PLJ 2023 SC (Cr.C.) 217.
Recovery of narcotics--Safe custody and safe transmission--Moharrar not produced--Witness of depositing sample in Laboratory.
PLJ 2023 SC (Cr.C.)
217
[Appellate Jurisdiction]
Present: Sardar Tariq Masood,
Amin-ud-Din Khan and Shahid Waheed, JJ.
MUHAMMAD HAZIR--Appellant.
versus
STATE--Respondent
Crl. A. No. 285 of 2022, decided on 1.3.2023.
(Against the judgment dated 19.9.2018 of the Peshawar High Court, Peshawar
passed in Crl. A. No. 412-P of 2016)
Control of Narcotic Substances
Act, 1997 (XXV of 1997)--
----S. 9-C--Recovery of narcotics--Safe custody and
safe transmission--Moharrar not produced--Witness of depositing sample in
Laboratory--Acquittal of--Neither the safe custody nor the safe transmission of
the sealed sample parcels to the concerned Forensic Science Laboratory was
established--Neither the Moharrar nor the Constable who deposited the sample
parcels in the concerned laboratory was produced--Recovery was affected on
10.02.2015 whereas the sample parcels were received in the said laboratory on
13.02.2015 and prosecution is silent as to where remained these sample parcels
during this period--This appeal is allowed--He is acquitted of the
charge. [P. 218] A & B
2021 SCMR 363; 2019
SCMR 1300; 2018 SCMR 2039; 2015 SCMR 1002; 2012 SCMR 577 ref.
Mr. Arshad Hussain
Yousafzai, ASC for Appellant.
Sardar Ali Raza, Additional A.G. Khyber Pakhtunkhwa for State.
Date of hearing:
1.3.2023.
Judgment
Sardar Tariq Masood, J.--The appellant Muhammad
Hazir faced trial in case FIR No. 126 dated 10.02.2015 registered under Section
9(c) of the Control of Narcotic Substances Act, 1997 (‘Act 1997’) at
Police Station City Mardan. After a full-fledged trial, learned trial Court vide judgment
dated 19.05.2016 convicted the appellant under Section 9(c) of the Act, 1997
and sentenced him to imprisonment for life with fine of Rs. 1,00,000/- or in
default of payment of fine to further undergo six months’ simple imprisonment.
Benefit of Section 382-B, Cr.P.C. was also extended to him. Aggrieved of his
conviction and sentence, appellant filed a Criminal Appeal before the Peshawar
High Court, Peshawar which was dismissed vide impugned
judgment dated 19.09.2018. Hence, this appeal by leave of the Court granted on
25.04.2022.
3. After hearing the learned counsel for the appellant as well as the
learned state counsel and perusing the available record along with the impugned
judgment with their assistance, it has been observed by us that neither the safe
custody nor the safe transmission of the sealed sample parcels to the concerned
Forensic Science Laboratory was established by the prosecution because neither
the Moharrar nor the Constable Shah Said (FC-2391) who deposited the sample
parcels in the concerned laboratory was produced. It is also a circumstance
that recovery was affected on 10.02.2015 whereas the sample parcels were
received in the said laboratory on 13.02.2015 and prosecution is silent as to
where remained these sample
parcels during this period, meaning thereby that the element of tampering with
is quite apparent in this case. This Court in the cases of Qaiser
Khan v. The State through Advocate-General, Khyber Pakhtunkhwa, Peshawar (2021 SCMR 363), Mst. Razia Sultana v. The State and another (2019 SCMR
1300), The State through Regional Director ANF v. Imam Bakhsh and
others (2018 SCMR 2039), Ekramullah and others v. The State (2015 SCMR 1002) and Amjad Ali v. The State (2012 SCMR 577) has
held that in a case containing the above mentioned defect on the part of the
prosecution it cannot be held with any degree of certainty that the prosecution
had succeeded in establishing its case against an accused person beyond any
reasonable doubt.
4. For the forgoing
reasons, this appeal is allowed. The conviction and sentence of appellant
Muhammad Hazir, passed by the trial Court and upheld by the High Court, is
hereby set aside and he is acquitted of the charge in the instant case.
He be released from jail
forthwith if not required to be detained in any other case.
(K.Q.B.) Appeal
allowed
