9C acquittal | Acquitted in Marijuana case 9 kg 60 grams by Lahore High Court While acquitting the accused of hashish, he declared that the police witnesses failed to prove the safe custody and step-by-step transfer of hashish. The session court sentenced the accused to 14 years imprisonment and fined five lakhs. He was sentenced to six years. 2024 LHC 4381
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| Acquitted in Marijuana case 9 kg 60 grams by Lahore High Court While acquitting the accused of hashish, he declared that the police witnesses failed to prove the safe custody and step-by-step transfer of hashish. The session court sentenced the accused to 14 years imprisonment and fined five lakhs. He was sentenced to six years. 2024 LHC 4381 |
اردو خلاصہ:
اس فیصلے میں لاہور ہائیکورٹ نے قمر مسیح کی اپیل کو منظور کرتے ہوئے ان کی سزا ختم کر دی ہے۔ قمر مسیح کو 28 جون 2007 کو سیشن عدالت سیالکوٹ نے چرس کے 9 کلوگرام اور 60 گرام کی برآمدگی کے الزام میں 14 سال قید اور 5 لاکھ روپے جرمانہ کی سزا سنائی تھی۔
عدالت میں پراسیکیوشن نے کیس کا مکمل ثبوت فراہم نہیں کیا، خاص طور پر منشیات کی برآمدگی کے بعد اسے محفوظ رکھنے اور لیبارٹری تک پہنچانے کا کوئی واضح اور تسلسل سے منسلک ثبوت نہیں تھا۔ اس کے ساتھ ساتھ، کیمیکل ایگزامینر کی رپورٹ پر بھی بھروسہ نہیں کیا جا سکا، کیونکہ چرس کی برآمدگی کے بعد اس کی منتقلی کے بارے میں کوئی مناسب شہادت فراہم نہیں کی گئی۔
عدالت نے یہ فیصلہ کیا کہ جب تک منشیات کی برآمدگی اور اس کی محفوظ منتقلی کا ثبوت فراہم نہ ہو، سزا دینا ممکن نہیں۔ عدالت نے اس بنیاد پر قمر مسیح کو شک کا فائدہ دیتے ہوئے بری کر دیا۔
HCJDA 38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Crl. Appeal No.203/2008
Qamar Masih Versus The State
JUDGMENT
Date of hearing: 09.10.2024
Appellant by:
Mr. Muhammad Javed Iqbal Qureshi,
Advocate along with the appellant (on bail).
State by:
Mr. Haroon Rasheed, Deputy Prosecutor
General along with Waris, S.I.
Farooq Haider, J.:- This appeal has been filed against the
judgment dated: 28.06.2007 passed by learned Additional Sessions
Judge, Sialkot whereby in case arising out of F.I.R No.67/2006 dated:
05.02.2006 registered under Section: 9 (c) of the Control of Narcotic
Substances Act, 1997 at Police Station: Civil Lines, District Sialkot, trial
court has convicted and sentenced the appellant as under:-
under Section 9(c) of Control of Narcotic Substances Act, 1997
to Rigorous Imprisonment for 14-years with fine of Rs.500,000/-
and in default thereof, to further undergo S.I for 06-months. Benefit
of Section 382-B Cr.P.C. was also extended to the appellant.
2.
Briefly, case of prosecution as per written statement/ استغاثہ
(Ex.DA) sent by Muhammad Arshad, S.I. (complainant/PW-1) is that on
05.02.2006, he (complainant/PW-1) was present at Bara Pathar Chowk
for searching proclaimed offenders, narcotics sellers; police officials on
patrol duty in the area also met him; in the meanwhile a spy information
was received that Qamar Masih son of Yousaf Masih resident of Landi
Kotal along with his wife namely Sheela, who usually come from their
residence situated at Christian Colony Adha and sell narcotics, after
sending Humayoun alias Chand to inform customers and bringing charas
tied in bundle type cloth ( کپڑا نما گھٹری) for sale purpose is standing; if a
raid is immediately conducted, he could be apprehended from near
Church Chowk Qabristan; upon such information, they immediately
after constituting raiding team, reached at the spot, a person whose name
was disclosed as Qamar son of Yousaf, resident of Landi Kotal
(mentioned above) was carrying charas tied in floral ladies chaddar
and besides him, one woman whose name was disclosed as Sheela
wife of Qamar was also present; on search of bundle carried by
Qamar in his hand, golden coloured packet having English text
Crl. Appeal No.203/2008
2
“CHOCO CAPPUCCINO” containing 09-packs/slabs of charas
(total weighing 09-Kg and 60-grams) was found; on his personal search,
black coloured Motorola mobile C-115 and a currency note of Rs.50/-
were recovered, which were taken into possession; recovered charas was
sealed into 08-parcles with stamp of H.C. and taken into possession; he
also confessed regarding taking of charas from Landi Kotal, keeping the
same with his in-laws Christian Colony Adha and while taking his wife
namely Sheela along with him, selling the same to his customers on
different occasions.
After investigation, challan report was sent to the Court against
the appellant; charge was framed against him, to which he pleaded not
guilty; prosecution produced its evidence. Trial court recorded statement
of the appellant under Section: 342 Cr.P.C. wherein he refuted
allegations leveled against him; he did not opt to appear as his own
witness under Section 340(2) Cr.P.C. to disprove the allegations levelled
against him, however, produced Ashiq Masih as DW-1, Muhammad
Iqbal Javaid as DW-2, copy of report prepared under Section: 173
Cr.P.C. in case arising out of FIR No.682/2006 along with proceedings
and evidence etc. as Exh.DD, copy of FIR No.68/2006 registered at
Police Station: Civil Lines as Exh.DE and copy of FIR No.69/2006
registered at Police Station: Civil Lines as Exh.DF in his defence
evidence. Trial court after conclusion of trial has convicted and
sentenced the appellant as mentioned above through impugned
judgment.
3.
Learned counsel for the appellant has contended that safe custody
of case property has not been proved therefore conviction recorded and
sentence awarded through impugned judgment is liable to be set aside;
further requested for acceptance of instant appeal.
4.
Conversely learned Deputy Prosecutor General has supported the
impugned judgment and requested for dismissal of this appeal.
5.
After hearing learned counsel for the appellant, learned
Deputy Prosecutor General and going through the record, it has
been noticed that as per case of prosecution, parcel of entire statedly
recovered charas was sent to the office of Chemical Examiner, Punjab
Lahore and in this regard, report of Chemical Examiner, Punjab Lahore
is available on the record as Ex.PF; perusal of said report reveals that
packet in this case was dispatched on 08.02.2006 from Excise and
Crl. Appeal No.203/2008
3
Taxation Officer (E.T.O.), Sialkot vide letter No.734 dated: 08.02.2006
however learned Deputy Prosecutor General after going through the
record could not refer even an iota of material/evidence to show that when
packet containing statedly recovered charas in this case was sent to the
office of Excise and Taxation Officer, Sialkot, who took the same there
and who collected it from there for submitting the same to the office of
Chemical Examiner. It is relevant to mention here that Shafaqat Ali,
940/C while appearing as PW-2 categorically deposed before the court
that on 14.02.2006, Muhammad Latif, 1475/HC (Moharrar of the police
station) handed over to him one sealed parcel, which he deposited in the
office of Chemical Examiner, Lahore. He has not stated that said parcel
was at any time taken to Excise and Taxation Officer, Sialkot or was
collected by him from Excise and Taxation Officer, Sialkot for depositing
the same in the office of Chemical Examiner. Similarly, Muhammad
Latif, 1475/HC (Moharrar of the police station) while appearing before
the court as PW-3 stated that Munawar Khan, S.I.(PW-4) handed over
parcel to him on 05.02.2006 and he handed over the same on 14.02.2006
to Shafaqat Ali, 940/C (PW-2) for its onward transmission to the office of
Chemical Examiner, Lahore and he did not depose that said sealed parcel
was ever sent to Excise and Taxation Officer, Sialkot or was received
from the office of Excise and Taxation Officer, Sialkot.
This aspect has impaired and vitiated the conclusiveness and
reliability of the report of Chemical Examiner, Punjab Lahore; in this
regard, case of “MUHAMMAD ABBAS vs. THE STATE” (2006 YLR
2378)[Lahore], can be referred advantageously, relevant portion whereof
is being reproduced below:
“The report of the Chemical Examiner (Exhibit-PE), however,
shows that the docket of the samples of the recovered
substance had been prepared on 06.07.1998 and the said
samples had been dispatched by the Excise and Taxation
Officer, Sheikhupura and not by the local police. We have
required the learned counsel for the State to explain as to how
the samples of the recovered substance had come in the hands
of the Excise and Taxation Officer, Sheikhupura and what was
the evidence available on the record to confirm that the same
had been kept in safe custody while in possession of the Excise
and Taxation Officer, Sheikhupura but after going through the
record of this case from cover to cover he has categorically
conceded that there is no evidence whatsoever available on
the record in those respects. In such a state of the evidence
available on the record safe custody of the recovered
substance or its samples is not discernable from the record of
this case and, thus, we have found it to be extremely unsafe to
Crl. Appeal No.203/2008
4
uphold and maintain the appellant’s convictions and sentences
recorded by the learned trial court.”
Unreported judgment of Division Bench of this Court rendered in the
case of “Munawar Hussain Vs. The State, etc.” (Crl. Appeal No.364-
J of 2014) dated: 16.01.2019 can also be safely referred on the subject.
Furthermore, Munawar Khan, S.I. while appearing in the witness
box as PW-4 categorically stated regarding availability of case property
i.e. P-1/1-9 in the court at the time of recording of evidence; in this regard,
relevant portion of his statement is hereby reproduced as under:-
“The alleged recovered 9 packets of chars P-1/1-9 was taken into
possession vide recovery memo Ex.P.B---.”
Similarly, Ghulam Rasool, ASI while appearing in the court as PW-5 also
deposed regarding availability of parcel of case property in the court as
P-1 at the time of recording of his evidence; in this regard, relevant
portion of his statement reads as under:-
“On the same day, Munawar Khan SHO/SI alongwith other police
officials recovered charas P.1 from the accused Qamer Masih
present in the court in my presence.”
It is relevant to mention here that as per own case of prosecution, entire
case property in this case was sent to the office of Chemical Examiner for
analysis, however, prosecution did not produce any evidence to show that
who and when brought it back from said office for production of the
same before the court at the time of recording of evidence during
trial of the case.
Therefore, safe custody and transmission of parcel of case
property from police station to the office of Chemical Examiner, Punjab
Lahore and then to court has not been proved in this case. Now law is
well settled on the point that unbroken chain of “safe custody of
allegedly recovered case property and parcel of sample” is to be proved
otherwise, conviction is not possible and it is rightly so because recovery
of narcotics is not a mere corroboratory piece of evidence rather it
constitutes the offence itself and entails punishment. Guidance in this
regard has been sought from the case of “The STATE through
REGIONAL DIRECTOR ANF versus IMAM BAKHSH” (2018
SCMR 2039); relevant portion whereof is being reproduced below: -
“Chain of Custody – Safe custody and safe transmission
9.
We have noted above that in Criminal Appeals Nos.523 to
525/2017 and No.22/2018, safe custody and safe transmission of
the alleged drug from the spot of recovery till its receipt by the
Narcotics Testing Laboratory are not satisfactorily established.
The chain of custody begins with the recovery of the seized drug
Crl. Appeal No.203/2008
5
by the Police and includes the separation of the representative
sample(s) of the seized drug and their dispatch to the Narcotics
Testing Laboratory. This chain of custody, is pivotal, as the
entire construct of the Act and the Rules rests on the Report of
the Government Analyst, which in turn rests on the process of
sampling and its safe and secure custody and transmission to the
laboratory. The prosecution must establish that the chain of
custody was unbroken, unsuspicious, indubitable, safe and
secure. Any break in the chain of custody or lapse in the
control of possession of the sample, will cast doubts on the safe
custody and safe transmission of the sample(s) and will impair
and vitiate the conclusiveness and reliability of the Report of
the Government Analyst, thus, rendering it incapable of
sustaining conviction. This Court has already held in Amjad
Ali v. State (2012 SCMR 577) and Ikramullah v. State (2015
SCMR 1002) that where safe custody or safe transmission of
the alleged drug is not established, the Report of the
Government Analyst becomes doubtful and unreliable.
20.
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The
representative samples of the alleged drug must be in safe
custody and undergo safe transmission from the stage of
recovery till it is received at the Narcotics Testing Laboratory”
(emphasis added)
In this regard, case of “ABDUL GHANI and others versus The
STATE and others” (2019 SCMR 608) can also be referred; relevant
portion whereof is reproduced as under:-
“There is hardly any occasion for discussing the merits of the
case against the appellants because the record of the case
shows that safe custody of the recovered substance as well as
safe transmission of samples of the recovered substance to the
office of the Chemical Examiner had not been established by
the prosecution in this case. Nisar Ahmed, S.I./SHO
complainant (PW1) had stated before the trial court that he
had deposited the recovered substance at the Malkhana of the
local Police Station but admittedly the Moharrir of the said
Police Station had not been produced before the trial court to
depose about safe custody of the recovered substance. It is
also not denied that Ali Sher, H.C. who had delivered the
samples of the recovered substance at the office of the
Chemical Examiner had also not been produced during the
trial so as to confirm safe transmission of the samples of the
recovered substance. It has already been clarified by this
Court in the cases of The State through Regional Director
ANF v. Imam Bakhsh and others (2018 SCMR 2039),
Ikramullah and others v. The State (2015 SCMR 1002 and
Amjad Ali v. The State (2012 SCMR 577) that in a case where
safe custody of the recovered substance or safe transmission of
samples of the recovered substance is not proved by the
prosecution through independent evidence there it cannot be
concluded that the prosecution had succeeded in establishing
its case against the appellants beyond reasonable doubt. The
Crl. Appeal No.203/2008
6
case in hand suffers from the same legal defects. This appeal
is, therefore, allowed, the convictions and sentences of the
appellants recorded and upheld by the courts below are set
aside and they are acquitted of the charge by extending the
benefit of doubt to them. They shall be released from the jail
forthwith if not required to be detained in connection with any
other case.”
(emphasis added)
Further guidance has also been sought from the cases of
“MUHAMMAD HAZIR versus The STATE” (2023 SCMR 986),
“ASIF ALI and another versus The STATE through Prosecutor
General Punjab” (2024 SCMR 1408) and “SARFRAZ AHMED
versus The STATE” (2024 SCMR 1571). Since safe custody and
transmission of parcel of case property from police station to the office
of Chemical Examiner, Punjab Lahore and then to the court has not been
proved in this case therefore report of Chemical Examiner (Ex.PF) has
lost its conclusiveness and cannot be made basis for conviction. By now it
is also well settled that if safe custody of allegedly recovered substance/
case property has not been proved then, there is no need to discuss other
merits of the case and it straightaway leads to the acquittal of the
accused; in this regard, guidance has been sought from the dictum laid
down by the Supreme Court of Pakistan in the supra cases of “Abdul
Ghani and others versus The State and others” and “The State through
Regional Director ANF versus Imam Bakhsh”.
6.
It is trite law that single dent in case of prosecution is sufficient
for acquittal, in this regard, reliance can be placed upon the cases of
“MUHAMMAD MANSHA versus The STATE” (2018 SCMR 772),
“ABDUL JABBAR and another versus The STATE”
(2019 SCMR 129), “Mst. ASIA BIBI versus The STATE and others”
(PLD 2019 SC 64) and “AMIR MUHAMMAD KHAN versus The
STATE” (2023 SCMR 566).
7.
Nutshell of the above discussion is that prosecution has been failed
to prove its case against the appellant beyond shadow of doubt hence there
is no need to discuss defence version.
8.
Resultantly, instant appeal is allowed/accepted, conviction
recorded and sentence awarded to Qamar Masih (appellant) through the
impugned judgment dated: 28.06.2007 passed in case arising out of F.I.R
No.67/2006 dated: 05.02.2006 registered under Section: 9 (c) of the
Control of Narcotic Substances Act, 1997 at Police Station: Civil Lines,
District Sialkot, are hereby set aside. The appellant is on bail after
Crl. Appeal No.203/2008
7
suspension of execution of his sentence by this Court vide order dated:
06.07.2011 passed in Crl. Misc. No.02 of 2011, his sureties are
discharged from the liabilities of bail bonds.
(ALI ZIA BAJWA)
(FAROOQ HAIDER)
JUDGE
JUDGE
APPROVED FOR REPORTING
(ALI ZIA BAJWA)
(FAROOQ HAIDER)
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