Aitzaz Ahmad vs State etc
This criminal appeal challenges the conviction of the appellant for the possession of 2500 grams of charas, an offence under Section 9(C) of the Control of Narcotic Substances Act, 1997. The trial court had initially convicted the appellant and sentenced him to three years of rigorous imprisonment. The core legal question before the High Court was whether the prosecution successfully proved its case beyond reasonable doubt, specifically regarding the integrity of the recovered narcotic sample sent for chemical analysis. Upon review, the Court held that the prosecution failed to establish a secure chain of custody for the sample. Crucially, the official responsible for transporting the sealed parcel to the Chemical Examiner was not produced as a witness to testify that the sample remained intact and untampered during transit. Consequently, the Court set aside the conviction and acquitted the appellant. The judgment reinforces the principle that in criminal trials, the initial burden of proof rests heavily on the prosecution, and failure to prove the safe custody of recovered narcotics renders the chemical examiner's report unreliable, necessitating acquittal.
- Does the failure to examine the official who transported a narcotic sample to the chemical examiner create a fatal gap in the chain of custody?
- Can a conviction for narcotics possession be sustained if the prosecution fails to prove the sample remained untampered during transit?
- What is the effect of the prosecution's failure to prove the safe custody of a recovered narcotic sample on the reliability of the chemical examiner's report?
- Section 9(C), Control of Narcotic Substances Act 1997
- Section 382-B, Code of Criminal Procedure 1898
Miss Aalia Neelum, J.--The appellant-Eitzaz/Aizaz Ahmad son of Ghulam Muhammad, caste Malik, resident of Bhagiwal, P.S. Ellah Abad, Tehsil Chuni an, District Kasur , was involved in case F.I.R No. 291 of 2007, dated 09.06.2007, offence under Section 9(C) of the Control of Narcotic Substances Act, 1997 Registered at Police Station Ellah Abad, District Kasur and was tried by the learned Addy . Sessions Judge/Special Judge CNSA, Chunian, District Kasur . The learned trial Court seized with the matter in terms of judgment dated 13.02.2012, convicted the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to undergo 03-years rigorous Imprisonment with the direction to pay Rs. 25,000/- as fine and in case of default in payment thereof, to further undergo 06- months simple imprisonment. The benef it of Section 382-B, Cr.P.C. was also extended in favour of the appellant; Feeling aggrieved, the appellant has assailed his conviction through filing instant appeal.
2. The prosecution story as alleged in the F.I.R (Ex.PD) lodged on the complaint (Ex.PB) of Riaz Hussain S.I (PW- 3) the complainant is that on 09.06.2007, he (PW-3) alongwith Muhammad Ismail 412/C (PW-2), Muhammad Hanif 965/C and Muhammad Arshad 995/C (PW-1) was present at Chowk Rickshaw Adda Bhagiwal in connection with investigation of case registered under Section 13/20/65 A.O, when Aizaz Ahmad (the appellant) was apprehended and a shopper bag containing "Charas " (P-1) weighing 2500-grams was recovered from his right hand, which the complainant (PW-3) took into possession through recovery memo (Ex.P A). Out of the recovered substance, 10- grams charas was separated for chemica l analysis. The complainant (PW-3) drafted complaint (Ex.PB) and sent the same through Muhammad Hanif 965/C to the Police Station for registration of the formal FIR (Ex.PD).
3. After recording evidence and hearing the arguments advanced by the learned counsel for the appellant as well as the learned DDPP , the learned trial Court while evaluating the evidence available on record, found the version of the prosecution as correct beyond any shadow of doubt, which resulted into conviction of the appellant in the above stated terms.
4. We have heard the arguments advanced by the learned counsel for the appellan t as well as the learned Deputy Prosecutor General and have minutely perused the record available on the file.
5. In a criminal case trial, initial burden of proof is always on the prosecution and the said burden is quite heavy .
The prosecution has to prove its case beyond reasonable doubt. After a careful scrutiny of the material available on record, we come to a conclusion that the prosecution has not established link of Chemical Examiner report (Ex.PE) with the charas recovered from the possession of the appellant. This fact alone creates a ground to believe that the parcel of sample was not kept in safe condition and the claim of the prosecution that the parcel of sample was not tampered with is doubtful . As the Person Rehmat Ali, 521/Constable (not cited as witness)) who deposited the sealed parcel of the sample with the office of chemical examiner , Punjab, Lahore has not been examined by the prosecution. In absence of deposition of a person who carried the sealed parce l of the sample to the Chemical Examiner for the Punjab, Lahore, to the effect that the parcel of the sample remained intact and had not been tampered with it, conviction cannot be based and the conviction by the learned trial Court was liable to be set aside.
6. For the reasons stated above, it is held that prosecution has not been able to prove its case beyond all reasonable doubts against the accused appellant, Eitzaz/Aizaz Ahmad for the offence under Section 9(C) of The Control of Narcotic Substances Act, 1997. Thus, the findings of the learned Addl. Sessions Judge/Special Judge CNSA, Chunian, District Kasur , qua conv iction of the appellant-Eitzaz/Aizaz Ahmad for the above said offence are liable to be set aside and the same are set aside and as a consequence whereof, the appeal No. 439 of 2012 is accepted and the appellant-Eitzaz/Aizaz Ahmad is ordered to be acuitted of the charge in case F.I.R. No. 291 of 2007, dated 09.06.2007, offence under Section 9(C) of The Control of Narcotic Substances Act, 1997, registered at Police Station Ellah Abad, District, Kasur . The appellant-Eitzaz/Aizaz Ahmad is present on bail, therefore, his surety stands discharged.