main crux of arguments advanced by learned counsel for the appellant is that chain of safe custody of recovered contraband in this case could not be established during the course of trial. While elaborating his arguments learned counsel contended that according to prosecution version the complainant handed over the case property to Altaf Hussain SI (PW.5) but according to him same was handed over to Ghulam Mustafa 447/C, CIA, who was not produced as a witness during the course of trial. In order to evaluate the contention of learned counsel for the appellant, we have minutely scrutinized the material available on record and observed that while making his statement during the course of trial Altaf Hussain, S.I. (PW-5)/Investigating Officer stated that the complainant handed over case property to Ghulam Mustafa 447/C, CIA. Relevant extract out of his statement is reproduced as under:

“Rasheed Ahmad Inspector/complainant handed over case property of this case i.e. two sealed parcels as sample and two sealed parcels as case property of he**ine along with sale proceed Rs. 3,380/- to Ghulam Mustafa 447/C, CIA.”

Description: BHowever, surprisingly said Ghulam Mustafa was neither cited as a witness in the calendar of witnesses nor his statement was recorded during the course of trial. When confronted learned Deputy Prosecutor General also frankly conceded this aspect. Hence, as rightly pointed out by learned counsel for the appellant, safe custody of the case property in this case had been compromised. The law on the subject is very much settled that the prosecution is under bounden duty to establish every limb of safe custody of the recovered contraband and in case it is not established beyond doubt, the same cannot be used against the accused. There is force in the contention that the chain of safe custody has not been indubitably established by the prosecution. The mechanism of chain of custody or safe custody and safe transmission of recovered contraband for forensic analysis has been elucidated in an elaborative manner by the august Supreme Court of Pakistan in Mst. Sakina Ramzan vs. The State - 2021 SCMR 451 in following terms:

The chain of custody or safe custody and safe transmission of narcotic drug begins with seizure of the narcotic drug by the law enforcement officer, followed by separation of the representative samples of the seized narcotic drug, storage of the representative samples and the narcotic drug with the law enforcement agency and then dispatch of the representative samples of the narcotic drugs to the office of the chemical examiner for examination and testing. This chain of custody must be safe and secure. This is because, the Report of the Chemical Examiner enjoys critical importance under CNSA and the chain of custody ensures that correct representative samples reach the office of the Chemical Examiner. Any break or gap in the chain of custody i.e., in the safe custody or safe transmission of the narcotic drug or its representative samples makes the Report of the Chemical Examiner unsafe and unreliable for justifying conviction of the accused. The prosecution, therefore, has to establish that the chain of custody has been unbroken and is safe, secure and indisputable in order to be able to place reliance on the Report of the Chemical Examiner.

In a recent judgment of august Supreme Court of Pakistan in Qaiser Khan’s Case[1] it has been held as under:

“The law in this regard is settled by now that if safe custody of narcotics and its transmission through safe hands is not established on the record, same cannot be used against the accused.”

It was also held in Zahir Shah alias Shat v. The State through Advocate-General, Khyber Pakhtunkhwa - 2019 SCMR 2004 that:

“This Court has repeatedly held that safe custody and safe transmission of the drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory must be satisfactorily established. This chain of custody is fundamental as the report of the Government Analyst is the main evidence for the purpose of conviction. The prosecution must establish that chain of custody was unbroken, unsuspicious, safe and secure. Any break in the chain of custody i.e., safe custody or safe transmission impairs and vitiates the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction”

In another recent verdict the prestigious Supreme Court of Pakistan extended benefit of broken chain of safe custody to appellant in Zubair Khan's Case[2] and acquitted him. In successive verdicts,[3] where chain of safe custody and transmission for forensic analysis was compromised, honorable Supreme Court of Pakistan extended the benefit of doubt to the appellants.

Description: C7. It is cardinal principle of law that the case carrying harder sentence must be proved through credible and persuasive evidence and transparent process in order to rule out the possibility of any error. Respectful reliance in this regard can be placed on the ratio decidendi rendered by august Supreme Court of Pakistan in Ameer Zeb's Case[4] as infra:

“Punishments provided in the Control of Narcotic Substances Act, 1997 were quite stringent and long, if not harsh, and, thus, a special care had to be taken that a Court trying such an offence had to be convinced that the entire quantity allegedly recovered from the accused person's possession was indeed narcotic substance. We, reverently and respectfully, tend to agree with the latter view and would like to add that the rule of thumb for safe administration of criminal justice is: the harsher the sentence the stricter the standard of proof.”

Description: D8. Moreover, it is cardinal principle of law that a single circumstance creating reasonable doubt would be sufficient to smash the veracity of prosecution case and the benefit of said doubt has to be extended in favour of the accused not as a matter of grace or concession but as a matter of right. Respectful reliance in this regard can be placed upon the ratio decidendi of august Supreme Court of Pakistan in the cases of Qaisarullah and others vs. The State 2009 SCMR 579 & Kamran Shah and others v. The State and others - 2019 SCMR 1217

Description: E9. In the circumstances discussed above, we are fully convinced that the prosecution has failed to prove its case against the appellant beyond reasonable doubt, therefore, while allowing Crl. Appeal No. 94/2017, the conviction and sentence recorded by the learned trial Court are set aside and the appellant is acquitted of the charge in case FIR No. 560/2015, dated 19.12.2015, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered with Police Station Danewal Vehari, while extending him benefit of doubt. He is directed to be released forthwith if not required in any other case.

10. Before parting with the judgment, it would be advantageous to identify the root cause of failure of prosecution against the drug pushers as matter of routine due to flawed investigation and shoddy prosecution. Foremost cause of acquittal in narcotics cases is absence of chain of safe custody despite of the fact that apex Court of this Count

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