Muhammad Ramzan vs State etc.

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN.

JUDICIAL DEPARTMENT

Criminal Appeal No. 979-J of 2023 (Muhammad Ramzan Vs. The State)

JUDGMENT

Date of hearing: 24.06.2025.

Appellant by: M/s Israr Hayat Sulehria, Advocate.

State by: Malik Riaz Ahmad Saghla, Additional Prosecutor General alongwith Mumtaz, Sub- Inspector.

TANVEER AHMAD SHEIKH, J: - The appellant namely Muhammad Ramzan son of Muhammad Bakhsh was tried by the learned Additional Sessions Judge, Mailsi, District Vehari, in case F.I.R.

No.120/2023, dated 10.02.2023, registered at the Police Station City, Mailsi, District Vehari, in respect of offence under Section 9(1)-3c of the Control of Narcotic Substances Act, 1997 as amended by the Control of Narcotic Substances (Amendment) Act 2022. The learned trial court vide judgment dated 13.10.2023 convicted the appellant namely Muhammad Ramzan son of Muhammad Bakhsh and sentenced him as infra:

Muhammad Ramzan son of Muhammad Bakhsh:- Rigorous Imprisonment for ten years under section 9(1)-3c of the Control of Narcotic Substances Act, 1997 as amended by the Control of Narcotic Substances (Amendment) Act, 2022 and ordered to pay fine of Rs.2,00,000/- and in default thereof to further undergo simple imprisonment for a period of six months.

The appellant was extended the benefit provided under section 382-B of the Code of Criminal Procedure, 1898.

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2.Feeling aggrieved, Muhammad Ramzan son of Muhammad Bakhsh (convict) lodged the instant Criminal appeal No.979 of 2023 assailing his conviction and sentence.

3.Precisely, the necessary facts of the prosecution case as stated by the prosecution witnesses are that on 10.02.2023, the appellant namely Muhammad Ramzan son of Muhammad Bakhsh was apprehended and 1320 grams of Charas (P-1) was recovered from his possession which was taken into possession through recovery memo (Exh.PC).

4.On the above stated facts F.I.R. No.120/2023 (Exh.PA), dated 10.02.2023, was registered at Police Station City, Mailsi, District Vehari, in respect of offence under Section 9(1)-3c, of the Control of Narcotic Substances Act, 1997 as amended by the Control of Narcotic Substances (Amendment) Act, 2022.

5.After the formal investigation of the case, report under section 173 of the Code of Criminal Procedure, 1898, was submitted before the learned trial court and the appellant was sent to face trial. The learned trial court framed the charge against the accused on 02.05.2023 under section 9(1)-3c, of the Control of Narcotic Substances Act, 1997 as amended by the Control of Narcotic Substances (Amendment) Act, 2022. The appellant pleaded not guilty and claimed trial.

6.In order to prove the facts in issue the prosecution got as many as five witnesses examined in total. Muhammad Ramzan, ASI, (PW-3), the complainant of the case, Hamid Hussain 639/C (PW-2) and Muhammad Nawaz 981/C (PW-4), narrated the facts leading to the recovery of 1320 grams of Charas and made their detailed statements before the learned trial court. Muhammad Mubashar Anees 1028/HC (PW-1) stated that on

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10.02.2023 he received two sealed parcels, one sealed parcel, said to contain sample, drawn and separated from the recovered narcotic substance and the other sealed parcel, said to contain the remaining recovered Charas, by Muhammad Mumtaz, S.I./SHO (PW-5), the Investigating Officer of the case. He deposed that on 05.03.2023, he handed over one sealed parcel, said to contain the sample, drawn and separated from the recovered Charas to Muhammad Ramzan, A.S.I. (PW-3) for its onward transmission to Punjab Forensic Science Agency. Muhammad Mumtaz Qureshi, S.I. (PW-5) is the Investigating Officer of the case and while functioning as such, he deposed regarding transferring of custody of the case property to the Moharrar namely Muhammad Mubashar Anees 1028/HC (PW-1), till the preparation of the report under section 173 of the Code of Criminal Procedure, 1898 and detailed the facts of his investigation in his statement before the learned trial court.

7.On 12.10.2023, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Muhammad Javaid 868/C as being unnecessary and closed the prosecution evidence after tendering in evidence the report of the Punjab Forensic Science Agency (Exh.PE).

8.After closing of prosecution evidence, the statement of the appellant was recorded under section 342 of Code of Criminal Procedure, 1898 and the appellant pleaded his innocence and in reply to as to ‘why the PWs had deposed against him’, he stated that the witnesses were police officials who deposed falsely against him just to strengthen the prosecution being subordinate of the complainant of the case. The appellant opted not to

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appear in terms of section 340(2) of the Code of Criminal Procedure, 1898 and did not adduce any evidence in his defence.

9.After completion of evidence and hearing both the parties, the learned trial court held the appellant guilty of the offence and sentenced the appellant as referred to above.

10.The learned counsel for the appellant argued that the appellant was innocent and he had been falsely implicated in the instant case. The learned counsel contended that all the witnesses in this case are from the police and the prosecution had not produced even a single independent/private witness who could corroborate their testimony. The learned counsel contended that the report of the Punjab Forensic Science Agency, Lahore had no legal value and could not be read against the appellant. Lastly, the learned counsel argued that the prosecution evidence was discrepant and incoherent. The learned counsel for the appellant contended that there was at least one contradiction in the testimony of the prosecution witnesses that spoiled it altogether and made it untrustworthy.

11.On the other hand, the learned Additional Prosecutor General appearing on behalf of the State submitted that the prosecution has proved the charge by producing admissible and relevant evidence. He further submitted that the appellant himself got the contraband recovered. He contended that the appellant had failed to prove the motive for the false implication that he had pleaded in his defence. The learned Additional Prosecutor General further submitted that all the witnesses have corroborated each other. He requested that the appeal be dismissed.

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12.We have heard the learned counsel for the appellant as well as the learned Additional Prosecutor General and perused the record.

13.We have very carefully perused the statements of the witnesses produced by the prosecution. The perusal of the prosecution case reveals that there is more than one circumstance pointing towards the false involvement of the appellant in this case. We have noticed that it is apparent from the prosecution evidence that the prosecution could not prove the safe transmission of the sealed parcel, said to contain the sample, drawn and separated from the recovered narcotic substance, from the Police Station to the Punjab Forensic Science Agency. In this regard, we have noticed that Muhammad Mubashar Anees 1028/HC (PW-1) stated that it was on 05.03.2023 that he handed over the one sealed parcel, said to contain the sample, drawn and separated from the recovered narcotic substance, to Muhammad Ramzan, A.S.I. (PW-3) for its transmission to the office of the Punjab Forensic Science Agency and Muhammad Ramzan, A.S.I. (PW-3) also stated that it was on 05.03.2023 that he received the one sealed parcel, said to contain the sample, drawn and separated from the recovered narcotic substance from Muhammad Mubashar Anees 1028/HC (PW-1) and then deposited the same in the office of Punjab Forensic Science Agency on 06.03.2023, however, Muhammad Mubashar Anees 1028/HC (PW-1) admitted during cross-examination that from the perusal of the entries made in Register No.II, maintained at the Police Station, the arrival and departure of Muhammad Ramzan, A.S.I. (PW-3) on 05.03.2023 in the said Police Station was not even recorded. During cross-examination, Muhammad Mubashar Anees 1028/HC (PW-1) admitted as under:-

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“Copy of Rappats register Roznamcha dated 05.03.2023 are present before me where factum regarding arrival and departure of Muhammad Ramzan ASI is not mentioned. No Rappat regarding depositing sample parcel to PFSA is mentioned on dated 06.03.2023. No Rappat regarding depositing of remaining chars on 29.03.2023 is available on record."

Now according to the Police Rules, it is necessary that the arrival and departure of every police official be entered in the Register No.II, as maintained under Rule 22.48 of the Police Rules, 1934, and the entries to be made in Register No.II specifically provide that in the said Register the record of all the events which take place at the Police Station on that particular day including the movements of the police officers and visitors are to be recorded and the names of the persons in custody have to be mentioned and the offence for which they have been arrested are also to be mentioned and in the last entry of each day the balance of cash in hand and the balance of the cattle-pound account is to be mentioned. Rule 22.48 of the Police Rules, 1934, provides as under:-

22.48. Register No. II. -[(1) The Daily Diary shall be maintained in accordance with Article 167 of the Police Order, 2002. It shall be in Form 22.48(1) and shall be maintained digitally as well as two copies be made in the same uniform process. One shall remain in the police station in the shape of register and the other shall be dispatched to a Gazetted Officer to be designated by the Superintendent of Police or to the Superintendent of Police himself every day at the hours fixed in this behalf.] Shortly before the close of each quarter, books containing the proper number of pages for the ensuring three months shall be issued to police stations by the Superintendent. The Superintendent shall fix the hours at which station diaries shall be daily closed with reference to the hour of dispatch of the post or messenger.

(2)The daily diary is intended to be complete record of all events which take place at the police station. It should, therefore, record not only the movements and activities of all police officers, but also visits of outsiders,

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whether official or non-official, coming or brought to the police station for any purpose whatsoever.

(3)All entries in the station diary shall be made by the officer in charge of the police station clerk. Literate officers making a report shall read the report recorded and append their signatures. Every matter recorded in such diary shall be so recorded as soon as possible; each separate entry shall be numbered and the hour at which it was made shall commence each such entry. If the hour at which the information, or otherwise containing such entries reaches the police station differs from the hour at which such entry was made, both hours shall be stated. As soon as an entry has been made in the diary, a line shall be drawn across the page immediately below it.

(4)The opening entry each day shall give the name of each person in custody, the offence of which he is accused, and the date and hour of his arrest, the name of each accused person at large on bail or recognizance and the date of his release on such security.

The last entry each day shall show (a) the balance of cash in hand as shown in the cash account, and (b) the balance of the cattle-pound account.”

Now, as admitted by Muhammad Mubashar Anees 1028/HC (PW-1) that there were no entries made in the relevant Register No.II on 05.03.2023 reflecting the arrival and departure of Muhammad Ramzan, A.S.I. (PW-3) in the Police Station, therefore, it cannot be said that the said sealed parcel, said to contain the sample, drawn and separated from the recovered narcotic substance, was handed over to said Muhammad Ramzan, A.S.I. on 05.03.2023. It is trite law that men may lie but the documents do not. The very entries made in the Register No.II rather the lack of entries made in the Register No.II with regard to the arrival and departure of Muhammad Ramzan, A.S.I. (PW-3) in the Police Station on 05.03.2023 create a huge flaw in the prosecution case with regard to the safe transmission of the sealed parcel, said to contain the sample, drawn and separated from the recovered narcotic substance from the Police Station to the Punjab Forensic

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Science Agency. Moreover, it is also a fact that though the alleged narcotic substance was recovered on 10.02.2023, however, the sealed parcel, said to contain the sample, drawn and separated from the recovered narcotic substance was shown to be sent to the Punjab Forensic Science Agency only on 05.03.2023, without any explanation for said delay in the transmission, which also creates a doubt with regard to the safe transmission of the said sealed parcel, said to contain the sample, drawn and separated from the recovered narcotic substance. In this regard, reliance is placed on Mst.

Sabiran Bibi v. The State (Crl. P.L.A. No.379/2025), decided on 30.05.2025, wherein the august Supreme Court of Pakistan has observed as under:- “We have also observed that contraband narcotics allegedly recovered from the petitioner were seized on 19.11.2022; however, the samples were dispatched for chemical analysis to the PFSA on 23.11.2022, after a delay of 4 days for which no explanation, much less plausible, has been furnished by the prosecution. In cases involving recovery of narcotic contraband, the chemical analysis report constitutes the cornerstone of the prosecution's evidence. Such an inordinate delay in forwarding the seized items to PFSA inevitably casts a shadow of doubt on the integrity and authenticity of the samples. In such view of the matter the possibility of tampering, substitution, or contamination of the seized narcotics cannot be excluded.”

The guidance is sought from the binding decision of the august Supreme Court of Pakistan in cases titled “Ahmed Ali and another v. The State” (2023 SCMR 781), wherein the apex Court while referring to Rule 4 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, regarding dispatch of sample for test or analysis, has enunciated as under:- “The above provisions make it clear that samples of reasonable quantity have to be drawn at the spot from the narcotic substances and the same have to be

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dispatched to the nearest Testing Laboratory. It is important to note that the samples have to be dispatched for analysis at the earliest, but not later than seventy-two hours of the seizure. Further, the samples have to be dispatched for analysis, either by insured post or through special messenger duly authorized for the purpose, under the cover of a "Test Memorandum” specified in Form-l and the envelope should be sealed and marked as "Secret Drug Sample/Test Memorandum" (emphasis supplied).

It is a well-established principle of law that when law requires a thing to be done in a particular manner, the same must be done accordingly and if the prescribed procedure is not followed, it would be presumed that the same has not been done in accordance with law.

14.The whole prosecution case is dependent upon the report of the Punjab Forensic Science Agency and reliance upon the same can only be placed in the circumstances when safe transmission of the recovered narcotic substances from the place of recovery to Police Station and from Police Station to Punjab Forensic Science Agency, is proved, however, in this case for the above reasons, statements made by the prosecution witnesses, the said safe transmission of the recovered narcotic substance from the place of recovery to Police Station and from Police Station to Punjab Forensic Science Agency could not be proved. The learned Additional Prosecutor General is unable to explain these discrepancies in the prosecution case.

These aspects of the case have convinced us that the whole prosecution case is faulty beyond repair. This portion of the prosecution evidence proves that there are missing links in the chain relating to taking into possession of the case property from the place of occurrence and its submission to the Punjab Forensic Science Agency, Lahore and its production before the learned trial court. We have queried the learned Additional Prosecutor General for the

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State to clarify that what was the evidence available on the record to confirm that the recovered Charas had indeed been kept in safe custody but after going through the record of this case from cover to cover, he remained unable to refute that there is no consistent evidence in this regard. In such a state of contradictory evidence available on the record, safe custody of the recovered substances or its sample is not discernable from the record of this case and, thus, we have found it to be extremely unsafe to uphold and maintain the appellant's conviction and sentence recorded by the learned trial Court. In the absence of such evidence, the prosecution, which must establish that the chain of custody of the recovered Charas was unbroken, unsuspicious, indubitable, safe and secure, has failed to do so. The break in the chain of custody and lapse in the control of possession of the recovered narcotic substances casts doubts on the safe custody and safe transmission of the articles and impairs and vitiates the conclusiveness and reliability of the report of the Punjab Forensic Science Agency, Lahore, thus, rendering it incapable of sustaining conviction. To prove the safe custody of the recovered narcotic substances was pivotal for the prosecution, as the entire construct of the Control of Narcotic Substances Act, 1997, and the Control of Narcotic Substances (Government Analysts) Rules, 2001 rested on the report of the Punjab Forensic Science Agency, Lahore, which in turn rested on the process of sampling and its safe and secure custody. It is impossible for us to determine safe and secure custody of the recovered narcotic substances. In the absence of this certainty, we cannot believe the case of the prosecution as it is. Irreconcilable obscurities have crept into the case of the prosecution which can be given the benefit to the appellant only. Reliance in this respect is placed on the case of “Mst. SAKINA RAMZAN versus

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State”(2021 SCMR 451) wherein the august Supreme Court of Pakistan has held as under:-

“The chain of custody or safe custody and safe transmission of narcotic drug begins with seizure of the narcotic drug by the law enforcement officer, followed by separation of the representative samples of the seized narcotic drug, storage of the representative samples and the narcotic drug with the law enforcement agency and then dispatch of the representative samples of the narcotic drugs to the office of the chemical examiner for examination and testing. This chain of custody must be safe and secure. This is because, the Report of the Chemical Examiner enjoys critical importance under CNSA and the chain of custody ensures that correct representative samples reach the office of the Chemical Examiner. Any break or gap in the chain of custody i.e., in the safe custody or safe transmission of the narcotic drug or its representative samples makes the Report of the Chemical Examiner unsafe and unreliable for justifying conviction of the accused. The prosecution, therefore, has to establish that the chain of custody has been unbroken and is safe, secure and indisputable in order to be able to place reliance on the Report of the Chemical Examiner.”

Though there is a slight difference by virtue of section 29 of the Control of Narcotic Substances Act, 1997 in the manner and standard of proof in cases registered under the said Act but the prosecution is always bound to discharge the initial onus of proof. This is now a settled principle of law that in every case, the burden to prove the guilt of the accused always lies on the prosecution. Even the slightest doubt results in the failure of the case of the prosecution. Benefit of doubt is not to be granted as a concession but as of right to the accused. The prosecution by mishandling the case has badly failed to bring on record unimpeachable and cogent evidence to prove the culpability of the appellant. In the light of the above noted infirmities, we are inclined to observe that the prosecution has miserably failed to bring home the guilt of the accused. The prosecution case suffers from inherent defects which are irreconcilable as it is. The guidance is sought from the binding decisions of the august Supreme Court of Pakistan in cases titled Ikramullah and others Vs. The State (2015 SCMR 1002), Akhtar Iqbal Vs. The State

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(2015 SCMR 291) and Muhammad Hussain Vs. The State (2008 SCMR 345). The august Supreme Court of Pakistan in the case of Muhammad Mansha Vs. The State ( 2018 SCMR 772) has enunciated the following principle:

“Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State

(2014 SCMR 749).”

15.For what has been discussed above, we are persuaded to hold that the conviction and sentence recorded by the learned Additional Sessions Judge, Mailsi, District Vehari, vide judgment dated 13.10.2023, in the circumstances, are not sustainable. We, thus while allowing the instant Criminal Appeal No.979 of 2023, lodged by Muhammad Ramzan son of Muhammad Bakhsh, set-aside the judgment dated 13.10.2023, passed by the learned Additional Sessions Judge, Mailsi, District Vehari, and acquit the appellant namely Muhammad Ramzan son of Muhammad Bakhsh of the charge leveled against him by extending him the benefit of doubt. The appellant namely Muhammad Ramzan son of Muhammad Bakhsh, is in custody and he is directed to be released forthwith if not required in any other case.

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16.The case property shall be dealt with as directed by the learned trial court. The record of the learned trial court be sent down immediately.

(SADIQ MAHMUD KHURRAM) (TANVEER AHMAD SHEIKH)

JUDGE JUDGE

Approved for reporting.

JUDGE JUDGE

Gull*