MUHAMMAD SALIM vs THE STATE
This matter involves a petition for leave to appeal against a judgment of the Federal Shariat Court, which upheld the petitioner's conviction and sentence under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979. The petitioner was convicted for the possession of 4550 grams of heroin. The core legal questions raised by the petitioner concern the integrity of the chain of custody regarding the seized contraband. Specifically, the petitioner challenges the prosecution's case on the grounds that the heroin packets were unsealed and sampled at the F.I.A. Headquarters in his absence, four days after the seizure, and that there is a significant, unexplained discrepancy between the number of packets seized (four) and the number of packets produced in court (eleven). The Supreme Court, finding these contentions worthy of consideration, granted leave to appeal to examine the evidentiary implications of these procedural lapses. However, the Court declined the petitioner's request for bail pending the final disposal of the appeal, while simultaneously directing that the appeal be scheduled for an early regular hearing.
- Does a significant, unexplained discrepancy between the number of contraband packets seized and those produced in court warrant leave to appeal?
- Can a conviction be sustained when the chain of custody for seized narcotics is challenged due to the unsealing and sampling of evidence in the absence of the accused?
- Article 4, Prohibition (Enforcement of Hadd) Order, 1979
ORDER
1. ' SAIDUZZAMAN SIDDIQUI, J.---The petitioner is seeking leave to appeal against the judgment of Federal Shariat Court dated 22-4-1993, whereby the learned Chief Justice of that Court upheld the conviction and sentence awarded to the petitioner by the trial Court under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979.
2. ' The petitioner was tried for possessing 4550 grams of heroin powder. According to prosecution he was intercepted by the F.I.A. Police on 12-2-1989 on spy information while alighting from a Car at Hassan Square, Karachi. The contraband heroin was found contained in four 'thalies' which were taken into possession by the F.I.A. Inspector at the spot and after weighing were sealed under a 'Mushirnama' witnessed by P.W.1 Syed Fahimuddin. In seeking leave to appeal, the learned counsel for the petitioner contended that the contraband heroin seized by the F.I.A. Police at the spot was sealed there but according to both the prosecution witnesses examined in the case, the packets were unsealed at the F.I.A. Headquarters on 16-2-1989 and samples were drawn on that date in the absence of the petitioner. It is also contended that although numbers of packets seized from the possession of petitioner were 4 according to prosecution evidence but when produced in Court the numbers of packets were 11 for which no explanation was offered by the prosecution.
3. ' The above contentions, inter alia, require consideration and we, accordingly, grant leave to appeal. The petitioner has also applied for grant of bail pending his appeal. We are not inclined to admit the petitioner to bail at this stage. However, we direct that the appeal may be fixed for regular hearing at an early date.