Qaiser Khan vs The State through Advocate-General, Khyber Pakhtunkhwa, Peshawar

MAZHAR ALAM KHAN MIANKHEL, J.---The police party headed by SHO Police Station Mattani, District Peshawar while on combing patrol, interc epted one motorcyclist Qaiser Khan, the petitioner , and on checking and search some 15 kgs. charas was recovered which was taken into possession along with motorcycle vide recovery memo Exh.P .W.2/ 1. Ishrat Yar Khan, SHO, the complainant and recovery officer (P.W.3), after separating and sealing sample parcels and the remaining contraband into separate sealed parcel, drafted the murasila Exh.P .A./1, accused-petitioner was arrested and was sent to Police Station through Wahab Ali Constable for registration of the FIR. Hidayat Khan, ASI (P.W.4), in the Police Station registered the FIR bearing No.424 dated 09.12.2012 under section 9(c) of the Control of Narcotic Substances Act, 1997 (C.N.S.A., 1997) against the petitioner . He is completely silent regarding receipt of sealed parcels of narcotics and even he does not mention that the accused/petitioner brought by W ahab Ali Constable.

2. After investigation and submission of challan, the accused was sent to the Court of Additional Sessions Judge- IV/JSC, Peshawar to face trial. After a regular trial, the trial Court vide its judgment dated 30.09.2013 convicted the accused under section 9(c) of the C.N.S.A., 1997 and sentenced him to rigorous imprisonment for life with fine of Rs.30,000/- (thirty thousand) or in default thereof to suffer simple imprisonment for four months. Benefit of section 382-B, Cr.P.C. was extended to him. Being aggrieved, the petitioner filed appeal before the High Court which was dismissed through the impugned judgment dated 15.09.2016. Hence the instant petition for leave to appeal.

3. Learned counsel for the petitioner as well as the learned counsel for the State was heard and record of the case was perused.

At the very outset, we have observed that allegedly the recovered narcotics were shifted from the spot to the police station through one Wahab Ali Constable but the record would show that neither the statement of the said official was recorded nor was he produced as a witness to support the safe transmission of the alleged recovered narcotics to police station. Shah Rasool Khan, S.I. the I.O. of this case, appear ed as P. W.1. He, in his cross- examination, stated that when he reached at the spot, the case property and the accused were shifted to the Police Station through Wahab Ali Constable but he too did not record his statement in this regard and that he even did not know as to who took the samples to the FSL. The record shows that there is nothing on the record to establish that to whom the alleged recovered narcotics were handed over in the police station for safe custody . The Forensic Report reflects that the alleged narcotics were received in the laboratory on 11th December , 2012 but evidence on the record is silent that where the same remained for two days i.e. from 9th December , 2012 to 11th December , 2012. Similarly evidence regarding safe transmission of alleged recovered narcotics to the laboratory for chemical analysis is also missing. 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.

Reliance in this regard can well be place d on the cases of Mst. Razia Sultana v. The State and another (2019 SCMR 1300 ) and The State through Regional Director , ANF v . Imam Bakhsh and others (2018 SCMR 2039 ).

4. In view of what has been discussed above, this petition is converted into appea l and the same is allowed. The appellant Qaiser Khan is acquitted of the charge framed against him in this case . He is ordered to be released forthwith if not required to be detained in any other case.