Mst. Humaira Versus State

Khadim Hussain Soomro, J .--- Through this criminal appeal, the appellant has assailed the judgment dated 31.01.2026, passed by the learned Special Judge CNSA-West, Islamabad, whereby the appellant was convicted in case FIR No. 406, dated 11.08.2023, under section 9(1)3(c)/15 of the CNSA 1997, P.S Shams Colony, Islamabad, and sentenced to suffer "Rigorous Imprisonment for ten years" and to pay a fine of Rs.4,00,000/-, in default whereof to serve out simple imprisonment for four months, with the benefit of Section 382-B Cr.P.C.

2. Brief facts of the case leading to this appeal are that on 11.08.2023, the complainant, S.I Waqar Ahmed, along with other police officials, was busy checking at about 09:25 p.m. at New Bokra, Islamabad, when a spy informed that the tenant of Wakeel Shah, namely Aqeel Shah, used to bring a huge quantity of charas and sell the same. After obtaining a search warrant from AC Pothohar, they searched the house with the help of lady constables, and during the search, Mst. Humaira wife of Aqeel Shah, produced a blue-colored shopping bag lying under the bed. She said the shopping bag contained charas, which her husband, Aqeel Shah, brought from Peshawar to sell. Upon opening the shopping bag, two packets of charas wrapped in yellow solution tape were recovered. Both the packets contained 3330 grams of charas. However, 10 grams of charas from each packet were segregated for the chemical examiner, and the remaining property was sealed on the spot. The mashirnama was prepared on the spot. The accused and the recovered property were then brought to the Police Station, where the complainant registered the FIR against the accused on behalf of the State. After the usual investigation, the case was challaned.

3. After supplying the case papers to the accused, the formal charge was framed against her by the learned trial Court, to which she did not plead guilty and claimed to be tried. On 09.01.2025, the charge was amended after the arrest of co-accused Aqeel Shah, to which they did not plead guilty and claimed trial.

4. In order to establish the accusation against the appellant, the prosecution examined PW-1/mashir HC Shifa Ullah, PW-2/Moharar Maalkhana ASI Sajid Hussain, PW-3/Duty Officer S.I Sohail Nasir, PW-4/complainant S.I Waqar Ahmed, PW-5/mashir Constable Irfan. They produced the relevant documents. Thereafter, the learned Special Public Prosecutor closed the prosecution's side of the evidence.

5. The appellant, in her statement recorded under section 342 Cr.P.C, has denied the allegations levelled against her, pleading her innocence. However, the accused neither examined herself on oath nor-led any evidence in her defense.

6. The learned trial Court, after evaluating the material brought on record and hearing the counsels for the parties, acquitted co-accused Aqeel Shah, whereas it convicted and sentenced the appellant/accused through the impugned judgment, as discussed above.

7. Learned counsel for the appellant contend that the entire prosecution case is based upon a highly doubtful recovery allegedly effected from a residential house, whereas the appellant was neither present at the spot nor was any contraband recovered from his personal possession. It is argued that the alleged recovery was produced by Mst. Humaira, who merely stated that the charas belonged to her husband, Aqeel Shah. Such statement, being in the nature of a statement made to police officials, carries no independent evidentiary value and cannot be treated as substantive evidence against the appellant. Learned counsel would further submit that no independent witness from the locality was associated with the search and recovery proceedings, despite the fact that the alleged recovery was effected from a populated residential area. It is also argued that the prosecution has failed to establish conscious possession of the appellant over the recovered contraband and that mere tenancy or residence in the house is insufficient to connect her with the alleged offence. The learned counsel further contented that the prosecution's evidence suffers from material discrepancies and does not inspire confidence; therefore, the appellant is entitled to the benefit of doubt as a matter of right and not of grace.

8. Conversely, learned State Counsel submits that the prosecution has successfully established the charge against the appellant through trustworthy and confidence-inspiring evidence. It is argued that, acting upon credible spy information, the police party lawfully obtained a search warrant from the competent authority and conducted a search in accordance with the law. During the search, a substantial quantity of charas weighing 3330 grams was recovered from the residence of the appellant. The contraband was produced by none other than the appellant Mst. Humaira, who specifically disclosed that the narcotics had been brought by the co-accused/her husband from Peshawar for sale. Learned State Counsel further submits that the recovered narcotics were duly sealed on the spot, samples were secured and transmitted to the Chemical Examiner, whose report confirmed the recovered substance to be charas. It is contended that official witnesses have no enmity or ulterior motive to falsely implicate the appellant in such a serious offence. The recovery of a huge quantity of narcotics from the appellant's residence, coupled with the positive chemical report and the unshaken testimony of the prosecution witnesses, fully establishes the appellant's conscious possession and involvement in narcotics trafficking. Therefore, the conviction recorded by the learned trial Court calls for no interference.

9. We have considered the above arguments and perused the record. The careful reappraisal of the material brought on the record indicates that the prosecution's evidence suffers from material contradictions regarding safe custody and the transmission of the alleged contraband. PW 2 Sajid Hussain, Moharrar Malkhana, stated in examination in chief that on 11.08.2023, the Investigating Officer handed over to him four sealed parcels, including two sample parcels and two parcels of remaining charas, which he kept in safe custody. However, in cross-examination, he admitted that in Ex.DA, it was not mentioned that he was Moharrar Malkhana on 11.08.2023, nor was it mentioned that the remaining case property was handed over to him by the Investigating Officer. He further admitted that entry No. 816/23 Ex. DB does not mention the date of handing over of the case property to him, and, as per Ex. DB, the case property was handed over to him after 17.08.2023. This admission casts serious doubt on the alleged safe custody of the case property from 11.08.2023 until its onward transmission. In the case of Qaiser and others v. The State (2022 SCMR 1641), the Supreme Court of Pakistan, in paragraph No. 4 of the judgment, has observed that in the absence of establishing secure custody and transmission, the possibility of tampering cannot be discounted. The chain of custody for sample parcels commences from the seizure of narcotics by the police, including the separation of representative samples, their dispatch to the Malkhana, and subsequent transmission to the testing laboratory. This chain of custody and transmission is crucial as it forms the foundation of the Act of 1997 and the Control of Narcotic Substances (Government Analysts) Rules 2001 (Rules 2001). It is incumbent upon the prosecution to ensure the safe and secure handling of this chain of custody, given the critical importance of the chemical examiner's report under the Act of 1997. Any breach in this chain, whether in the safe custody or transmission of representative samples, renders the chemical examiner's report unreliable and unsuitable for substantiating the conviction of the accused. Such a lapse by the prosecution introduces doubt and undermines the conclusiveness and trustworthiness of the chemical examiner's report. The relevant paragraph of the judgment is reproduced as under:-

"In absence of establishing the safe custody and safe transmission, the element of tempering cannot be excluded in this case. The chain of custody of sample parcels begins from the recovery of the narcotics by the police including the separation of representative samples of the recovered narcotics, their dispatch to the Malkhana and further dispatch to the testing laboratory. The said chain of custody and transmission was pivotal as the entire construct of the Act 1997 and the Control of Narcotic Substances (Government Analysts) Rules 2001 (Rules 2001), rests upon the report of the analyst. It is prosecutions bounded duty that such chain of custody must be safe and secure because the report of chemical examiner 2325 enjoined critical importance under the Act 1997, and the chain of custody ensure the reaching of correct representative samples to the office of chemical examiner. Any break in the chain of custody i.e. the safe custody or safe transmission of the representative samples, makes the report of chemical examiner worthless and un-reliable for justifying conviction of the accused. Such lapse on the part of the prosecution would cast doubt and would vitiate the conclusiveness and reliability of the report of chemical examiner."

10. The recovery memo. also appears doubtful. PW 3 admitted that the time of occurrence in the recovery memo. is still blank. PW 5 Irfan also admitted that the place and time are blank on the recovery memo, Ex. PC, PW 4 Waqar Ahmed, the complainant/recovery witness, likewise admitted that the time in the recovery memo. is still blank and that in the complaint, the time appears to have been mentioned with a different pen. Such omissions are not minor irregularities. In a narcotics case, where the prosecution is required to prove every link of recovery, sealing, custody, and transmission with certainty, the absence of time in the recovery memo. and the subsequent interpolation in the complaint cast doubt on the recovery proceedings.

11. The legality and manner of search are also doubtful. PW 4 admitted that search warrants were not obtained from the Special Judge under the CNSA, 1997. The alleged recovery was effected from a house, not from the appellant's personal possession. In such circumstances, it was incumbent upon the prosecution to establish, through cogent and independent evidence, the nexus between the premises and the appellant so as to prove his conscious and exclusive possession thereof. However, the prosecution has miserably failed to discharge this burden. Neither the number nor the complete particulars of the house allegedly owned by Wakeel Shah were brought on record. No title document, ownership record, tenancy agreement, rent deed, or any other documentary evidence was produced to establish that the house belonged to Wakeel Shah or that the same had been rented out to Aqeel Shah. Likewise, neither the statement of Wakeel Shah nor any documentary proof regarding the tenancy was brought on record. Significantly, the Investigating Officer also failed to record the statements of any adjoining owners or neighboring residents who could have independently confirmed that the appellant was residing in, occupying, or exercising control over the premises from where the alleged contraband was recovered. Thus, the prosecution's evidence is completely silent on the most crucial aspect of the case, namely, the connection of the appellant with the house in question. In the absence of any reliable evidence establishing possession, tenancy, ownership, occupation, or control of the premises by the appellant, the foundational link necessary to attribute conscious possession of the alleged narcotics to her remains wholly unproven, thereby creating a serious dent in the prosecution's case and rendering the alleged recovery highly doubtful.

12. There is further contradiction regarding the blue shopper allegedly containing the charas. PW 4 admitted in cross-examination that the blue shopper was neither made part of the parcels nor taken into possession through the recovery memo. Since the prosecution's case itself is that Mst. Humaira produced a blue shopper from under the bed, and the contraband was recovered from it. Non-production and non-recovery of the very container from which the narcotics were allegedly recovered is a serious infirmity. This omission creates doubt about the alleged mode and manner of recovery.

13. After reassessing the evidence presented by the prosecution, which, as discussed above, is based on material contradictions, improbabilities/ infirmities, and irregularities with respect to very crucial and vital points, we conclude that the prosecution has not proven its case against the appellant beyond a reasonable doubt and that multiple circumstances creating doubt are not required to extend the benefit of the doubt. If a single circumstance raises a reasonable doubt in the mind of a prudent person about the guilt of the accused, the accused will be entitled to such benefit not as a matter of grace and concession but as a matter of right, as has been held in the case of Tariq Pervez v. The State, reported as (1995 SCMR 1345), wherein the Honourable Supreme Court of Pakistan held as follows:-

"The concept of benefit of doubt to an accused person is deep-rooted in our country for giving him if there is a situation that raises reasonable doubt in the opinion of a wise person regarding the accused's guilt, the accused will be entitled to the benefit not as a matter of grace and concession, but as a matter of right. "The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048). The exact same reasoning was reiterated in the case of Abdul Jabbar v. State (2019 SCMR 129) when the apex court held that once a single loophole is observed in a case presented by the prosecution, such as a discrepancy between the ocular account and medical evidence or the presence of doubtful eye-witnesses, the benefit of such loophole or lacuna in the prosecution's case automatically goes in favour of an accused."

14. It is also a well-established principle of criminal administration of justice that no conviction may be handed to an accused unless and until the prosecution presents credible, trustworthy, and unimpeachable evidence with no contradiction throwing doubt on the validity of the prosecution's account. In the present case, we believe that the prosecution's account is shrouded in dense mists of doubt, and that the learned trial Court did not examine the evidence in its proper context, arriving at an incorrect res lt by finding the appellant is guilty of the charge. As a result, and for the foregoing reasons, the conviction and sentence awarded by the learned trial Court against the appellant is not sustainable. Consequently, the appeal is allowed, impugned judgment dated 31.01.2026, passed by the learned Special Judge CNSA-West, Islamabad, is set aside. Appellant Humiara is acquitted of the charge. These are the detailed reasons of our short order.

JK/14/Isl. Appeal allowed.