Sajjad Khan Versus State

Muhammad Najam-ud-Din Mengal, J .--- This judgment disposes of Criminal Appeal No.(K) 16 of 2024 filed by the appellants (convicts) Sajjad Khan and Shah Wali both sons of Abdul Sattar, against the judgment dated 15th October 2024, ("the impugned judgment") passed by learned Special Judge/Additional Sessions Judge, Khuzdar ("the trial Court"), whereby the appellants were convicted under Section 9(2)9 of Control of Narcotics Substances, Act (Amendment) Act, 2022 ("the CNS Act, 2022") and sentenced to suffer life imprisonment R.I. with fine of Rs.20,00,000/- or in default thereof to further suffer S.I. for Six (06) months, with the benefit of Section 382-B, Cr.P.C.

2. Facts of the case are that on 31st March 2024, the complainant Din Muhammad, Dafedar lodged FIR No.06 of 2024 at Levies Station Wadh, District Khuzdar with the averments that on the said date he along with other Levies officials were checking the vehicles at Gaslity check post, Khuzdar in the meanwhile, at about 12:30 a.m. they stopped a Fielder Car bearing Registration No.BAL-460. On query, the driver disclosed his name as Sajjad Khan son of Abdul Sattar, while he was accompanied by Shah Wali son of Abdul Sattar. The search of vehicle in question was conducted, which resulted into 12 packets of Crystal total weighing 6-Kgs concealed in the secret cavities of the said Fielder.

3. In pursuance of above FIR, the appellants were arrested, investigated and on completion thereof, they were challaned in the trial Court, which indicted the charge and on denial by the appellants, the prosecution produced four (04) witnesses, whereafter the appellants were examined under Section 342, Cr.P.C. The appellants neither recorded their statements on oath under Section 340(2), Cr.P.C nor produced any witness in their defence. On conclusion of trial, the appellants were convicted and sentenced as mentioned above. Whereafter the instant appeal has been filed.

4. Heard learned counsel for the parties and perused the available record. Perusal of record reveals that it is a case of no evidence at all and the learned trial Court while delivering the impugned judgment has reached to a wrong conclusion by awarding conviction and sentence to the appellants. Anyhow, the prosecution in order to establish the charge has produced the evidence of four witnesses, who have not only contradicted each other on material counts, but also made several dishonest improvements. The complainant of the case Din Muhammad, Dafedar appeared as PW-1, who mostly reiterated the contents of his fard-e-bayan Ex. P/1-A, but however, to some extent he derailed from his earlier statement, thus contradicted the case of prosecution. In reply of question No.33 this witness stated that 12 packets of recovered substances were in square shape, while he showed his ignorance with regard to weighing the same at the spot. PW-2 Muhammad Ismail, Levies Sepoy is the witness of recovery memo. This witness, while contradicting the statement of PW-1 deposed that the recovered contraband consisting upon 12 packets were in round shape, contrary to the same complainant deposed that the same were in square shape. He further deposed that the I.O. conducted the recovery proceedings outside the Levies room at the eastern side, whereas PW-1 deposed that the I.O. completed the recovery proceedings inside the room of Levies Check post. PW-2 in reply of question No.27 admitted that his statement under section 161, Cr.P.C. and recovery memo. Ex.P/2-A are silent with regard to weighing each packet separately. PW-2 further admitted that the engine number of the produced Fielder in the trial Court is C60837, while the same was mentioned in the recovery memo. Ex.P/2-B as C611472. In response to question No.32 this witness admitted that chassis number of the vehicle in question was mentioned in the recovery memo. Ex.P/2-B as chassis No.NZE-144-6003072, whereas when the same was produced before the trial Court was having chassis bearing No.NZE-144-9003072. Meaning thereby the vehicle from which the alleged contraband was recovered has not been produced before the learned trial Court. Thus, such admissions and contradictory statements of the PWs created serious doubts in the case of prosecution.

5. The Incharge of Malkhana Inayatullah, Dafedar appeared as PW-3, according to him he on 31st March 2024 received the parcels from PW-4 Ghulam Haider, Naib Risaldar/I.O and he made entries whereof in the Register No.19 (Ex.P/3-A). In reply of question No.8 he admitted that the I.O. Ghulam Haider did not sign the Register No.19. He further admitted that the produced Register No.19 is not prepared according to Police Rules rather the same was manually made in a plain paper. In reply of question No.12 he stated that the produced Register No.19 Ex.P/3-A is silent with regard to transmission of sealed parcels for FSL. Besides, perusal of Register No.19 the column No.1 whereof with regard to handing over the parcels to any personnel of the police for onward transmission to the office of Chemical expert is blank; thus above aspect of the matter created serious doubts in the case of prosecution with regard to establishing of the safe custody and safe transmission of narcotics.

6. PW-4 Ghulam Haider, Naib Risaldar is the Investigating Officer of the case, who counted the steps taken by him during the course of investigation. The Investigating Officer has also contradicted the statements of rest of the witnesses during his cross-examination and admitted that when he reached at the place of occurrence, the recovered contraband was lying on floor near the vehicle in question, while contrary to the same complainant stated that the substances were lying on the back seat of the vehicle in question till the arrival of the I.O. In reply of question No.34 he stated that the recovery proceedings were completed at 04:00 a.m., while the same deposition was negated by the PW-3, who deposed that I.O. handed over him the parcels at 12:30 a.m. and his statement under Section 161, Cr.P.C. was recorded by the I.O. at 12:40 a.m.; thus a question arises here that according to the I.O. the recovery proceedings were completed at 04:00 a.m. then how the parcels can be handed over to the Incharge Malkhana three hours before. Furthermore, he also admitted that there is no facility of WAPDA and Solar system electricity, while his entire statement is silent that through which source of light they completed the recovery proceedings; such conduct and admission does not appeal to the logic, which created serious dents in the case of prosecution.

7. Besides, the columns 5 and 6 of the register No.19, which provides that every article placed in the store-room shall be entered and removal of any such article shall also be noted in the appropriate column, but in the case in hand, the perusal of register No.19 Ex.P/3-A does not bear the signatures of handing and taking over the samples. Even otherwise, the same did not contain the name of officials, who take-over the case property for onward transmission. Thus, above material discrepancies show that the prosecution has compromised the safe custody of the narcotics and created a reasonable doubt in the case of the prosecution. In this regard reliance is placed on the case of "Ahmed Ali and another v. The State, (2023 SCMR 781)" wherein held as under:

"Thus, the Police Rules mandate that case property be kept in the Malkhana and that the entry of the same be recorded in Register No. XIX of the said police station. It is the duty of the police and prosecution to establish that the case property was kept in safe custody, and if it was required to be sent to any laboratory for analysis, to further establish its safe transmission and that the same was also recorded in the relevant register, including the road certificate, etc. The procedure in the Police Rules ensures that the case property, when is produced before the court, remains in safe custody and is not tampered with until that time. A complete mechanism is provided in Police Rules qua safe custody and safe transmission of case property to concerned laboratory and then to trial Court.

8. Report of the Government Analyst under Section 36(2) of the CNSA is of pivotal importance in narcotics cases. In order to succeed, the prosecution is required not only to prove the factum of recovery, but also exhibit positive report of the Government Analyst drawn in accordance with law elucidated by the Hon'ble Supreme Court in the case titled as "The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039). In the case in hand, the report of the Chemical Examiner Ex.P/4-D is defective. The perusal of record reflects that twelve sealed parcels of Crystal were received in the office of Chemical Expert on 2nd April 2024, but instead of preparing separate reports for each sample containing details of the protocols applied, the Chemical Examiner drew up consolidated report for the aforesaid samples. This was a flagrant disregard of Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, which renders the reports nullity in the eye of law.

9. Admittedly, all the ingredients, guidelines and directions given by the Hon'ble Supreme Court with regard to safe custody of the recovered contraband and its safe transmission from the Police Station to the office of Forensic Science Laboratory have been violated. It is well settled proposition of law that when a specific method is provided for doing any legal act in a specified procedure, thus such act is required to be done in that manner, deviation from such procedure would amount to violating the law. Reliance in this regard is placed on the case of Muhammad Yousaf v. The State 2017 MLD 1471 (Balochistan).

10. Another important feature of the case is that the alleged recovery of contraband was effected from a Fielder Car bearing Registration No.BAL-460, but the prosecution has failed to establish the ownership of the appellant or his being as last possessor. In absence of any cogent and concrete evidence neither it can be presumed that the said Fielder Car was owned by the appellants or that the appellants are the last possessor of the same and also responsible for recovery of the contraband effected from the Car in question. Unless the prosecution establishes the ownership of the appellant in respect of Fielder Car, he could not be held responsible for the alleged recovery of contraband. The recovery of Crystal from the Fielder in question cannot ipso facto be proof of the guilt of the appellants unless possession and ownership of vehicle is proved against the appellants through confidence inspiring evidence, which is lacking

11. The reappraisal of statements of prosecution witnesses would divulge the fact that not only the same are contradictory with each other, but in order to cover up the lacunas certain dishonest improvements have also been made. Thus, the prosecution has miserably failed to substantiate the charge against the appellants beyond the shadow of reasonable doubt. The perusal of impugned judgment reveals that the same is suffering from misreading, non-reading and mis-appreciation of material available on record. The above defects in the prosecution case were not considered by the learned trial Court while passing the impugned judgment. It is well settled principle of law that a wrongful conviction results into injustice, the first tragedy is to the innocent person; the second is to the victim of the offence and to society, because the real offender is not brought to justice, wrong conviction undermine the credibility of the legal system, whenever witnesses are mistaken, it is rarely because they lie or misrepresent the facts. Needless to emphasize that accused were entitled to be extended benefits of doubt as a matter of right, but the same was withheld. Even an accused cannot be deprived of benefit of doubt, merely because there is only one circumstance, which creates doubts in the prosecution story, whereas in the case in hand there are series of doubts apparent from the statements of so-called eye-witnesses. Reliance in this regard is placed on the case of "Tariq Pervaiz v. The State" 1995 SCMR 1345.

For the above reasons, the appeal is accepted. The impugned judgment dated 15th October 2024 passed by learned Special Judge, CNS/Additional Sessions Judge, Khuzdar is set-aside and the appellants Sajjad Khan and Shah Wali, both sons of Abdul Sattar, are acquitted of the charge under Section 9(2)9 of Control of Narcotics Substances (Amendment) Act, 2022. The appellants being in custody; are ordered to be released forthwith, if not required in any other case.

JK/58/Bal. Appeal allowed.