Supreme court acquitted conviction of life imprisonment in 9c cnsa case due to procedure irregularities .

IN THE SUPREME COURT OF PAKISTAN

( Appellate Jurisdiction )

Present:

Justice Jamal Khan Mandokhail

Justice Syed Hasan Azhar Rizvi

Justice Naeem Akhtar Afghan

CRIMINAL PETITION NO.130-Q OF 2021

(On appeal against the judgment dated 30.11.2021 passed by the

High Court of Balochistan, Quetta in Crl. A. No.04/2021)

Sarfraz Ahmed

…

Petitioner

Versus

The State

…

Respondent

For the petitioner :

Mr. Manzoor Ahmed Rahmani, ASC

(via video link from Quetta)

For the State

Ms. Rubina Butt, ASC as State counsel

(on behalf of Govt. of Balochistan).

Habibullah, SI/SHO

Date of hearing

22.05.2024

O R D E R

NAEEM AKHTAR AFGHAN, J.

On the basis of

Murasillah sent by SI/SHO Habibullah (PW.1) from the National

Highway about eight kilometers away from Police Station (PS) City

Kalat to the Officer Incharge PS City Kalat on 27 August 2020 at

3.20 am, FIR No.34 of 2020 was registered against the petitioner

u/s 9 (c) of Control of Narcotic Substances Act, 1997 (‘CNSA

1997’) with PS City Kalat on 27 August 2020 at 4.30 am.

As per contents of the FIR, while patrolling on the National

Highway, PW.1 received information through special informer that

huge quantity of contraband is going to be smuggled from Quetta

to Karachi due to which the National Highway was block raided.

Checking of vehicles coming from Quetta was started. A mini

wagon bearing registration No.BMA-934 was stopped at 3.20 am.

The driver disclosed his name as Sarfraz Ahmed s/o Ijaz Ahmed

(the petitioner) resident of Jam Colony, Hub Chowki. On checking,

secret cavities were found in the floor of the vehicle wherefrom 150

pieces of baked Charas were recovered. On weighing, the same

were found 146.200 Kgs. One small piece from each of the 150

pieces of the baked Charas (total weighing 1.350 Kg) were

Crl. P. No. 130-Q of 2021

separated for analysis and sealed in parcel No.1 while the

remaining baked Charas weighing 144.850 Kgs was sealed in

parcel No.2. Recovery memos of the contraband, sample parcel and

vehicle were prepared in presence of the witnesses.

During investigation parcel No. 1 was sent to Forensic

Science Laboratory (FSL) for analysis. Awaiting report of FSL,

incomplete Challan was submitted. After receiving report of FSL

supplementary Challan was submitted whereafter the trial

commenced before the Court of learned Special Judge Control of

Narcotic Substances, Kalat (‘the Trial Court’). The petitioner did

not plead guilty to the charge under section 9(c) of CNSA 1997. The

prosecution witnesses were examined. Statement of petitioner was

recorded u/s 342 of the Criminal Procedure Code (‘Cr.P.C.’). The

petitioner neither recorded his statement on oath u/s 340 (2)

Cr.P.C. nor produced any defence witness.

On conclusion of trial the petitioner was convicted u/s 9 (c)

of CNSA 1997 by the Trial Court vide judgment dated 29 December

2020 and he was awarded sentence of rigorous imprisonment (RI)

for twenty five years with fine of Rs.100,000/- and in default of

payment of fine to further undergo six months S.I. with benefit of

section 382-B Cr.P.C. The Trial Court further ordered that the

contraband and vehicle be confiscated in favour of the State.

The petitioner challenged his conviction and sentence by

filing appeal before the High Court of Balochistan (‘the Appellate

Court’). The appeal has been dismissed vide impugned judgment

dated 30 November 2021 against which the petitioner has filed the

instant Criminal petition for leave to appeal.

After hearing learned counsel for the petitioner and the

learned State counsel we have perused the available record. It

reveals that instead of separately sealing the 150 pieces of the

separated samples (total weighing 1.350 Kgs) in 150 separate

parcels, the same were sealed in one parcel i.e. parcel No. 1 in

flagrant violation of the dictum laid down by this Court in the case

of “Muhammad Hashim v. The State”1.

PLD 2004 SC 856

Crl. P. No. 130-Q of 2021

In his statement recorded at the trial, PW.1 has not stated

that he had handed over parcel No.1 and parcel No.2 to Ali

Muhammad SI/investigating officer (PW.4) on 27 August 2020 at

the place of recovery.

In his examination-in-chief, PW.4 has not mentioned that he

had handed over parcel No.1 and parcel No.2 to the Moharrar of PS

Kalat. However, while responding to a question of learned defence

counsel during cross-examination, PW.4 answered that he had

handed over both the parcels to Moharrar of PS Kalat and parked

the seized vehicle in the premises of PS Kalat.

In order to prove the safe custody of the parcels of the

contraband, Moharrar (Abdul Qayyum) of PS Kalat has not been

produced at the trial by the prosecution. In the cases of “Said

Wazir v. The State”2, “Muhammad Shoaib v. The State”3 and

“Ishaq v. The State”4 it has been held that due to nonappearance of the Moharrar at the trial, the safe custody of the

parcel of the contraband as well as the sample parcel has not been

established by the prosecution.

In the case of “Zahir Shah v. The State”5 it has been laid as

follows by this Court:

“This court has repeatedly held that safe custody and

safe transmission of the drug from the spot of recovery till its

receipt by the Narcotics Testing

Laboratory must be

satisfactorily established. This chain of custody is fundamental

as the report of the Government Analyst is the main evidence for

the purpose of conviction. The prosecution must establish that

chain of custody was unbroken, unsuspicious, safe and secure.

Any break in the chain of custody i.e., safe custody or safe

transmission impairs and vitiates the conclusiveness and

reliability of the Report of the Government Analysis, thus,

rendering it incapable of sustaining conviction.”

10.

To prove the existence of secret cavities in the floor of the

vehicle and for corroborating the statements of the prosecution

witnesses about recovery of 150 pieces of contraband therefrom,

the seized vehicle was not produced at the trial by the prosecution

2023 SCMR 1144

2022 SCMR 1006

2022 SCMR 1422

2019 SCMR 2004

Crl. P. No. 130-Q of 2021

and in this regard no explanation has been offered by the

prosecution.

11.

No driving license was recovered from the petitioner.

Ownership of the petitioner for the seized vehicle has also not been

proved by the prosecution. No probe was made during

investigation about the ownership of the vehicle with reference to

its registration number.

12.

In view of all the above infirmities it is concluded that the

prosecution has failed to prove the charge against the petitioner

beyond reasonable doubt. It is further concluded that the

conviction and sentence awarded to the petitioner by the Trial

Court and maintained by the Appellate Court is result of misappreciating the evidence available on record and same is violative

of the dictum laid down by this Court in the above referred

judgments.

13.

For the above reasons drawn today, vide our short order

dated 22 May 2024 (reproduced herein below), the petition was

converted into appeal and same was allowed:

“For reasons to be recorded later, this petition is

converted into appeal and allowed. The judgment

dated 30.11.2021 passed by the High Court of

Balochistan is set aside and petitioner Sarfraz Ahmed

is acquitted of the charge in this case. He shall be

released from jail forthwith if not require in any other

case.”

Judge

Islamabad

22.05.2024

Atif/Zohaib*

NOT APPROVED FOR REPORTING

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