This criminal appeal, brought by leave of the Court, challenged the judgment of the Peshawar High Court upholding the conviction and life imprisonment of the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997. The core legal questions pertained to the evidentiary value of narcotics recovery when prosecution fails to establish safe custody and safe transmission of samples, fails to prove vehicle ownership, and fails to produce the recovered vehicle or its remnants. The Supreme Court allowed the appeal, set aside the conviction, and acquitted the appellant by extending the benefit of doubt. The Court held that failure to produce the Moharrar or the constable depositing samples, unexplained delay between recovery and receipt at the laboratory, and absence of evidence regarding safe custody create a clear risk of tampering. Consequently, such fatal prosecutorial defects prevent the prosecution from establishing its case against the accused beyond reasonable doubt.
SARDAR TARIQ MASOOD, J.
Criminal M.A. No. 1305 of 2016 For the reason set out in the instant application for condonation, of delay, same is allowed and the delay is condoned.
Criminal Appeal No.675 of 2020
2. The appellant Ishaq faced trial in case FIR No. 562 dated 17.07.2010, offence under section 9(c) of the Control of Narcotic Substances Act, 1997 (`Act, 1997') registered at Police Station Badhber, Peshawar'. After a full-fledged trial, learned Judge Special Court, Peshawar vide judgment dated 15.11.2012 convicted the appellant under section 9(c) of the Act, 1997 and sentenced him to imprisonment for life with fine of Rs.1,00,000/- or in default of payment of fine to further undergo three months simple imprisonment. Benefit of section 382-B, Cr.P.C. was also extended to him.
Aggrieved of his conviction and sentence, appellant filed a Criminal Appeal before the Peshawar High Court, Peshawar which was dismissed vide impugned judgment dated 30.10.2014. Hence, this appeal by leave of the court granted on 09.11.2020.
3. After hearing the learned counsel for the appellant as well as the learned state counsel and perusing the available record along with the impugned judgment with their assistance, it has been observed by us that the vehicle from which the narcotics were recovered was never produced before the court with a lame excuse that the vehicle was burnt but even no part etc. thereof was produced. We also observe that the ownership of the said vehicle was never ascertained by the prosecution. The most important thing we observe is that neither the safe custody nor the safe transmission of the sealed sample parcels to the concerned laboratory was established by the prosecution because neither the Moharrar nor the Constable concerned (FC-3746) who deposited the said parcels in the concerned laboratory was produced. It is also a circumstance that recovery was effected on 17.07.2010 whereas the sample parcels were received in the said laboratory on 20.07.2010 and prosecution is silent as to where remained these sample parcels during this period, meaning thereby that the element of tampering with is quite apparent in this case. 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 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 Ishaq, while giving him 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.