Niaz Muhammad Versus State

Sardar Ahmad Haleemi, J .--- This criminal appeal is directed against the judgment dated 21st April, 2025 (hereinafter the "impugned judgment" ) passed by the learned Special Judge CNS/Additional Sessions Judge, Pishin (hereinafter the "trial Court" ), whereby the appellant was convicted under section 9(1)3(e) of the Control of Narcotic Substances Act, 1997 Amended Act, 2022 (hereinafter the "Act, 1997" ) and sentenced to suffer R.I imprisonment for twenty years with fine of Rs.800,000/-, and in default whereof to further undergo six months S.I. Benefit of section 382-B, Cr.P.C. was extended in favour of the appellant.

2.As per contents of the crime report No. 60/2024, on 02.10.2024, the complainant ASI Faiz-ud-Din, along with other police officials, while performing patrolling duty, received spy information through a mobile phone that a silver-coloured Toyota Vitz bearing Registration No. ACG-834 is coming from Barshore towards Pishin Bazar carrying narcotics. Pursuant to the said information, the police party established a blockade at Barshore Road near Shoukat Flour Mill. At about 12:10 p.m., the police party intercepted the said vehicle coming from Barshore side towards Pishin Bazar; on inquiry, the driver, who was alone in the vehicle, disclosed his name as Niaz Muhammad, son of Abdullah Khan. His personal search was conducted in the presence of witnesses; however, nothing incriminating was recovered from his possession. Thereafter, upon thorough search of the vehicle, three white parcels were allegedly recovered from the trunk (dickey) of the vehicle; each parcel was opened on the spot and was found containing hashish parcel No.1 contained 25 kg, parcel No.2 contained 25 kg, and parcel No.3 contained 30 kg of hashish in solid slabs wrapped in yellow tape and white polythene, making the total recovery 80 kg of hashish. From each kilogram slab, 5 grams were separated as a sample for chemical analysis, whereas the remaining 995/995 grams, along with wrapping material, were sealed separately. Accordingly, sample parcels were prepared as Parcels Nos. 1 to 80, and the remaining substance was kept in separate parcels marked as 1-A to 80-A, while the empty outer packets were secured as Parcel No. 81. The recovered contraband, along with the vehicle, was taken into possession through a seizure memo in the presence of witnesses. Subsequently, a written report was prepared and sent to the police station through Constable Shahabuddin for registration of an FIR.

3.After the usual investigation, a challan was submitted before the trial Court, wherein charge under section 9(1)3(e) of the Act, 1997 was framed, to which the appellant pleaded not guilty and claimed trial.

4.The prosecution examined five witnesses. At the conclusion of the prosecution's evidence, the appellant was examined under section 342 Cr.P.C., wherein he denied the allegations and professed innocence. He also examined himself under section 340(2) Cr.P.C. but did not produce any defence witness.

5.The trial Court heard the arguments of the parties, convicted and sentenced the appellant vide impugned judgment, hence this criminal appeal.

6.Learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubt; that the alleged recovery is doubtful and not worthy of reliance; that the case property has not been properly proved in accordance with Register No.19; that the prosecution witnesses have made glaring contradictions, which have seriously dented the prosecution version; and that there exist material discrepancies and inherent defects in the prosecution case, creating serious doubt, entitling the appellant to the benefit thereof. In support of his contentions, learned counsel placed reliance upon the case laws Jeehand v. The State through Prosecutor General Balochistan (Criminal Petition No.1187/2021 Supreme Court), Muhammad Abid Hussain v. The State and another (Criminal Petition N.146/2025 Supreme Court), Muhammad Ali v. The State (2017 PCr.LJ 323 Lahore), Muhammad Qaseem v. The State (2025 PCr. LJ 328 Balochistan), Jameel Ahmed v. The State (2025 YLR 141 Balochistan), Shakeel Ahmed v. The State (2023 MLD 2047 Peshawar) and several judgments passed by this court.

7.Conversely, the learned Additional Prosecutor General contended that the prosecution has established the case through trustworthy and confidence-inspiring evidence; as such, the same is immune from interference by this court in appellate jurisdiction.

8.We have heard the learned counsel for the appellant as well as learned Additional Prosecutor General and perused the record with their able assistance.

9.The scrutiny of the testimony of the prosecution witnesses and a glance over the entire record reveals that the prosecution, in support of the accusations produced, PW-1 ASI Faiz-ud-Din, the complainant, who deposed that on 02.10.2024, he, along with other police officials, while on patrolling duty, received spy information that a silver colour Toyota Vitz bearing Registration No. ACG-834 is coming from Barshore towards Pishin Bazar carrying narcotics. Pursuant to the said information, the police established a blockade at Barshore Road near Shoukat Flour Mill. At about 12:10 p.m., the said vehicle was seen coming from the Barshore side towards Pishin Bazar, which was intercepted by the police party. On inquiry, the driver, who was alone in the vehicle, disclosed his name as Niaz Muhammad, son of Abdullah Khan. His personal search was conducted in the presence of witnesses; however, nothing incriminating was recovered from his possession. Thereafter, upon thorough search of the vehicle, three white parcels were allegedly recovered from the trunk (dickey) of the vehicle. Each parcel was opened on the spot and was found containing hashish in solid slabs wrapped in yellow tape and white polythene. Parcel No. 1 contained 25 kg of hashish, Parcel No. 2 contained 25 kg of hashish, and Parcel No. 3 contained 30 kg of hashish, for a total recovery of 80 kg. From each kilogram slab, 5 grams were separated as a sample for chemical analysis, while the remaining 995 grams, along with the wrapping material, were sealed separately. Accordingly, sample parcels were prepared as Parcels Nos. 1 to 80, and the remaining substance was kept in separate parcels marked as 1-A to 80-A; he produced letter for lodging FIR as Ex.P/1-A; PW-2 Shahab-ud-din took the murasila for the registration of the FIR; PW-3 Rehmatullah, produced Register No.19 as Ex.P/3-A; PW-4 Muhammad Hazrat, witness of recovery memo, produced recovery memo as ExP/4-A, and parcels No. 1-A to 80-A as Art. P/4-1 to Art. P/4-243: three-number empty parcels as Art. P/4-244 to Art. P/4-246 respectively; PW-5 Amanullah, SI/Investigating Officer of the case, who counted the steps taken during the course of investigation, produced FIR as Ex.P/5-A, site map as Ex.P/5-B, road certificate as Ex.P/5-C, letter for transmitting the contrabands to the FSL as Ex.P/5- D, the FSL report as Ex.P/5-E and Challan as Ex.P/5-F.

10.The record reflects that the prosecution has failed to substantiate its case through credible, confidence-inspiring, and trustworthy evidence. The prosecution is duty-bound to prove the safe custody of the alleged contraband from the place of recovery until its safe transmission to the Forensic Science Laboratory through an unbroken chain of custody. Any missing link in the chain of safe custody casts doubt on the prosecution's case.

11.In the present case, PW-3, the custodian of malkhana , deposed that on 02.10.2024 at about 03:10 p.m., SI Amanullah handed over to him Parcel Nos.1 to 80 containing 5/5 grams each for FSL and Parcel Nos.1-A to 80-A containing 995/995 grams of charas along with Parcel No.81 containing three empty parcels. He further deposed that on 03.10.2024 at about 11:00 a.m., he delivered back Parcel Nos.1 to 80 to SI Amanullah for onward transmission to the FSL. However, during cross-examination, he admitted material irregularities and replied as under:

12.The above admissions clearly demonstrate that the mandatory columns of Register No.19 were left blank, and neither the name, designation, nor signatures of the person depositing or receiving the parcels were recorded therein. Such serious omissions strike at the root of the prosecution's case and make the safe custody and transmission of the alleged contraband highly doubtful. The prosecution has failed to establish, through unimpeachable evidence, that the samples remained intact and untampered with throughout. It is by now well-settled that where the chain of custody is not proved beyond doubt, the benefit thereof must be extended in favour of the accused.

13.Likewise, the prosecution case is that out of the alleged recovery, 05 grams of charas from each kilogram slab were separately drawn, sealed, and forwarded for chemical analysis in Parcel Nos. 1 to 80, whereas, the remaining bulk quantity of the recovered contraband was allegedly sealed in Parcel Nos. 1-A to 80-A; thus, according to the prosecution version, a total of 161 parcels, including Parcel No. 81, containing empty wrappers, were prepared at the spot. However, PW-4 Muhammad Hazarat, the recovery memo witness, while producing the case property before the learned trial Court, tendered the alleged recovered contraband sealed in Parcel Nos. 1-A to 80-A. During his cross-examination he made material admissions which creates doubt regarding the sanctity and identity of the alleged case property, while admitting that the white parcels bearing references P/4-244 to P/4-246 were not simple/plain parcels but were found to have a green coating over them, and further admitting that three parcels bore printed/affixed markings including "Qudoos Rizvi", "Shakar Safaid" and other company details, thereby indicating apparent irregularities and discrepancies in the sealing, packing, and identification of the allegedly recovered contraband.

14.The above statement of PW-4, when read in conjunction with the deposition of PW-5, gives rise to serious and material doubts regarding the actual number, identity, and composition of the parcels allegedly recovered and sealed at the place of occurrence, thereby striking at the root of the prosecution's case. On the one hand, the prosecution version maintains that Parcel No. 81 contained the empty wrappers of the recovered contraband, whereas PW-5 has categorically stated that all three parcels were placed in Parcel No. 161, thereby creating a direct and irreconcilable contradiction in the prosecution evidence regarding the handling and categorization of the case property. Such inconsistency is not merely a minor or procedural irregularity but rather a material discrepancy affecting the very authenticity and sanctity of the alleged recovery proceedings. It is a settled principle of criminal jurisprudence that the prosecution is bound to establish its case beyond a reasonable doubt and to prove, with strict certainty, the manner in which the alleged contraband was recovered, weighed, sampled, sealed, and transmitted through an unbroken chain of custody. However, in the present case, the contradictory statements of the prosecution witnesses have rendered the chain of custody questionable and seriously impaired the credibility of the alleged recovery. It is well-established that in narcotics cases, strict compliance with procedural safeguards and unimpeachable proof of the safe custody of case property are mandatory, as the entire prosecution case hinges on the integrity of the recovered substance. Reliance in this regard may be placed on the principles enunciated in the case of Amjad Ali v. the State (2012 SCMR 577), wherein the Hon'ble Supreme Court held that any break or doubt in the chain of custody of narcotics is sufficient to extend the benefit of doubt to the accused as safe custody, safe transmission, and unimpeachable evidence regarding the sampling and sealing of contraband are prerequisites for sustaining a conviction under narcotics laws, and any contradiction or missing link in this regard vitiates the prosecution's case.

15.In the present matter, the contradictory versions regarding Parcel No. 81 and Parcel No. 161, coupled with inconsistencies in the handling and identification of parcels, have materially shaken the prosecution's case and rendered the alleged recovery proceedings highly doubtful, thereby breaking the chain of custody and entitling the accused to the benefit of doubt as a matter of settled law. It is a cardinal principle of criminal jurisprudence that if a single circumstance creating reasonable doubt in the mind of a prudent person about the guilt of the accused, he is entitled to its benefit as a matter of right and not of grace, wherein it has consistently been held that the benefit of doubt must be extended to the accused even if there is the slightest doubt in the prosecution's version. Reliance is placed on the case of Barkhurdar v. The State and another (2023 SCMR 1791), wherein it has been held as under:

16.Moreover, the testimony of the prosecution witnesses discloses material contradictions with regard to the alleged recovery of personal belongings from the possession of the appellant, inasmuch as PW-4 has stated that a mobile phone was recovered from the appellant, whereas PW-5, while replying to question No. 15, has deposed that a photocopy of the appellant's CNIC was also recovered and forms part of the record. As per record, the Investigating Officer neither prepared any separate recovery memo in respect of the said alleged articles nor produced the same before the learned Trial Court, which renders such alleged recoveries legally infirm and evidentially unreliable. The non-seizure, non-documentation, and non-production of these allegedly recovered items before the trial court constitute serious investigative lapses, thereby weakening the chain of evidence and casting doubt upon the authenticity of the prosecution story as a whole. It is a wellsettled principle of criminal jurisprudence that where material objects allegedly recovered during investigation are neither properly sealed, documented, nor produced before the court, they cannot be safely relied upon to sustain a conviction, particularly in cases involving stringent penal consequences under the CNS Act, 1997.

17.Furthermore, the Hon'ble Supreme Court has recently underscored the significance of modern evidentiary safeguards in narcotics cases, observing that where recovery proceedings are not supported by contemporaneous audio-visual or video recordings, particularly when such facilities are available, the credibility of the recovery process becomes doubtful and unsafe for reliance. In the present case, the alleged recovery of personal articles and recovered contrabands are not supported by any contemporaneous electronic evidence, and the absence of such safeguards, coupled with material contradictions in the testimony of prosecution witnesses and nonproduction of alleged recovered items, cumulatively render the prosecution's version highly doubtful. These defects, when taken together, have seriously shaken the veracity of the prosecution's case, thereby establishing that the defence has successfully created reasonable doubt in the prosecution's story, entitling the appellant to the benefit thereof as a matter of settled law.

18.As a sequel to the above discussion, it is concluded that the findings of the learned trial Court are based on misreading, non-reading, and mis-appreciation of evidence. The prosecution has failed to prove its case against the appellant beyond a reasonable doubt; therefore, the impugned judgment is not sustainable.

For the above reasons, Criminal Appeal No. 90 of 2025 is allowed; consequently, the impugned judgment dated 21st April, 2025, passed by the learned Special Judge CNS/Additional Sessions Judge, Pishin, is set aside. The appellant, Niaz Muhammad, son of Abdullah, is acquitted of the charges under section 9(1)3(e) of the Act, 1997, in case FIR No. 60 of 2024, registered at Police Station Saddar, Pishin. The appellant is in custody; he shall be released forthwith, unless required for any other case.

JK/1/Bal. Appeal allowed.