Jamal-ud-Din Versus State

Inam Ullah Khan, J .--- The instant appeal under Section 24 of the Khyber PalchtunIchwa Control of Narcotics Substances Act, 2019 ("the Act") has been preferred by the appellants, Jamal ud Din and Abdul Naafay, against the judgment dated 30.04.2024, passed by the learned Additional Sessions Judge-VI/JSC, Dera Ismail Khan, in FIR No. 27, dated 21.09.2022, registered under Section 9(d) of the Act at Police Station Mughal Kot, D.I. Khan. Through the impugned judgment, the appellants were convicted under Section 9(d) of the Act and sentenced to rigorous imprisonment for life, along with a fine of Rs. 1,000,000/- (Rupees one million only) each, or in default thereof, to undergo six months' simple imprisonment. The benefit of Section 382-B of the Code of Criminal Procedure was extended to them.

2.As per the prosecution, on 21.9.2022, on the direction of the DPO, D.I.Khan, the complainant SHO Taib Din Khan along with police party, under the supervision of DSP Abid Iqbal, set up a barricade at Dera Zhob Road, Mughal Kot Police Picket for the purpose of checking. At approximately 11:20 a.m., a Hino truck bearing registration number TKF-241 (Quetta) arrived from the Zhob side and was intercepted. The driver identified himself as Jamal ud Din, while the other person on the front seat introduced himself as Abdul Naafay (appellants). During a search of the truck, two stepney tyres affixed to the truck's body were found to be emitting an unusual smell resembling charas. Upon dismantling, 75 packets of charas were recovered - 40 from one tyre and 35 from the other - each weighing 1,200 grams, totaling 90 kilograms. The appellants were arrested on the spot, and the recovered contraband charas and the truck were taken into possession. The occurrence was documented through a murasila, which formed the basis for the registration of the aforementioned FIR.

3.Upon completion of the investigation, a report under Section 173 Cr.P.C was submitted. The appellants were formally charged, to which they pleaded not guilty and claimed trial. The prosecution examined a total of nine (09) witnesses to substantiate its case.

4.Following the closure of the prosecution's evidence, the appellants were examined under Section 342 Cr.P.C. They denied the allegations and claimed innocence, asserting false implication in the case. However, they neither opted to record statements under oath as envisaged under Section 340(2) Cr.P.C nor did they adduce any evidence in their defence.

5.At the conclusion of the trial, the learned trial court convicted and sentenced the appellants as mentioned above. Feeling aggrieved, the appellants filed the instant appeal before this Court.

6.Learned counsel for the appellants contended that the appellants have been falsely implicated in the case and that the entire prosecution case is riddled with material contradictions and procedural irregularities, which render the prosecution's version doubtful and untrustworthy. It was argued that the prosecution failed to establish a safe and unbroken chain of custody of the recovered contraband, which is a mandatory requirement in narcotics cases. Learned counsel further submitted that the recovery proceedings were not recorded through any videographic means, despite the fact that the alleged recovery took place in a public place during broad daylight and in the .presence of several police officials, thereby raising doubts regarding the genuineness of the recovery. It was also emphasized that the delay in recording the statement of the supervisory officer (PW-9) under Section 161 Cr.P.C, after submission of the final report under Section 173 Cr.P.C, reflects manipulation and afterthought. Moreover, the FSL report is defective and does not comply with the mandatory provisions of Rule 6 of the Control of Narcotic Substances (Goverment Analysts) Rules, 2001, as separate tests were not conducted or reported for each packet. Learned counsel relied on various judgments of the Hon'ble Supreme Court and argued that the benefit of doubt must be extended to the appellants as a matter of right.

7.On the other hand, the learned Additional Advocate General appearing for the State supported the conviction and argued that the recovery of a substantial quantity of charas from the hidden cavities of the vehicle, in which both appellants were travelling, was duly proved by the prosecution witnesses. He contended that the prosecution discharged its burden by establishing the presence of the appellants at the scene, their arrest on the spot, and the seizure of narcotics from a vehicle under their control. Learned Law Officer maintained that minor contradictions in the statements of prosecution witnesses do not affect the core of the prosecution's case and that the trial court rightly appreciated the evidence and convicted the appellants in accordance with law. He prayed for the dismissal of the appeal.

8.We have heard the learned counsel for the appellants as well as the learned Additional Advocate General representing the State. The record has been carefully perused and examined in light of the respective submissions made before us.

9.The record reveals that numerous material contradictions surfaced among the prosecution witnesses regarding the timeline and operational details. PW-7 (complainant) stated that they were present at the barricade since 06:15 AM, while PW-4 claimed presence from 08:00 AM, and PW-8 stated barricade began around 09:00 or 10:00 AM. PW-5, tasked with conveying the murasila, stated they began naqabandi at 10:20 AM. PW4 and PW-8 mentioned the packets were wrapped in yellow tape, whereas PW-7 referred to white tape. There was also no explanation or evidence provided regarding the tools allegedly used for dismantling the tyres-no such tools were exhibited, nor did the witnesses offer a consistent account in this regard.

10.The recovery memo (Ex.PW-411) bears signatures of its marginal witnesses in Urdu, whereas PW-8's CNIC (Ex.PW-8/D-1) bears his signature in English, raising doubts about the authenticity of his endorsement. Additionally,. PW-7's handwriting on key documents also varied significantly, for which no plausible explanation was offered. Another noteworthy aspect is the affixation of monograms on the case property. Although PW-7 claimed to affix monogram "YM" seals on the parcels, the said initials do not correspond to his name. This raises a presumption - particularly in light of Akhtar lqbal v. The State (2015 SCMR 291) - that the seal belonged to another official (likely HC Yamin Khan), thereby weakening the evidentiary sanctity of the case property.

11.The prosecution failed to establish the unbroken chain of custody, a requirement emphasized in Mst Sakina Ramzan v. The State (2021 SCMR 451), wherein the Hon'ble Supreme Court held that any break or gap in the safe transmission of narcotics or their representative samples renders the chemical examiner's report unsafe and unreliable.

12.PW-3, the police constable tasked with delivering the samples to the FSL, was handed over the samples at 10:00 AM on 22.09.2022, but claimed to have departed at 12:00 midnight a serious discrepancy. The FSL received the samples only on 23.09.2022, yet no plausible explanation was offered regarding their interim storage or secure transit. Moreover, Register No.19 (Ex.PW-2/3 and Ex.PW-2/4) lacks essential entries - no date/time of receiving case property, no signatures of the I.O., no monogram descriptions, and no acknowledgment by the carrier (PW-3). The road certificate (Ex.PW-2/1) was prepared by HC Yameen, who was not examined, depriving the document of evidentiary weight.

13.The FSL Report (Ex.PK) consolidated results of multiple samples without separately analyzing each one. This is a direct violation of Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, which requires that:

In The State through Regional Director ANF v. Imam Bakhsh (2018 SCMR 2039), the Apex Court observed:

The failure of the analyst to perform and report separate tests on each sample has destroyed the evidentiary value of the report, which is central to conviction in narcotics cases.

14.Though PW-7 claimed to have separated 5 grams of charas from each packet for chemical analysis, this crucial detail finds no mention in the murasila (Ex.PA/1). The omission creates a serious gap in the prosecution's narrative and further undermines the authenticity of the recovery and sampling procedure.

15.Although DSP Abid Iqbal (PW-9) was purportedly present at the time of occurrence, his statement under Section 161 Cr.P.C. was recorded more than a month later, i.e., on 24.10.2022, while the complete challan was submitted on 25.09.2022. Such unexplained and inordinate delay renders his testimony inherently unreliable, as held in Muhammad Asif v. The State (2017 SCMR 486).

16.Another significant omission that dents the prosecution's case is the failure to prepare videographic evidence of the recovery proceedings. In recent years, especially in cases involving recovery of large quantities of narcotics, superior courts have repeatedly stressed the importance of employing modern investigative tools to ensure transparency and eliminate the possibility of planted evidence or manipulated recoveries. In sensitive cases involving recovery of commercial quantity contraband, videography or photography during the recovery, where feasible, can greatly enhance the credibility of the prosecution. In the instant case, where the alleged recovery was made in broad daylight at a public place and in the presence of multiple officials, there existed no apparent impediment in recording the process through mobile phone or other digital means. The failure to do so, without any justification, raises a presumption that the prosecution deliberately avoided creating real-time evidence, which could either have corroborated or contradicted their version. This lapse further erodes the prosecution's credibility and casts serious doubt on the authenticity of the alleged recovery. Reliance is placed on Zahid Sarfaraz Gill v. The State (2024 SCMR 934), Ali Haider alias Papu v. Jameel Hussain and others (PLD 2021 Supreme Court 362), Mian Khalid Perviz v. The State through Special Prosecutor ANF and another (2021 SCMR 522).

17.It is a settled principle of criminal jurisprudence that the prosecution must prove its case against an accused beyond reasonable doubt, and any doubt arising from the prosecution's own case must be resolved in favour of the accused. Reliance is placed on Ahmed Ali and another v. The State (2023 SCMR 781), wherein the Hon'ble Supreme Court held:

18.In the present case, the prosecution has failed to establish the safe and secure chain of custody, the integrity of the chemical examination process, and has exhibited material contradictions and glaring procedural lapses, thereby shaking the foundation of its case.

19.For the foregoing reasons, we are of the considered view that the prosecution has miserably failed to prove its case against the appellants beyond reasonable doubt. The learned trial Court while convicting the appellants has ignored or overlooked the material discrepancies highlighted by us in the preceding paragraphs. Consequently, the appeal is allowed, the impugned judgment dated 30.04.2024 is set aside, and the appellants, Jamal ud Din and Abdul Naafay, are acquitted of the charge while extending them the benefit of doubt. They shall be released forthwith if not required in any other case.

20.These are the detailed reasons for our short order announced on even date.

JK/121/P Appeal allowed.