Hussain Khan vs The State
This criminal appeal by leave of the Court challenges the judgment of the Peshawar High Court upholding the appellant's conviction and sentence under section 9(c) of the Control of Narcotic Substances Act, 1997. The core legal question before the Supreme Court was whether the prosecution established the safe custody and safe transmission of narcotics sample parcels beyond a reasonable doubt when there was an unexplained delay in sending the samples to the chemical examiner and essential official witnesses were not produced. The Supreme Court allowed the appeal, set aside the impugned judgment, and acquitted the appellant by giving him the benefit of the doubt. The holding establishes that failure of the prosecution to prove safe custody and safe transmission of sample parcels—specifically through the non-production of crucial witnesses who handled the Malkhana and delivered the parcels—creates a fatal loophole, preventing the prosecution from proving its case beyond reasonable doubt.
- Does an unexplained delay in sending sample parcels to the chemical examiner vitiate the prosecution's case under the Control of Narcotic Substances Act, 1997?
- Is the non-production of the Malkhana moharrar and the official who delivered the sample parcels fatal to the prosecution's case?
- Whether the failure to establish safe custody and safe transmission of sealed sample parcels entitles the accused to the benefit of the doubt and acquittal?
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 382-B, Code of Criminal Procedure 1898
SARDAR TARIQ MASOOD, J. Through instant appeal by leave of the Court, the appellant has impugned the judgment dated 24.02.2016 of the Peshawar High Court, Peshawar, whereby appeal filed by him was dismissed and his conviction and sentence awarded by the trial Court under section 9(c) of the Control of Narcotic Substances Act, 1997 (' Act, 1997'), was maintained.
2. Precisely, facts of the case are that the appellant faced trial in case FIR No.1147/2012 registered on 06.09.2012 at Police Station Charsadda, under section 9(c) of the Act. On conclusion of trial, he was convicted under section 9(c) of the Act and sentenced to life imprisonment with a fine of Rs.3,00,000/- or in default thereof to further undergo six months' simple imprisonment. Benefit of section 382-B of the Code of Criminal Procedure, 1898 was also extended to him. Appeal filed by him before the Peshawar High Court, Peshawar was dismissed. Hence, this appeal by leave of the Court granted on 11.11.2020 to re-appraise the evidence.
3. Heard and perused the record. It has been observed by us that recovery was effected on 06.09.2012 whereas sample parcels were received in the office of chemical examiner on 12.09.2012 without any plausible explanation as to where remained these sample parcels from 06.09.2012 to 12.09.2012. The safe custody and safe transmission of the sealed sample parcels have also not been established by the prosecution as Moharrar, who kept the sample parcel in the Malkhana and the concerned Constable (FC No.346), who delivered the same parcel to the office of Justice through Science Forensic Science Laboratory, Police Investigation, Khyber Pakhtunkhwa, Peshawar, were not produced by the prosecution. This Court in the cases of Qaiser Khan v. The State through Advocate-General, Khyber Pakhtunkhwa Peshawar (2021 SCMR 363), Mst. Razia Sultana v. The State and another (2019 SCMR 1300), The State through Regional 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) has held that in a case containing the above mentioned defect 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.
4. For the forgoing reasons, this appeal is allowed. The impugned judgment is set aside and the appellant Hussain Khan, while giving him the benefit of doubt, is acquitted of his charge in the instant case. He be released from jail forthwith, if not required to be detained in connection with any other case.