Muhammad Afzaal alias Afzaali Vs The State etc

Form No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Case No. Crl. Misc. No.47324-B/2026

Muhammad Afzaal alias Afzaali Vs The State, etc.

Sr. Date of Order with signature of Judge, and that of parties No. order or counsel, where necessary.

01.10.2026 Mr. Zeeshan Abbas, Advocate for the petitioner. Mr. Haroon Rasheed, Deputy Prosecutor General for the State alongwith Shabbir, S.I. and record of the case.

Through this petition, the petitioner/accused Muhammad Afzaal alias Afzaali seeks post-arrest bail in case FIR No.1556/2026 dated 27.03.2026, registered at Police Station Chung, District Lahore, under section 9 (1)3(c) of the Control of Narcotic Substances Act, 1997, on the allegation of recovery of 1520 grams of Charas.

2.Learned counsel for the petitioner has contended that the alleged recovery, which constitutes the very foundation of the prosecution case, is attended with serious and material infirmities. It is submitted that the recovery memo, notwithstanding that it purports to have been witnessed by police officials, bears neither signatures of the alleged recovery witnesses nor of the Investigating Officer; that the investigation had, in substance, already been completed; and that the subsequent material placed on record does not satisfactorily bridge the evidentiary deficiencies attending the alleged recovery.

3.Learned Deputy Prosecutor General counsel has opposed the petition on the ground that the alleged narcotic substance was recovered from the possession of the petitioner and that the deficiencies pointed out by learned counsel are matters which may

properly be examined by the trial Court after recording of evidence.

4.We have heard the learned counsel for the parties and have carefully examined the available record, including the original recovery memo, the police record and the material concerning the alleged place of occurrence.

5.At the very outset, it may be aptly mentioned that this Court is not required to undertake a meticulous appreciation of evidence at the bail stage as would be necessary after the prosecution has produced its witnesses and they have been subjected to cross- examination. Nevertheless, where the very foundation of the prosecution case is rendered doubtful by circumstances appearing from its own record, the Court cannot shut its eyes to such circumstances merely because the allegation carries a serious penal consequence. The memo of recovery records that the police secured the alleged narcotic substance, however, further reveals a circumstance which cannot lightly be ignored as a mere technical irregularity. The recovery memo purports to have been witnessed by police officials, yet it does not bear the signatures of those persons shown therein as witnesses. The glaring omission appears on the original documents available before the Court. The prosecution has not, at this stage, furnished any satisfactory explanation for such omission. A recovery memo always assumes considerable significance being a fundamental evidence of the alleged recovery amongst a series of other independent corroborative circumstances to be established by the prosecution. In a case of this nature, the recovery memo of alleged seizure constitutes the foundation upon which the remaining prosecution structure substantially rests.

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In our view, if the recovery itself becomes doubtful, the consequential evidentiary edifice necessarily requires closer scrutiny even at the bail stage. A recovery memo is not prepared merely as an ornamental piece of police paperwork rather it is intended to contemporaneously preserve the circumstances in which the alleged seizure took place, the identity of the articles recovered, the persons present at the time of recovery and the manner in which the investigating agency came into possession of the incriminating material. Its contemporaneity and authentication are safeguards against subsequent embellishment, substitution or fabrication. In the case of Zafar Khan, 1 the Supreme Court of Pakistan observed that:

“In the cases of narcotic substances, recovery memo is a basic document, which should be prepared by the Seizing Officer, at the time of the recovered articles, containing a list thereof, in presence of two or more respectable witnesses and memo to be signed by such witnesses. The main object of preparing the recovery memo at the spot and with signatures of the witnesses is to ensure that the recovery is effected in presence of the marginal witnesses, honestly and fairly, so as to exclude the possibility of false implication and fabrication....”

Furthermore, this Court in the case “Rana SANAULLAH KHAN versus STATE and another”2 [PLJ 2020 Cr.C (Lahore) 300] has already held that preparation of seizer memo at the place of recovery is essential ingredient of the prosecution’s case in narcotics cases.

6.In addition to the above, it is necessary to distinguish between two propositions which are sometimes inadvertently conflated. The first is that the prosecution is not necessarily obliged, in every narcotics case, to produce private persons as

2022 SCMR 864

2 PLJ 2020 Cr.C (Lahore) 300

witnesses merely because a recovery has been effected. The second, entirely different proposition, is that where the prosecution itself relies upon identified persons as witnesses to a recovery and records their names as such in the recovery memo, the absence of their signatures on the very document purporting to record the recovery becomes a circumstance requiring explanation. The latter circumstance is particularly significant where the alleged recovery is the principal incriminating circumstance against the accused. The absence of signatures of recovery witnesses on the seizer memo materially affects the prosecution case even at the stage of tentative assessment and calls for further inquiry.

7.There is yet another aspect which requires consideration. The place of recovery, according to the record, was a public place. Yet there is no satisfactory indication that any genuine effort was made by the police to procure the services of an independent public witness. It is undoubtedly true that circumstances may arise in which members of the public are reluctant to associate themselves with police proceedings, or are otherwise unavailable. The Court is equally conscious that the absence of a private witness, by itself, cannot be elevated into an inflexible rule rendering every police recovery doubtful. Nonetheless, the obligation of the investigating agency to conduct itself fairly cannot be reduced to a stereotyped assertion that "no private person was available." Where the circumstances reasonably permitted association of independent persons, the record should, at the very least, disclose that a genuine attempt was made to secure their participation and, if such attempt failed, the reasons for that failure. The requirement is one of fair investigative conduct, not of mechanical compliance with a ritual formula.

8.The foregoing circumstances assume still greater significance when examined through the prism of the Qanun-e- Shahadat Order, 1984. Such document, i.e., recovery memo constitutes a material link in the evidentiary chain connecting the accused with the alleged contraband. Its preparation, authenticity, execution, identification of its purported witnesses and the circumstances in which it came into existence are consequently not matters of peripheral or merely procedural importance. These go to the very foundation upon which the prosecution seeks to construct the allegation of conscious possession and recovery. The Qanun-e-Shahadat Order, 1984, draws a fundamental distinction between a fact being relevant, a document being produced, a document being proved, and the evidentiary weight ultimately attributable to that document. Article 18 permits evidence to be given of facts in issue and of such other facts as are declared relevant by the Order; the succeeding provisions recognize the relevance of connected circumstances forming part of the same transaction or explaining the occurrence, its occasion, place and other surrounding facts. In the present case, therefore, the alleged recovery, the place and circumstances of recovery, the preparation of the recovery memo, the identity and presence of the persons shown as its witnesses, their signatures, and the subsequent handling of the recovered substance are interconnected evidentiary circumstances which must be assessed together rather than in isolation. The matter becomes particularly significant in view of Article 78 of the Qanun-e-Shahadat Order, 1984, where a document is alleged to have been signed or written by a particular person. The law requires the signature or handwriting attributed to such person to be proved. Although the Court is not, recording a final finding of fabrication or forgery. The limited question

presently before it is whether the documentary foundation of the alleged recovery is sufficiently clear and reliable to permit the Court, at the bail stage, to treat that recovery as an unimpeachable incriminating circumstance. The law recognizes primary evidence and lays down the manner in which the contents of documents are to be proved. The production of a document from a police file does not, by that circumstance alone, conclusively establish every fact which the document purports to narrate. The Courts must, therefore, remain attentive to the origin of the document, the person through whom its execution or contents are sought to be established, and the surrounding circumstances bearing upon its authenticity and reliability. Of course, the prosecution may, at trial, seek to overcome that controversy through such evidence as may lawfully be available to it. But until then, this Court cannot overlook the fact that a document relied upon as recovery memo has been materially impeached from within the prosecution evidence itself.

09.The Court is further mindful that the investigation in the present matter is not an end in itself but the mechanism through which the State gathers and preserves the material upon which a citizen may ultimately be deprived of liberty for a very substantial period. Where an offence carries penal consequences of considerable severity, the duty of the investigating agency to preserve the integrity of the evidentiary record becomes correspondingly weighty. The greater the potential deprivation of liberty, the greater the necessity for scrupulous observance of those elementary safeguards which enable a Court to distinguish a genuine recovery from a recovery subsequently attributed to an accused through an inadequately documented investigation. The

constitutional dimension of the matter cannot, therefore, be lost sight of. The criminal process must remain fair not merely at the terminal stage of trial but throughout those investigative steps upon which the prosecution case is ultimately constructed. The constitutional guarantee of fair trial and due process cannot be reduced to a formality available only after the evidentiary damage has already been done. Where the State invokes the coercive machinery of criminal law against an individual, every material circumstance bearing upon the authenticity and reliability of the evidence relied upon by the State assumes legal significance. The principle that justice must not only be done but must manifestly appear to have been done has relevance here beyond the courtroom alone. It necessarily extends, in appropriate measure, to the agencies which investigate crime, prepare recovery documents, record statements and place the resulting material before the Court. A presumption that public officials ordinarily perform their duties regularly is a working presumption of administration; it cannot become a substitute for evidence, nor can it operate as an irrebuttable shield against circumstances which themselves call the regularity of the official act into question. Where the prosecution's own material gives rise to a serious controversy regarding the execution of a foundational document, judicial scrutiny is not an intrusion into the investigative domain; it is an essential judicial function.

10.A criminal investigation is not an adversarial contest in which the Investigating Officer is permitted to select only such circumstances as support the prosecution and disregard those which may provide safeguards to the accused. The investigation must be capable of withstanding test of tentative judicial scrutiny

based on the incriminating evidence made available on police record even at the bail stage from the standpoint of transparency, impartiality and reliability. In the present case, the absence of any convincing account of an effort to associate independent witnesses assumes importance because it operates alongside, rather than in isolation from, the unsigned recovery memos. A circumstance which might perhaps be inconsequential when standing alone may acquire substantial evidentiary significance when it forms part of a cumulative pattern of investigative irregularity. The Court is, therefore, not proceeding upon the simplistic proposition that "no private witness means no recovery." Rather, the question is whether the totality of circumstances presently appearing from the prosecution record inspires sufficient confidence to justify continued incarceration at this stage, the plain answer is in negative on account of doubt given the infirmity that has arisen on account of unsigned recovery memo. At the risk of repetition, these matters are not being treated as finally established facts against the prosecution. The Court is conscious that the ultimate truthfulness of the witness, the authenticity of the disputed signatures and the circumstances in which the documents were prepared are questions for determination after evidence is recorded and tested through cross-examination. Section 497(2), Cr.P.C. provides the statutory gateway of further inquiry where, upon the material available, there are not reasonable grounds for believing that the accused has committed an offence, but sufficient grounds exist for further inquiry into his guilt.

11.Last but not least, this Court is constrained to observe that the criminal justice system functions on a delicate balance: the State must be sufficiently empowered to investigate and prosecute crime, while the individual must remain protected against arbitrary

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deprivation of liberty. Neither objective can be sacrificed to the other. The legitimacy of a conviction rests not merely upon the seriousness of the accusation but upon the fairness of the process through which guilt is established.

12.For the foregoing reasons, case of the prosecution against the petitioner at present requires further inquiry within the purview of section: 497 (2) Cr.P.C., therefore, without expressing any final opinion on the merits of the prosecution case, instant petition is allowed. The petitioner/accused Afzaal alias Afzaali is admitted to post-arrest bail in the aforesaid case subject to his furnishing bail bonds in the sum of Rs.3,00,000/- (Rupees three hundred thousand only) with two sureties each along with a P.R. bond in the like amount to the satisfaction of the trial Court.

13.Original record of the case received from the trial court shall immediately be sent back.

(Farooq Haider) (Amir Ajam Malik) Judge Judge

APPROVED FOR REPORTING

(Farooq Haider) (Amir Ajam Malik) Judge Judge

This order has been dictated, pronounced, prepared and signed on 01.10.2026.

Gulzar.