AWAL KHAN vs STATE
This criminal appeal challenges the conviction and sentence of the appellant, Awal Khan, who was found guilty under Section 9(c) of the Control of Narcotic Substances Act, 1997, for the possession of 13 kilograms of charas. The prosecution alleged that the narcotics were recovered from the appellant's residential room following a police raid. The core legal question was whether the prosecution had successfully proven the guilt of the accused beyond a reasonable doubt, given the evidentiary gaps presented at trial. The Peshawar High Court held that the prosecution failed to establish its case. Key deficiencies included an unexplained delay in the transmission of samples to the Forensic Science Laboratory, the failure of the investigating officer to identify the official responsible for transporting the samples, and the absence of documentary evidence linking the appellant to the premises where the recovery occurred. Furthermore, contradictions regarding whether the house was locked undermined the prosecution's narrative. Consequently, the Court set aside the conviction and acquitted the appellant, emphasizing that the prosecution must prove its case through convincing and reliable evidence to sustain a conviction.
- Does an unexplained delay in sending samples to the Forensic Science Laboratory create a fatal lacuna in a narcotics case?
- Is the prosecution required to produce documentary evidence of ownership to prove possession of narcotics recovered from a house?
- Can a conviction be sustained when the prosecution fails to prove the chain of custody for seized contraband?
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 342, Code of Criminal Procedure 1898
Miss Musarrat Hilali, J.--The appellant stands convicted u/S. 9(c), CNSA and sentenced to 6 years RI with a fine of Rs,50,000/- or in default thereof to undergo further 6 months SI. The judgment of conviction was handed down by learned Additional Sessions Judge/Judge Special Court, Charsadda at Tangi on 21.12.2013.
2. There were complaints against the appellant, in terms, that he was dealing in narcotics business in his house. Believing the same to be true, after obtaining search warrant, the complainant along with other police contingent raided the house of appellant, who on seeing the police party fled away from the scene. However, during search 13 KGs chars was recovered from residential room of the appellant, kept in a sack, hence the case was registered.
3. After completion of investigation, the appellant was charge sheeted to which he did not plead guilty and claimed trial.
4. At the trial, in order to establish its case against the appellant, the prosecution examined 5 PWs in all, whereafter statement of accused was recorded u/S. 342, Cr.P.C., wherein, he denied the prosecution allegations and professed innocence. However, he neither wished to be examined on oath or produce evidence in his defence. The trial culminated in conviction and sentence of the appellant, which is under challenge in the instant appeal.
5. Heard. The record is suggestive of the fact that there were complaints against the appellant being dealing in narcotics business upon which the local police headed by SHO Noorullah Khan after obtaining search warrant raided his house, which led to the recovery of 13 KGs of chars, kept in a sack, from the residential room of the appellant.
6. In the instant case, the alleged recovery of 13 KGs of chars from residential room of the appellant was effected on 11.5.2011 while the samples thereof were received by the FSL on 20.5.2011. After going through the whole evidence, it is still not known as to where the samples remained between the dates when those were allegedly taken into possession from the residential room of the appellant and the date those were received by Forensic Science Laboratory. PW-3 Noorullah Khan, who was then posted as SHO PS Tangi, could not tell the date as to when samples were sent for analysis and which official had taken samples to the Laboratory. Further, none of the PWs have stated that they laid hand on any document i.e, electricity bill, sui gas bill or any revenue record showing ownership of the appellant with regard to house in question nor statements of inhabitants of the locality have been recorded in this respect. Again, as per prosecution version, the house of the appellant was locked from outside while as per statement of PW-4 Lady Constable Saba Gul that she did not remember whether the house of the appellant was locked or not. For conviction of accused, the prosecution has to prove its case through convincing and reliable evidence, which is missing in the instant matter. The lacunas noted above lead us to the conclusion that the prosecution has failed to substantiate its case against the appellant beyond reasonable doubt hence the conviction and sentence recorded by the learned trial Court is not sustainable in law, which requires reversal.
7. For the aforementioned reasons, this appeal is allowed. The conviction and sentence of the appellant Awal Khan son of Salamat Khan r/o Sogya Tehsil Tangi, District Charsadda recorded by learned Additional Sessions Judge/Judge Special. Court, Charsadda at Tangi, vide the impugned judgment dated 12.12.2013 is set aside. The appellant is acquitted of the charges levelled against and be set at liberty forthwith, if not required in any other case.
Those are the detailed reasons for our short order of even date.