MUHAMMAD JAWAD ZAFAR, J.: - The appellants, namely, Nusrat, son of Lajor and Naqeeb Ullah, son of Jalal ud Din ("appellants") were tried by the learned Additional Sessions Judge, Jatoi, District Muzaffargarh ("Trial Court") in case FIR No. 37 of 2021, dated 26.01.2021, in respect of an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 ("CNSA") registered at Police Station Shaher Sultan District Muzaffargarh ("FIR" or "Crime Report"). The learned Trial Court vide judgment dated 21.10.2021 ("impugned judgment"), convicted the appellants and sentenced them as infra:
1. Nusrat son of Laior:- Sentence him to Death and the convict be hanged by his neck till his death under section 9 (c) of the Control of Narcotic Substances Act, 1997 and also burdened with fine of Rs.100,000/-, in default thereof, was directed to further undergo simple imprisonment for one year.
2. Naqeeb Ullah son of Jalal ud Din:- Sentence him to Death and the convict be hanged by his neck till his death under section 9 (c) of the Control of Narcotic Substances Act, 1997 and also burdened with fine of Rs.100,000/-, in default thereof, was directed to further undergo simple imprisonment for one year.
2. Capital Sentence Reference No. 03 of 2021 was also forwarded by the learned Trial Court for the confirmation of the death sentence or otherwise in terms of Section 374 of the Code of Criminal Procedure 1898 ("Code" or "Cr.P.C"), whereas the appellants have assailed the vires of the impugned judgment through instant Criminal Appeal No. 728-J of 2021. Both the Capital Sentence Reference and Criminal Appeal, due to arising out of the same impugned judgment, are being decided through this single consolidated judgment.
3. The Crime Report (Exh. PF) was lodged by Zohair Imran, ASI (PW-4), based on a complaint (Exh.
PG) drafted by Mukhtiar Hussain, SI (PW-5). The record indicates that on 26.01.2021, Mukhtiar Hussain (PW5), along with Muhammad Kazim Munir, SI (PW-3), Shahid Niaz, Abdul Qayum 761/C (PW-2), and Riaz Hussain 224/C, was on patrol in an official vehicle driven by Altaf Hussain 38/C at G.T. Road Sheikh Ali. During the course of patrolling, Mukhtiar Hussain received intelligence regarding a truck, registration No. 170/TKB, transporting a substantial quantity of contraband from the north. It was further conveyed that a well-executed raid could lead to the apprehension of the peddler and seizure of illicit substances. Acting on said spy information, a checkpoint/picket was installed under the supervision of Mukhtiar Hussain, SI (PW-5). Truck bearing registration No. 170/TKB was intercepted and upon interception, the raiding team apprehended the driver of said vehicle, who disclosed his name to be Nusrat. A search of the vehicle led to the discovery of a sack containing 25 packets of charas, concealed behind the driver's seat. Each packet was found to have contained approximately 1,025 grams of charas, amounting to 27 kg and 675 grams, which was recovered. PW-5 separated 51 grams charas from each packet for forensic analysis, sealing the samples into 27 parcels marked with the stamp MH and similarly sealed the remaining contraband into another 27 parcels (P-1/1-27). The entire recovered contraband was taken into possession via recovery memo Exh.PA. Further search of the person of Nusrat led to the recovery of cash amounting to PKR. 39,000/-, comprising thirty nine PKR. 1,000/- currency notes (P-2/1-39), a Q-Mobile mobile phone (P-3) containing SIM bearing No. 0333-2529639 (P-4) and his original CNIC (P-5), all of which were seized via recovery memo Exh.PB. Additionally, another individual seated on the roof of the truck was apprehended and identified as Naqeeb Ullah, son of Jalal ul Din. A search of his belongings revealed a sack (gattu) containing 27 packets of charas, each weighing 1,025 grams. The same procedure was followed and 51 grams per packet were extracted, and sealed, for forensic analysis while the remaining contraband/charas was separated in sample parcels (P-6/1- 27), all marked with the stamp MH. Said recovery from Naqeeb Ullah was seized via recovery memo Exh.PC. Further search of the person of Naqeeb Ullah led to the recovery of cash amounting to PKR.
23,800/-, comprising twenty-three PKR. 1,000/- currency notes (P-7/1-23), three PKR. 500/- currency notes (P-8), and three PKR. 100/- currency notes (P-9/1-3), along with Q-Mobile mobile phone (P- 10) containing SIM bearing No. 0315-8112019 P-11, all of which were seized via recovery memo Exh.PD.
The truck in question was also taken into custody via recovery memo Exh.PE and all the recovery proceedings were attested by Muhammad Kazim Munir, SI and Shahid Niaz 100/HC. Subsequently, PW-5 drafted the complaint and dispatched it to police station Shaher Sultan through PW-2/Abdul Qayoom 761/C for registration of formal FIR. Consequently, the present FIR (Ex.PF) was lodged against the appellants.
4. After completion of all codal formalities, report/challan under section 173 of the Code was prepared and submitted before the learned Trial Court. Thereafter, learned Trial Court framed formal charge against the appellants on 29.04.2021 under section 9(c) of CNSA, to which appellants pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution produced as many as six witnesses. Moharrar Ghulam Mustafa 1298/HC deposed as PW-1 in respect of safe custody of the sample parcels as well as safe custody of case property. Abdul Qayoom, 761/C (PW-2) deposed in respect of transmitting the complaint to police station for lodging of FIR, Muhammad Kazim Munir, SI, the attestor of recovery memo appeared as PW-3. Muhammad Zohair Imran, who lodged the FIR, appeared as PW-4.
Mukhtiar Hussain, SI, the complainant of the case appeared as PW-5 and Abdul Rehman, the Investigating Officer of the case, appeared as PW-6.
6. On 29.09.2021, the learned Deputy District Public Prosecutor gave up the prosecution witness, namely, Shahid Niaz 100/HC as unnecessary and closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency (Exh.PJ).
7. After closing of prosecution evidence, statements of the appellants were recorded under section 342 of the Code wherein the appellants pleaded their innocence and in reply to the query as to why the PWs had deposed against them, they stated that the local police registered this false FIR just to show the departmental progress at the behest of SHO concerned. All the PWs being police, who deposed falsely against them just to strengthen the prosecution being subordinate of the Investigating Officer. The appellants opted not to appear in terms of section 340(2) of the Code and did not adduce any defence evidence.
8. After completion of evidence and hearing both the parties, the learned Trial Court found the appellants guilty and sentenced them as referred to above.
9. The main thrust of learned counsel for the appellants was that the prosecution could not prove the safe custody of the case property as well as transmissions of sample parcels for forensic analysis and averred that the appellants may be acquitted of the charges since the Moharrar of the Malkhana where the case property was forwarded for safe custody has not been produced.
Conversely, the learned Deputy Prosecutor General vehemently opposed the contention raised on behalf of the appellant and faithfully supported the impugned judgement while praying for the dismissal of the Criminal Appeal and confirmation of the Capital Sentence Reference.
10. After thoroughly considering the respective arguments of learned counsel for the appellants, the learned Deputy Prosecutor General, we have perused the available record.
11. Under the law, due to the provision of Section 29 of the CNSA, the burden of proof in cases pertaining to narcotics substances, unlike prosecution under the Pakistan Penal Code 1860 ("PPC"), is inverted. This principle of reverse burden of proof is not alien to our law as the scheme of CNSA is akin to the Offences in Respect of Banks (Special Courts) Ordinance 1984 ("Ordinance of 1984") and National Accountability Ordinance 1999 ("NAO"), where too there is reverse burden of proof as per Section 9 of the Ordinance of 1984; and, Section 14(c) of NAO, since omitted vide Section 10 of Act XI of 2022. However, just because the burden of proof is inverted does not mean that the prosecution does not have to establish its case. It follows from the perusal of cases such as "Asfand Yar Khan Wali" (PLD 2001 Supreme Court 607) and "Kashif Amir v. The State" (PLD 2010 Supreme Court 1052) that the principle of reverse burden only triggers when a good prima facie and reasonable case is made out against the accused. Meaning thereby that the initial burden is always on the prosecution to establish guilt of the accused [See "Ismaeel v. The State" (2010 SCMR 27); and, "Muhammad Hashim Babar v. The State and another" (2010 SCMR 1697)]. Once prima facie guilt is established, would the principle of reverse burden of proof start running against the accused. Where prosecution fails to discharge said initial burden, principle of reverse burden of proof/presumption of guilt would not get triggered and apply to accused [See "Pir Mazharul Haq and others v. The State through Chief Ehtesab Commissioner, Islamabad" (PLD 2005 SC 63)].
Reason being that presumption of truth guards accused until prosecution has produced enough evidence to satisfy guilt beyond a reasonable doubt ["Muhammad Asghar alias Nannah and another v. The State" (2010 SCMR 1706)]. It follows that in order to meet the prima facie prerequisite for triggering the presumption of reverse burden of proof, the salient features on which the prosecution has to establish, as held in "Zain Ali v. The State" (2023 SCMR 1669), are (i) receipt of information, (ii) action by the concerned law enforcing agency, (iii) recovery of contraband narcotics, (iv) the report of chemical examiner regarding analysis of the recovered contraband, (v) the finding of fact by the courts below after recording of evidence i.e. (a) witnesses of the raiding party, (b) the recovery witnesses, (c) Investigating Officer and all other attending circumstances.
12. Insofar as the recovery of contraband is concerned, it needs no reminding that the chain of custody begins with the recovery of the seized drug by the investigating agency and is inclusive of separation of the representative sample(s) of the seized drug and their dispatch to the laboratory for forensic analysis. It is the bounden duty of the prosecution to establish that the chain of custody of sample parcels was unbroken, unsuspicious, indubitable, safe and secure because any break in the chain of custody or lapse in the control of possession of the sample, casts doubt on the safe custody and safe transmission of the sample(s), which in turn impairs the conclusiveness and reliability of the Report of the Government Analyst, thereby rendering it incapable of sustaining conviction. Reliance is placed upon "Asif Ali and another v. The State through Prosecutor General Punjab" (2024 SCMR 1408); "Javed Iqbal v. The State" (2023 SCMR 139), "Abdul Ghafoor v. The State" (2022 SCMR 819); "Mst. Sakina Ramzan v. The State" (2021 SCMR 451); "Abdul Ghani and others v. The State and others" (2019 SCMR 608); "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).
13. With the aforementioned principles of law in mind, the record was perused and it was straightaway observed that although the prosecution got appeared Moharrar Ghulam Mustafa as PW-1, who deposed qua deposit of entire case property, except the truck in Malkhana Jatoi, through PW-5 vide road certificates bearing No. 89/2021 and 90/2021, however, the prosecution has failed to produce the Moharrar of the Malkhana Jatoi as witness in order to substantiate that the chain of custody of the so-called recovered contraband remained unshattered. Additionally, according to Moharrar PW-1, sample parcels were handed over to PW-5 on 27.01.2021 at 12:30 pm, whereas, PW-5 during the course of his examination-in-chief deposed that 54 samples were handed over to him on 28.01.2021 for onward transmission to PFSA. Report of PFSA (Exh.PG) reflects that sample parcels were received by the laboratory on 28.01.2021. The break in the chain of one day, as noted above, is sufficient to cast doubt about the safe custody of the sample parcels, as well as the safe transmission of the same to the laboratory, thereby impairing the credibility and reliability of the PFSA Report (Exh.PG).
14. Furthermore, the Punjab Police Rules 1934 ("Police Rules") mandate that register No. XIX (Store- Room Register as prescribed in Rule 22.70 of the Police Rules) shall be maintained in the police station wherein, with the exception of articles already included in Register No. XVI, every article placed in the store room (Malkhana) shall be entered and the removal of any such article shall also be noted in the appropriate column. [See "Asif Ali and another v. The State through Prosecutor General Punjab" (2024 SCMR 1408)]. In this regard, it has been observed that PW-1 was confronted with register No. XIX (Store-Room Register as prescribed in Rule 22.70 of the Punjab Police Rules 1934), who admitted that in Column No. 3 of register No. XIX , the name of Abdul Rehman, SI (PW-6)/Investigating Officer of the case, finds no mention as the person who submitted the case property. The relevant portion of his statement is reproduced as under: 'It is correct that column No.3 of register No.19 related to the date of submission and the name who submitted the case property. It is correct that name of Abdul Rehman SI is not mentioned in column No.3 of register No.19. It is correct that date and time is also not mentioned in column No.3 of register No.19'.
This aforementioned confrontation with register No. XIX of PW-1, in particular when name of Abdul Rehman SI who according to prosecution handed over the case property to PW1 Ghulam Mustafa Moharrar is not mentioned in the relevant column of register No. XIX, culminated with contradictions mentioned hereinabove and lack of time and date being mentioned in column No. 3 of register No. XIX, conspicuously show that the handing over of the case property to the Moharrar and the person who purportedly handed over to him are shrouded in mystery.
15. In the same vein, Mukhtiar Hussain (PW-5), in his cross examination stated that while preparing the parcel, Abdul Rehman, SI/IO (PW-6) reached the spot and the parcel was sealed in his presence. He further deposed that PW-6 reached the place of occurrence at 02:45 pm, whereas, the stance of PW-5 is not only contradicted by the story mentioned in the complaint (Ex.PJ) which was drafted at 12:40 pm and FIR which was lodged at 01:05 pm which reflects that first the parcels of case property along with sample parcels were prepared before application for registration of Crime Report was drafted but also contradicted by PW-6 in cross-examination, who deposed that when he reached at the place of occurrence, the parcels were already sealed and he had not seen the chars in open condition. This fact raises serious concerns qua the veracity of the prosecution story, specifically, if the samples and case property were sealed in presence of PW-6/IO after 02:45 pm then why the complainant mentioned the fact of sealing of case and sample parcels in complaint (Exh.PJ). Culminatory reading of the aforementioned defect undermines the probative value of the prosecution's evidence, leading this Court to conclude that the purported secure custody of the recovered contraband remains unacceptably uncertain.
16. In view of the aforementioned deliberation, it cannot be stated with any degree of certainty that the prosecution had succeeded in establishing its case against the appellants beyond any reasonable doubt, as adumbrate thereto, prosecution has failed to prove its case through cogent, reliable and trustworthy evidence. To this end, it is trite that it is not necessary that there be multiple infirmities in the prosecution case or several circumstances creating doubt. A single or slightest doubt, if found reasonable, in the prosecution case would be sufficient to entitle the accused to its benefit, not as a matter of grace and concession but as a matter of right. Reliance in this regard may be placed on the cases reported as "Barkhudar v. The State and another" (2023 SCMR 1791); "Lal Jan v. The State" (2023 SCMR 1009); "The State v. Ahmed Omer Sheikh" (2021 SCMR 873); "Muhammad Mansha v. The State" (2018 SCMR 772); "Khalid Mehmood v. The State"
(2011 SCMR 664); "Muhammad Akram v. The State" (2009 SCMR 230); "Ghulam Qadir v. The State" (2008 SCMR 1221); and, "Tariq Pervaiz v. The State" (1995 SCMR 1345).
17. Consequently, the Capital Sentence Reference forwarded by the learned Trial Court is answered in negative, whereas, the Criminal Appeal of the appellants is allowed and they are acquitted of the charges levelled against them. Therefore, the appellants are directed to be released forthwith, provided they are not required in any other case. Case property shall be dealt with as directed by the learned Trial Court.