Muhammad Hazir vs The State

SARDAR TARIQ MASOOD, J. The appellant Muhammad Hazir faced trial in case FIR No. 126 dated 10.02.2015 registered under section 9(c) of the Control of Narcotic Substances Act, 1997 (`Act 1997') at Police Station City Mardan. After a full-fledged trial, learned trial court vide judgment dated 19.05.2016 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 six 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 19.09.20.18. Hence, this appeal by leave of the court granted on 25.04.2022.

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 neither the safe custody nor the safe transmission of the sealed sample parcels to the concerned Forensic Science Laboratory was established by the prosecution because neither the Moharrar nor the Constable Shah Said (FC-2391) who deposited the sample parcels in the concerned laboratory was produced. It is also a circumstance that recovery was affected on 10.02.2015 whereas the sample parcels were received in the said laboratory on 13.02.2015 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), Ekramullah 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 conviction and sentence of appellant Muhammad Hazir passed by the trial court and upheld by the High Court, is hereby set aside and he is acquitted of the charge in the instant case. He be released from jail forthwith if not required to be detained in any other case.