Zulfiqar Ali vs State

Stereo. HCJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT

BAHAWALPUR BENCH, BAHAWALPUR

JUDICIAL DEPARTMENT

Criminal Appeal No. 500/J/2024 Zulfiqar Ali v. The State

JUDGMENT

Date of hearing: 02.07.2025 Syed Zeeshan Haider, Advocate, assisted by For the Appellant: Ch. Sarfraz Noor Meo and Ch. Saad Rasool Gill, Advocates.

Rao Riaz Ahmad Khan, Deputy Prosecutor For the State:

General.

Tariq Saleem Sheikh, J. – This appeal is directed against the judgment dated 03.10.2024 passed by the Additional Sessions Judge, Rahimyar Khan, in case FIR No. 498/2023 dated 14.11.2023 registered at Police Station Airport, Rahimyar Khan.

2.The brief facts of the case are that on 14.11.2023, PW-3 Muhammad Tayyab Shahid/ASI (the “Complainant”) was on patrol duty with other police officials. They were at Noor-e-Wali Phatak when he received information from a source that a drug peddler named Zulfiqar Ali (the “Appellant”), who deals in narcotics, was spotted in Basti Bibran, Mouza Bindoor, and that he could be arrested if immediate action was taken. On this tip-off, around 12:40 p.m., the Complainant reached the specified place and noticed a man who tried to flee upon seeing the police party, but the Complainant apprehended him with the help of other members of his squad. He checked the bag he was holding and recovered five pieces of charas, each weighing 1200 grams (total: 6000 grams). The Appellant’s personal search yielded his CNIC (P-3) and Wattak amount of Rs. 1000/- (P-2/1-10). The Complainant segregated 60 grams of charas from each piece and prepared five sealed sample parcels for chemical analysis. Then, he secured the remaining charas (P-1) through a separate sealed parcel and took all six parcels along with CNIC and the Wattak amount in his possession vide

Recovery Memo Exh. PA. After that, he drafted the complaint Exh. PB and sent it to the police station through Muhammad Imran 1476/C (PW-5) on which FIR No. 498/2023 Exh. PC was registered. A report under section 173 Cr.P.C. was submitted upon completion of the investigation.

3.On 27.2.2024, the Additional Sessions Judge indicted the Appellant. He pleaded not guilty. After trial, vide judgment dated 3.10.2024, the court convicted him under section 9(1)-3(d) of the Control of Narcotic Substances Act, 1997 (the “CNSA”) and sentenced him to 14 years’ rigorous imprisonment with a fine of Rs.400,000/- or six months’ simple imprisonment in the event of default. He was extended the benefit of section 382-B Cr.P.C. Hence, this appeal.

4.The Appellant’s counsel, Syed Zeeshan Haider, Advocate, contended that there were material contradictions in the prosecution evidence which rendered it unreliable. Additionally, the prosecution failed to establish the safe custody of the case property and the secure transmission of the sealed sample parcels to the Punjab Forensic Science Agency (PFSA). In such circumstances, the positive report of the Government Analyst (Exh. PE) was of no evidentiary value. Mr. Haider further submitted that the Appellant was not confronted with the recovered narcotics during the trial, and the same was not properly exhibited in accordance with the law. On these grounds, he maintained that the conviction recorded against the Appellant was not sustainable and liable to be set aside.

5.Rao Riaz Ahmad Khan, Deputy Prosecutor General (DPG), vehemently opposed this appeal. He contended that the prosecution had proved its case beyond any doubt. Tayyab Shahid/ASI (PW-3) and Ghulam Mujtaba 540/C (PW-4) testified that 6000 grams of charas had been recovered from the Appellant in their presence. Their testimony, he argued, was corroborated by a positive report from the government analyst, Exh. PE. The DPG submitted that there were no material contradictions in the case that could benefit the Appellant. He asserted that the recovered narcotics were duly exhibited during the trial as P-1

and contended that Mr. Haider’s contention in this regard was misconceived. He prayed for the dismissal of this appeal.

6.Arguments heard. Record perused.

7.The Appellant was charged under section 9(1)-3(d) of the CNSA. The prosecution examined six witnesses against him. Tayyab Shahid/ASI (PW-3), the Complainant and a recovery witness, deposed that on 14.11.2023, he apprehended the Appellant from Basti Bibran, Mouza Bindoor, District Rahimyar Khan, and recovered 6000 grams charas that he was carrying in a camel colour bag with the monogram “Pramamilano”. The charas was blackish brown and in five pieces, wrapped in a white polythene shopper with transparent yellow tape with endorsement “N.20”. Each piece weighed 1200 grams on a digital scale. He separated 60 grams from each piece and prepared five sealed sample parcels for chemical analysis. Then he sealed the remaining 5700 grams of charas and the bag in another parcel, P-1, and affixed the seal carrying his acronyms “M.T.” on each parcel. PW Tayyab Shahid further stated that he searched the Appellant and recovered Rs. 1000/- (Wattak money) (P-2/1-10), original CNIC (P-3). Then, he secured all the sealed parcels of charas and the Appellant’s belongings vide Recovery Memo Exh. PA in the presence of Shafqat Ahmad 74/C-II and Ghulam Mujtaba 540/C (PW-4). When the Investigating Officer, Shaukat Ali/SI (PW-6) reached the spot, he handed over the case property and custody of the Appellant to him. PW Ghulam Mujtaba corroborated him.

8.Shaukat Ali/SI (PW-6) testified that on his return to the police station, he entrusted the case property to Moharrar Javed Iqbal 2033/HC (PW-2) for safekeeping in the police station’s Malkhana. PW Javed Iqbal confirmed that he kept it there and, on 15.11.2023, handed over five sealed sample parcels to Tayyab Shahid/ASI (PW-3) for transmission to the PFSA. Also on 15.11.2023, he handed over the remaining case property, i.e., a parcel of 5700 grams charas, a bag, Wattak money and the Appellant’s CNIC to Shaukat Ali/SI (PW-6) for deposit in Malkhana City Circle, Rahimyar Khan. PWs Tayyab Shahid/ASI and Shaukat Ali/SI confirmed receiving the aforementioned

Crl. Appeal No. 500/2024 -4-

parcels and depositing them in the PFSA office and the Malkhana City Circle, Rahimyar Khan, respectively. Anwar-ul-Haq 1029/HC (PW-1) confirmed that on 15.11.2023, he was serving as Incharge Malkhana City Circle Rahimyar Khan and received one sealed parcel containing 5700 grams charas, a bag, Wattak money, and the Appellant’s original CNIC for safekeeping in the Malkhana.

9.Rule 22.16 of the Police Rules contains detailed provisions for handling the case property. Safe custody of the case property, including both the sample parcels and the remaining bulk, is pivotal in prosecutions based on the recovery of contraband material. The prosecution must establish that the chain of custody remained intact at every stage. The Lahore High Court Rules and Orders, Volume III, Chapter 24-B, Part B, Rule 14-E mandates: “The evidence should never leave it doubtful as to what person or persons have had charge of such articles throughout the various stages of the inquiry if such doubt can be cleared up. This is especially necessary in the cases of articles sent to the Chemical Examiner. The person who packs, seals, and dispatches such articles should invariably be examined.” The Supreme Court of Pakistan reaffirmed the principle in numerous cases.1 Rule 14-E, supra, must be read in tandem with the Police Rules.

10.According to the prosecution, on 14.11.2023, the Complainant, Tayyab Shahid/ASI (PW-3), was on patrol duty with other police officials. He was at Noor-e-Wali Phatak when he received source information, conducted the raid in Basti Bibran, and apprehended the Appellant. During the trial, however, no entry from the Roznamcha was produced to establish that PW Tayyab Shahid and his squad were on patrol duty on the relevant date and time, or with respect to the subsequent movement of the police officials related to this case.

11.Similarly, the prosecution led only oral evidence regarding the movement of the case property. Although Moharrar Javed Iqbal 2033/HC (PW-2) testified that on 14.11.2023 he received six sealed See, for example, The State v. Imam Bakhsh and others (2018 SCMR 2039), Qaiser Javed Khan v. The State and another (PLD 2020 SC 57), Mst. Sakina Ramzan v. The State (2021 SCMR 451) and Jeehand v. The State (2025 SCMR 923).

parcels from Shaukat Ali/SI (PW-6) for safekeeping in the police station’s Malkhana, and that on the following day he handed over five sample parcels to PW Tayyab Shahid for transmission to the PFSA and returned the remaining case property to PW Shaukat for deposit in the City Circle Malkhana, he failed to support this claim with documentary evidence. In particular, he did not produce the relevant entries from Register No. XIX or the Road Certificate, through which the sample parcels were allegedly dispatched. We have noted that during his cross- examination, PW Javed Iqbal stated that he handed over the sample parcels to PW Tayyab Shahid on 15.11.2023 vide Road Certificate No.919/21, but that document was not produced in court. This omission created a serious gap in the prosecution’s attempt to establish a continuous and secure chain of custody. It cannot be treated as a mere procedural lapse or a curable irregularity.

12.The Lahore High Court Rules and Orders, Volume III, Chapter 24-B, Part B, lays down detailed procedures for producing and marking physical evidence during trial. Rule 14-F requires that every article forming part of the circumstantial evidence (such as clothes, weapons, narcotics, or money) must be produced in the court, and its identity and connection with the case must be established through competent witnesses. Rule 14-H provides that such articles, once admitted in evidence, must be properly marked as “admitted” or “not admitted”, and those admitted should be assigned exhibit numbers in serial order. These requirements are mandatory. Since the following discussion turns on Rules 14-F and 14-H, they are reproduced below for ready reference:

14-F. Every article to be produced.– Clothes, weapons, money, ornaments, food, and every article which forms a part of the circumstantial evidence should be produced in Court, and their connection with the case and identity should be proved by witnesses.

14-H. Exhibits.– All exhibits should be marked with a letter or numbers. Articles which are produced in evidence should have a label attached to them bearing a number, and that number should be quoted throughout the record wherever any such article is referred to and should be distinctly marked as “admitted or not admitted”. If the exhibits have already been assigned numbers by the police, that series of numbers should be mentioned to avoid confusion.

A printed label should be affixed or attached to each exhibit containing the following particulars:- ... The Sessions Judge, should see that these entries are properly made.

13.To properly apply Rules 14-F and 14-H, it is necessary to understand the term “exhibit” clearly. As a verb, it means “to show or display; to offer or present for inspection”.2 As a noun, it connotes “a paper or document produced and exhibited to a court during a trial or hearing, or to a person taking depositions, or to auditors or arbitrators as a voucher, or in proof of facts, or as otherwise connected with the subject matter, and which, on being accepted, is marked for identification and annexed to the deposition, report, or other principal document, or otherwise made a part of the case.”3 Therefore, exhibition alone is not sufficient. Rule 14-F expressly requires that witnesses must prove the article’s “connection with the case and identity.” The operative word here is “identify.” A witness cannot meaningfully identify a sealed article without seeing or inspecting its contents. Identification entails more than a ceremonial gesture. It involves recognizing and affirming that the item shown is the same one recovered, handled, or observed in the context of the offence.

14.Rule 14-F imposes a four-step obligation: first, the article must be produced through a competent witness; second, it must be displayed in open court; third, the witness must identify it and confirm its relevance to the case; and fourth, it must be marked and admitted as an exhibit. If the article is enclosed in a sealed parcel, the court must de-seal it during the trial to enable proper identification. Anything less would reduce the witness’s testimony to a mere formality and deprive it of evidentiary value. These requirements are not technicalities; they are safeguards against substitution or tampering.

15.In Amjad Siddiqui v. The State (2016 PCr.LJ 1800), the trial court admitted the case property (narcotics) in evidence and marked it as an exhibit without de-sealing it or displaying it to the witnesses. The High Court declared this procedure illegal, holding that the failure to expose the case property in open court contravened both the statutory framework and the right to a fair trial under Article 10-A of the Constitution. The Court observed:

West’s Encyclopedia of American Law, Ed. 2 (2008).

ibid.

“Furthermore, the refusal to expose the case property in open Court is even against the mandate of Article 10-A of the Constitution of 1973, which enshrines the fair trial. The concept of fair trial has always been the golden principle of the administration of justice and after the incorporation of Article 10-A of the Constitution, it has become more important to adopt due process of law as envisaged in the Constitution of the Islamic Republic of Pakistan as well as in local laws. Even otherwise, without any lawful justification, the Court cannot decide the case only on presumptions and surmises. It is further out of sight that how it is in the knowledge of the learned Judge that property contained in the wrappers would be tampered one. It is the duty of the prosecution to produce the case property in the Court and get it exhibited. Subject to repetition it is reiterated, all the cases should be proceeded strictly in accordance with law rather than deciding the same on presumptions. Especially, no negligence in this regard can be over looked in cases entailing capital punishment.”

16.The DPG argued that, in practice, trial courts only de-seal parcels when the defence so requests. In our opinion, that practice is contrary to the letter and spirit of Rule 14-F. The court is obligated to de-seal the parcel during trial, whether or not the defence raises any objection, to enable proper identification in accordance with the law. Our holding is not limited to narcotics cases. It applies equally to all criminal proceedings where material evidence is produced in sealed form.

17.In the present case, as discussed, Tayyab Shahid/ASI (PW-3) and Ghulam Mujtaba 540/C (PW-4) testified that the recovered charas was found in a camel-coloured bag and consisted of five pieces, each weighing 1200 grams (total: 6000 grams). After drawing 60 grams from each piece for chemical analysis, 5700 grams remained, which was sealed in another parcel along with the bag. PW Tayyab Shahid produced this parcel during his testimony, and the trial court marked it as Exh. P-1. However, the parcel was not de-sealed in court, and its contents were not shown to PW Tayyab Shahid or PW Ghulam Mujtaba, the second recovery witness. The Appellant was also not confronted with it. This omission contravened Rule 14-F and rendered the witnesses’ identification of the recovered material meaningless. Each of the five pieces and the bag in which they were allegedly found ought to have been separately produced, displayed, and marked as exhibits after proper identification in open court.

18.We have also noted a material discrepancy in the testimony of the recovery witnesses regarding the shape of the recovered charas. PW Tayyab Shahid stated that all five pieces were square, while

PW Ghulam Mujtaba described them as round. This inconsistency affects the integrity of the prosecution’s version and casts doubt on the credibility of the recovery proceedings. It also highlights the importance of producing the case property in open court and allowing witnesses to inspect it. If the parcel had been de-sealed during the trial, the conflict could have been clarified or tested through proper identification and cross-examination.

19.The CNSA prescribes stringent punishments for the offences falling within its purview. It is a well-settled principle that the graver the punishment, the stricter the standard of proof. Reliance is placed on Ameer Zeb v. The State (PLD 2012 SC 380), Ahmed Ali and another v. The State (2023 SCMR 781), and Jeehand v. The State (2025 SCMR 923). In the present case, the prosecution failed to establish a continuous and secure chain of custody, did not produce the case property in accordance with the law, and offered inconsistent testimony regarding the recovered substance. These omissions raise serious doubts about the integrity of the prosecution’s case. The benefit of such doubt must go to the accused. Accordingly, Criminal Appeal No.500/2024 is allowed. The conviction and sentence awarded to the Appellant are set aside, and he is acquitted of the charge. He shall be released from custody forthwith, if not required in any other case.

(Raja Ghazanfar Ali Khan) (Tariq Saleem Sheikh) Judge Judge Naeem

Approved for reporting

(Raja Ghazanfar Ali Khan) (Tariq Saleem Sheikh) Judge Judge