Muhammad Sabir Vs The State

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT

(JUDICIAL DEPARTMENT).

Cr.A-51-P/2025 Muhammad Sabir vs The State thr. AG KPK

Date of hearing: 23.10.2025 Date of Announcement 27.11.2025

Petitioner by: Muhammad Saeed Khan ASC.

Respondents by: Mr. Ayub Zaman AAG, M/s Robin Haider Bukhari, DG Prosecution, KPK, Mian Aziz Ahmed, Director, Javed DPP Peshawar and Dannis Murad,

APP

Assistance by: Riaz Aslam Daavi, SRO PHCP

JUDGMENT

S. M. ATTIQUE SHAH, CJ.- The appellant, Mr Muhammad Sabir, has preferred the present appeal under Section 24 of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, (“KP CNSA 2019”) read with Section 410 of the Code of Criminal Procedure, 1898, (“Cr.P.C”) assailing the judgment and order dated 13.01.2025, passed by the learned Additional Sessions Judge-XI / Judge Special Court (CNSA), Peshawar. Through the impugned judgment, the appellant was convicted under Section 9(d) of the KP CNSA, 2019, and sentenced to imprisonment for life, along with a fine of Rs.10,00,000/- (ten lac rupees only), or in default thereof, to further undergo simple imprisonment for five months. The benefit of Section 382-B of the Cr.P.C has also been extended to the appellant. Feeling aggrieved by the impugned judgment, the appellant has instituted the present criminal appeal challenging his conviction.

2.The learned counsel for the appellant contended that the prosecution has miserably failed to establish the charge against the appellant beyond reasonable doubt. It was argued that the entire case of the prosecution rests upon the alleged recovery of contraband from the vehicle; however, this recovery has not been proved in accordance with law. The two marginal witnesses of the recovery memo were not produced before the Court, which is a requirement under Articles 17 and 79 of the Qanoon-e-Shahadat Order, 1984. Consequently, an adverse inference under Article 129(g) of QSO, 1984 should be drawn against the prosecution. The defence submitted that neither the appellant was apprehended at the spot nor was any recovery effected from his possession. The learned counsel pointed out that the prosecution failed to produce the second marginal witness to the recovery memo, namely ASI Niaz Ali, which omission is fatal to the prosecution case and renders the recovery proceedings doubtful. It was further urged that the prosecution witnesses being officials of the same department are interested and interdependent, hence their uncorroborated testimony cannot be relied upon without independent support.

The learned counsel maintained that the statements of the prosecution witnesses suffer from material contradictions and inconsistencies which strike at the root of the prosecution story.

It was further argued that no extract of the daily diary was produced showing the departure of the complainant and his team from the Excise Intelligence Bureau, nor was any local police officer associated with the alleged recovery, which is a

serious procedural lapse. The appellant asserted that he was already in illegal confinement of the local police and subsequently falsely implicated in this case through a planted recovery. The learned counsel further submitted that the ownership of the vehicle in question stands in the name of another person, thereby negating the conscious possession or knowledge of the appellant regarding the contraband allegedly recovered from it.

3.It was vehemently argued before the Court that, according to the prosecution evidence, PW-02 Inspector Syed Sher Shah, the Investigating Officer of the case, stated that the samples of the contraband were sent to the Forensic Science Laboratory (FSL) by the Moharrir, Sub-Inspector Shehreyar Khan, through Constable Hidayat. Likewise, PW-03 Shehreyar Khan deposed that he had handed over sample parcels No. 1 to 40 to Constable Hidayat for onward transmission to the FSL.

These statements make it evident that the samples were allegedly taken to the FSL by Constable Hidayat. However, this material witness was not produced before the Court. Instead, one Qaiser Khan, EC, appeared as PW-06 and claimed that he had taken the samples to the FSL. Notably, the name of Qaiser Khan does not appear in the challan as a prosecution witness.

Therefore, on this sole ground, the chain of custody remains unproved, and the accused becomes entitled to acquittal.

4.Conversely, the learned Additional Advocate General, appearing on behalf of the State, controverted the submissions made by the learned counsel for the appellant and argued that

the prosecution has successfully established its case through consistent, confidence-inspiring and corroborated evidence. It was contended that the appellant was apprehended on the spot while driving the vehicle from which a huge quantity of charas weighing forty-eight kilograms was recovered. The entire proceedings, including recovery, sealing, preparation of recovery memo, transmission of samples to the Forensic Science Laboratory, and receipt of the positive FSL report, were conducted in accordance with law and duly proved through the testimony of official witnesses who withstood the test of cross- examination without any material contradiction. The learned law officer further argued that all the witnesses belong to the Excise Department, which is the seizing and investigating agency, therefore their official status alone cannot render their testimony unreliable in the absence of any evidence of animosity or mala fide against the appellant. It was submitted that the non-production of one marginal witness does not vitiate the proceedings, as the testimony of other prosecution witnesses, if found trustworthy and consistent, is sufficient to sustain a conviction. It is the quality of the evidence that matters, not the quantity of witnesses produced. He also argued that recovery memo is an investigative document which records the factual circumstances of seizure of property. It neither creates civil rights nor imposes financial or contractual obligations so as to attract the mandatory attestation requirements contemplated under Article 79. The purpose of obtaining signatures of two witnesses on the recovery memo is

administrative and procedural, meant to ensure transparency in investigation. The requirement is not evidentiary in the strict sense that both witnesses must invariably be produced at trial.

Where the recovery is proved through the testimony of the seizing officer, corroborated by one marginal witness, and the case property is produced before the Court, the essential elements of proof stand satisfied. The learned AAG added that the recovery of narcotics was effected in broad daylight, the entire process was videographed, and the chain of safe custody from seizure till analysis remained unbroken. The FSL report has fully corroborated the ocular account of the prosecution witnesses. It was further maintained that the appellant, in his statement under Section 342 of the Cr.P.C failed to furnish any plausible explanation regarding his presence at the spot or the recovery of contraband from the vehicle he was driving. His mere denial and plea of false implication, without any supporting evidence, do not inspire confidence. As far as the claim of the appellant in his statement recorded under Section 342 of the Cr.P.C that he was in illegal confinement of Police Station Shah Pur is concerned, it was argued that he did not produce any defence evidence in support of this assertion. He further contended that the samples were sent to the FSL by the Constable Hidayat, as is evident from the record and the statements of PW-02 and PW-03. He argued that the statement recorded as PW-06 actually pertains to Constable Hidayat, and that the mention of the name Qaiser Khan in place of Hidayat is merely a clerical error. According to the learned AAG, this

minor clerical mistake does not create any reasonable doubt in favour of the appellant.

5.Arguments heard and record perused.

6.It is an undeniable fact that the use of narcotic substances is not only increasing but also giving rise to various social evils.

It is a fundamental right of the citizens of Pakistan to live in a drug-free environment, and the State is under a constitutional obligation to safeguard the health and well-being of its people.

Under Article 9A of the Constitution of the Islamic Republic of Pakistan, every person is entitled to a clean, healthy and sustainable environment. The guarantee of such an environment necessarily includes protection from the menace of narcotic substances, which endangers not only individual health but also public order and societal welfare. Besides its constitutional obligation, Pakistan is a signatory to various international conventions and declarations1 formulated to combat the menace of narcotic drugs and psychotropic substances. These include the Single Convention on Narcotic Drugs, 19612, as amended by the 1972 Protocol amending the Single Convention on Narcotic Drugs, 1961; the Convention on Psychotropic Substances, 19713; and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 19884. The provisions of Article 12 of the 1988 Convention have been incorporated into Section 7 of the Control of https://anf.gov.pk/international-cooperation.php https://www.unodc.org/pdf/convention_1961_en.pdf https://www.unodc.org/pdf/convention_1971_en.pdf https://www.unodc.org/pdf/convention_1988_en.pdf

Narcotic Substances Act, 1997. Pakistan has also endorsed the Political Declaration and Plan of Action on International Cooperation towards an Integrated and Balanced Strategy to Counter the World Drug Problem, 20095. In the regional context, Pakistan is a party to the SAARC Convention on Narcotic Drugs and Psychotropic Substances, 19906, and has further entered into the Protocol on Drug Matters with member countries of the Economic Cooperation Organization (ECO)7.

These international commitments manifest the resolve of the State of Pakistan to harmonize its domestic legal and enforcement frameworks with global efforts to eradicate drug trafficking and abuse, thereby safeguarding public health and ensuring the maintenance of social order. The seriousness of this menace calls for a decisive and comprehensive response through prevention, deterrence, and punishment, so as to ensure the effective elimination of the scourge of narcotic drugs from society.

7.However, despite frequent arrests and the recovery of large quantities of narcotics, convictions in such cases remain extremely rare. One of the major reasons for this state of affairs is defective investigation and the consistent disregard of the principles laid down by the superior courts. In cases pertaining to narcotics, three fundamental elements must be conclusively established before the Court. First, the recovery of the narcotic https://www.unodc.org/documents/ungass2016/V0984963-English.pdf https://www.saarc-sec.org/index.php/resources/agreements-conventions/49-saarc- convention-on-narcotic-rugs-and-psychotropic-substances/file https://eco.int/wp-content/uploads/2023/06/ECO-Plan-of-Action-on-Drug-Control.pdf

substance must be proved. Second, it must be demonstrated that the recovered material is indeed a prohibited substance within the meaning of the law. Third, it must be shown that the substance was in the conscious knowledge and possession of the accused from whom it was recovered, as there remains the possibility of a planted recovery motivated by revenge, malice, or any other ulterior purpose. The superior courts, in numerous judgments8, have held that in order to prove these essential facts, it is necessary that every significant procedural step be undertaken strictly in accordance with the principles laid down by law and expounded by the superior judiciary. For instance, the narcotics must be weighed and sealed at the place of recovery. If the narcotics are in the form of packets or pieces, a separate representative sample must be drawn and sealed from each packet or piece. Thereafter, it must be satisfactorily proved that from the place of recovery to the Malkhana of police station, and from the Malkhana to the forensic Science laboratory, the case property remained in safe custody and was transmitted securely. In other words, from the point of recovery to the narcotics testing laboratory, the safe custody and safe transmission of the recovered substance must be established beyond any reasonable doubt. This unbroken and verifiable chain of custody is of fundamental importance, as the report of the Government Analyst constitutes material evidence for the 2024 SCMR 1408, 2024 SCMR 1571, 2023 SCMR 1144, 2023 SCMR 986, 2022 SCMR 1006, 2022 SCMR 1422, 2021 SCMR 451, PLD 2020 SC 57, 2019 SCMR 930, 2019 SCMR 2004, 2019 SCMR 608, PLD 2019 SC 669, 2019 SCMR 1300, 2018

SCMR 2039, 2015 SCMR 1002, 2012 SCMR 577.

purpose of conviction. The prosecution must therefore prove that the chain of custody was continuous, unimpaired, and secure. Any break, defect, or doubt in this chain of safe custody or transmission undermines and nullifies the conclusiveness and credibility of the FSL report. Recently, the superior courts, in the cases of Zahid Sarfaraz Gill9 and Imdad Ullah10, have further directed that the entire process of recovery of narcotics should be recorded on video. This measure is intended to prevent the false implication of innocent persons and to ensure the conviction of the actual offenders.

8.Therefore, it is imperative that the case property be duly sealed at the place of recovery, that representative samples be carefully separated, prepared, and sealed, and that the remaining case property be sealed separately. Thereafter, the entire recovered material must be brought to the police station, entered in Register No. 19, and the sealed samples promptly forwarded to the Forensic Science Laboratory (FSL) for chemical examination, while the remaining sealed property is deposited in the Malkhana for safe custody. Throughout these stages, the case property, particularly the sealed samples, must remain protected and free from any possibility of tampering until their receipt by the FSL. The remaining property, retained in the Malkhana, must also be preserved in the same sealed condition until produced before the Court, either at the time of the accused’s custody or during trial for its exhibition. It must Zahid Sarafarz Gill Vs The State (2024 SCMR 934) Imdad Ullah Vs The State (2024 Pcr. LJ 652 Pesh)

be clearly demonstrated who recovered the case property, who weighed and examined it, who separated and sealed the representative samples and the remaining property, who transported it from the place of recovery to the police station, who dispatched the samples from the Malkhana to the FSL, and who produced the remaining property before the Court. In essence, maintaining and proving an unbroken chain of custody is indispensable to ensure the sanctity, integrity, and evidentiary value of the case property before the Court. Therefore, the Moharrir of the police station, who receives the representative samples and the remaining case property, who entrusts the representative samples to another police officer for dispatch to the Forensic Science Laboratory for chemical examination, and in whose custody the remaining case property is deposited in the Malkhana, is a material witness. Likewise, the police officer who takes the representative samples from the Malkhana through the Moharrir to the Forensic Science Laboratory for examination is also a material and necessary witness. The Honorable Apex Court has emphasized this requirement in the cases of Abdul Ghani11 and Zafar Khan12, underscoring the necessity of establishing the safe custody and safe transmission of the recovered narcotic substance through credible and reliable evidence. The relevant excerpts from these judgments are reproduced below for ready reference:

“2. There is hardly any occasion for discussing the merits of the case against the appellants because the record of the case Abdul Ghani Vs The State (2019 S C M R 608)

Zafar Khan Vs The State (2022 SCMR 864)

shows that safe custody of the recovered substance as well as safe transmission of samples of the recovered substance to the office of the Chemical Examiner had not been established by the prosecution in this case. Nisar Ahmed, S.I./SHO complainant (PW1) had stated before the trial court that he had deposited the recovered substance at the Malkhana of the local Police Station but admittedly the Moharrir of the said Police Station had not been produced before the trial court to depose about safe custody of the recovered substance. It is also not denied that Ali Sher, H.C. who had delivered the samples of the recovered substance at the office of the Chemical Examiner had also not been produced during the trial so as to confirm safe transmission of the samples of the recovered substance. It has already been clarified by this Court in the cases of 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) that in a case where safe custody of the recovered substance or safe transmission of samples of the recovered substance is not proved by the prosecution through independent evidence there it cannot be concluded that the prosecution had succeeded in establishing its case against the appellants beyond reasonable doubt.”(2019 SCMR 608) “Admittedly, the prosecution did not produce the Moharrar to whom the contraband was allegedly handed over, nor has it come on the record as to whether the same was deposited in the Malkhana. The witness did not explain as to where the contraband material and the samples separated for chemical analysis were lying before sending the same to the office of the FSL. According to the complainant, he sent the, sample of the contraband material for chemical analysis through an application (Ex.PA/1) but did not explain as to when he sent the same. Perusal of the application (Ex.PA/1) would reveal that it was written on 6th of March, 2014, but the report of the chemical expert reveals that the contraband material was received on 10th of March, 2014. Even the person who delivered the sample to the office of Chemical Examiner, has not been produced to prove the contention of the complainant with regard to sending of the samples.”(2022 SCMR 864)

9.In the present case, as per the record, Constable Hidayat was the person who took the samples to the Forensic Science Laboratory, as reflected in the statements of PW-02 and PW- 03, and supported by documents Ex-PW-01/1, Ex-PW-02/4, Ex-PW-04/3, Ex-PZ, and the summons available in the original file of the trial court at pages 72 to 76. However, instead of him, one Qaiser Khan, Excise Constable, has been produced before

the Court as PW-06. In the present scenario, without touching upon the other aspects or merits of the case at this stage, it becomes necessary to first examine whether this single aspect constitutes a sufficient ground for acquittal and whether it can be termed as a “reasonable doubt.” The learned AAG contended that it was merely a clerical error that the name of Constable Hidayat was recorded as Qaiser Khan in the statement recorded before the Court. However, such an assumption cannot be readily accepted, as neither the CNIC nor the service card of PW-06 was exhibited during his examination. It may be presumed that the discrepancy was a clerical mistake; however, it may also be inferred that it was a deliberate act on the part of the public prosecutor who, while appearing with PW-06, dictated an incorrect name with the intention of creating doubt in the prosecution case and thereby providing an advantage to the accused, being aware of the importance of this witness in establishing the chain of custody. It may further be possible that the stenographer recording the statement intentionally mentioned the wrong name to favour the accused, or that the Court inadvertently or otherwise failed to ascertain the true identity of the witness before his examination. It may also be that the witness himself disclosed a wrong name to the stenographer for the purpose of favouring appellant. All these are presumptive theories without any positive evidence in their support in the available record. In such circumstances, although the prosecution did produce a witness who allegedly took the samples to the Forensic Science Laboratory to establish

the chain of custody, the alteration or discrepancy in the name has created an irregularity. In our view, and keeping in perspective the above presumptive possibilities, this irregularity warrants further scrutiny. Simply extending the benefit of doubt to the accused on this basis alone would not be just or equitable, particularly in view of the huge quantity of narcotic substance involved in the case. Therefore, in such a situation, when the Court is not inclined to treat this irregularity as a benefit of doubt, it becomes imperative to consider what further course of action the Court should adopt to ensure justice and fairness in the matter.

10.In the present case, as already observed in paragraph No.

9, the irregularity concerning PW-06 warrants further scrutiny.

Although no objection was raised by the defence at the time of recording the statement of PW-06, and the Public Prosecutor present also failed to discharge his duty, the absence of objection by the defence, which appears to be in their favour, cannot be overlooked. It may be presumed that even if the defence was aware that Qaiser Khan was not the relevant witness who allegedly took the samples to the Forensic Science Laboratory, they may have chosen to remain silent, considering that such a discrepancy could ultimately operate to their advantage. However, the role of an advocate is to assist the court in the administration of justice. Under Rule 163 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976, the primary duty of an advocate engaged in public prosecution is not to convict, but to see that justice is done. The suppression

of facts or the concealing of witnesses capable of establishing the innocence of the accused is highly reprehensible. Failure to observe this rule constitutes misconduct under Rule 175A of the said Rules. It is, however, uncertain whether this aspect was within the knowledge of the defence counsel at the time of recording the statement of PW-06, that is, whether the name of the witness was erroneously recorded as Qaiser Khan instead of Hidayat, or whether another person named Qaiser Khan was produced in place of Hidayat. Thus, it becomes mandatory that the concerned witness, whether Qaiser Khan or Hidayat, who may be the same individual or two different persons, be re- examined to resolve the ambiguity. Nevertheless, this gives rise to the question of whether the re-examination of the said disputed witness would constitute a departure from the principles of the adversarial system of criminal justice. The answer to this question can be ascertained from the case of Ch.

Muhammad Anwar13, wherein the Lahore High Court held that:

“5. It is well settled principle of law that criminal justice system is not adversarial rather inquisitorial and Court has to reach at just decision of the case; any piece of evidence which is essential for just decision of the case, has to be brought on record irrespective of the fact that either it favours one party or goes against other; any delay for filing any application for calling/recalling of witnesses or bringing any piece of evidence on record, is immaterial; similarly, filling lacuna in the case is also immaterial if said piece of evidence is otherwise necessary for securing ends of justice i.e. essential for just decision of the case.”

Similarly, in the case of Abdul Latif Lassi14, the Lahore High Court reaffirmed that:

Ch. Muhammad Anawar Vs Judge Accountability Court (2021 MLD 648) Abdul Latif Lassi BVs The State (1999 MLD 1069)

7.The main plank of the petitioner's arguments before me has been that in our adversarial system of justice there was not scope for an inquisitorial approach adopted by the learned trial Court through the impugned order passed by it. However, the learned counsel for the petitioner have failed to point out any statutory sanction for observing that our system of justice is adversrial and not inquisitorial. If one looks at the history of our judicial system one may notice that this concept has gradually developed therein as a rule of prudence and practice mainly as regards civil litigation wherein the parties to a lis are required to lay their respective claims before the trial Court and then substantiate the same through evidence to be led by them. There are indications available in the Code of Civil Procedure which support the perception that civil litigation in our system is, by and large, adversarial in nature. But even there the inherent and general powers of the Court, and even some specific powers, sometimes cut across that concept. A general acceptance of that concept in the civil litigation is, even otherwise, understandable. In a civil lis more often than not, it is the parties to the lis alone who are interested in its outcome and effect. This cannot be said to be true for a criminal case wherein an offence committed by an individual is considered to be an offence not only against his victim but also against the whole society and the State. Thus, in a criminal case an intentional or an unintentional lapse on the part of the complainant, the Investigating Officer or the prosecuting counsel is not to be allowed to stand in the way of a trial Court to rectify that lapse by calling in evidence on its own if such evidence can have bearing on the determination of guilt or innocence of the accused person. Such a power has to be conceded to a criminal Court in the larger interest of the community at large. Looked at in this context the stage of a trial appears to be irrelevant to the exercise of such a power of the Court and the only factor relevant to the exercise of such a power cannot be other than the relevance of the evidence called.

In another landmark judgment, the Lahore High Court in the case of Waqas alias Kashi15 elaborated that:

4.In a journey to prosecute an offender, process experiences shortcomings in the system due to many reasons including incompetence, different ideologies and silo mentalities. Looking to each other, a Ping-Pong exercise between the stake holders will not help to improve the system, blame game is not the solution; everybody has to put his due to develop a Modus Vivendi to give a push or big bang to set the system on track. Court should not look up and down or askance, it has to be done by us, the people of Pakistan. Presently what the paradoxical moaning the criminal justice system has faced during a trial is calculated through excuses often made;

Waqas Alias Kashi Vs The State (PLD 2022 Lahore 319)

"Sufficient evidence has not been made available; police have not collected the relevant material; prosecution has withheld the material witnesses; complainant is prosecuting wishy subjects; official and bureaucratic discourse, an obstacle to get the relevant material; experts have least concern to express opinion; deprived protection, a truthful witness was available; social media dropped a hint but lead was missed; modern devices can help procured the evidence through Skype, live link or other modes, prosecution is not interested; witness has died yet evidence is not being procured in the form of Shahada ala al-shahada; some of the witnesses were intentionally skipped in the challan; witness already recorded has given a fishy statement; person present in the court though knew the material facts yet was refused opportunity; summoning of Radiologist, forensic experts, specialists, interpreter was inevitable; child witness was required to be summoned though grown up now; new fact was born out during the evidence which has lost sight of; evidence later discovered did not find space during the trial".

For all above situations and others, the panacea, legislature has introduced is the form of powers under section 540 of Cr.P.C. This section among some others is an exception to adversarial system and an attempt to make inroads through an inquisitorial say amidst such system. The object and purpose of this section is very clear, it gets a status of overarching component of criminal justice system being a brainchild of inherent right of fair trial and due process, which now is part of constitutional regime for fundamental rights. This section as couched and in the womb of constitutional framework would be regarded as supreme law with limitations imbedded therein and the judicial restraint interpreted through legal precedents of Superior Courts on the subject section. This is the only section which is so responsive to all lame excuses in the system for non- collection of evidence and missed prosecution of the offenders. Apart from this, some more sections of law also carry an inquisitorial say which includes sections 94, 337/338 and 539B of Cr.P.C. and Articles 158 and 161 of Qanun-e-Shahadat Order, 1984. Some special provisions of Punjab Forensic Science Agency Act, 2007.”

The Sindh High Court, in the case of Khuda Bux16, further explained the inquisitorial aspect of the criminal justice system in the following words:

11.A salutary principle of criminal judicial proceedings is to uncover the truth and reach a just conclusion, ensuring that an innocent individual is not punished due to technicalities, whether on his part or on the part of the court. Further, the criminal justice system is inquisitorial rather than adversarial. Therefore, it falls upon the court to arrive at a just decision in Khuda Bux Vs The State (2024 Pcr.LJ 2014)

the case. Any evidence deemed essential for this purpose must be presented, though it remains open to challenge regarding its truthfulness through cross-examination.

12.The body of developed legal doctrine surrounding section 540, Cr.P.C has established the following core tenets:

(i)The purpose of section 540, Cr.P.C is to empower and enable the court to ascertain the truth of the matter in order to arrive at a just and proper conclusion.

(ii)This section comprises two components one conferring discretionary authority upon the court, and the other imposing a duty upon it. Yet, in exercising discretion, the court must be vigilant against any attempt by litigants to misuse this authority, and should adhere to the guiding principle of serving the interests of justice.

(iii)So also, this discretion must be wielded judiciously since with great power comes a greater need for careful judicial reasoning.

(iv)For purpose of conducting proceedings under this section (whether the first or second part), it is allowable to consider material that has not been formally admitted as evidence, whether it is found in the judicial file, police file or elsewhere.

(v)In order to serve the overarching goal of justice, this section confers wide powers to the court to summon and examine any person as a court witness at any stage of the case and in certain cases imposes a duty on it to summon witnesses who cannot otherwise be brought before the court, when their evidence is considered as crucial by the court for the just resolution of the case.

(vi)The court also possess the authority to examine any individual present, even if he has not been formally summoned as a witness. The ultimate objective is always to uncover the truth.

(vii)Where the evidence is essential for just decision of the case, it is incumbent upon the Court to allow its production and examination.

(viii)The calling of additional evidence is not always conditioned on the defence or prosecution initiating this request through an application but rather it is the duty of the court to ensure complete justice between the parties. Neither the negligence nor the lack of awareness from either side, nor any resulting delays in concluding the case, should impede the pursuit of this objective.

The Balochistan High Court has also emphasized the necessity of invoking Section 540, Cr.P.C., wherever required, in the case of Abdul Bari17, in the following words:-

The provisions of section 540, Cr.P.C. cast a legal duty upon the Court/Judge to see that the witnesses, who have been cited by the prosecution, are produced by it or, if summons are The State thr. Public Prosecutor Vs Abdul Bari (2016 P Cr. L J 522)

issued, they are actually served on the witnesses, if the trial Court is of the opinion that the material witnesses have not been examined. It should not allow the prosecution to close the evidence. There can be no doubt that the prosecution may not examine all its witnesses, but that does not necessarily mean that the prosecution can choose not to examine any witness. The public or Special Prosecutor, who conducts the trial, has a statutory duty to perform. He is not supposed to be negligent or take thing in a light manner. The Court also is not expected to accept the version of the prosecution as if it is sacred. It has to apply its mind on every occasion. Non-application of mind by the trial Court has the potentiality to lead to the paralysis of the conception of fair trial. The trial Court cannot be a silent spectator or a mute observer. If evidence of any witness appears to the Court to be essential to just decision of the case it is the power of the Court to summon and examine or recall and reexamine any such person.

Section 540, Cr.P.C. should be resorted to only with the object of finding out truth or obtaining proper proof from such facts which will lead to a just and correct decision of the case. The object of aforesaid provision simultaneously imposes a duty on the Court to determine the truth and to render a just decision. Section 540, Cr.P.C. has two parts; in the first one the discretion lies with the Court to examine or not to examine any person as a witness, but according to second part of the section, the Court is bound to examine any person as a witness, if his evidence appears to be essential for just decision of the case irrespective of the fact that any party had requested for it or not.

The authoritative judgments referred to above make it clear that the criminal justice system in Pakistan is inquisitorial in nature, with explicit provisions to that effect which have been erroneously disregarded. They further affirm that the trial court is empowered under Section 54018 of the Cr.P.C to summon any witness at any stage of the proceedings, if such examination is deemed essential for the just decision of the case.

11.It is a well-settled principle that the right of appeal exists only when it is expressly provided by law, as stated in Section

540.Power to summon material witness or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.

40419 of the Cr.P.C. Admittedly, under Section 26(1)20 of the KP CNSA, 2019, the legal procedures prescribed in the Cr.P.C shall be followed, subject to such modifications as may be

necessary to suit the circumstances of this special law. In the present case, the right of appeal is provided under Section 2421 of the KP CNSA, 2019, read with Section 41022 of the Cr.P.C.

However, the KP CNSA, 2019, is silent regarding the

procedural aspects that render an appeal admissible and does not define the powers of the appellate forum. Since Section 24 of the Act merely confers the right of appeal without elaborating on its procedure or scope, guidance shall therefore be drawn from the provisions of the Cr.P.C by virtue of Section 26(1) of the KP CNSA, 201923. In this respect, the relevant sections of the Cr.P.C are hereby reproduced for guidance.

Section 418. Appeal on what matters admissible.(1) An appeal may lie on a matter of fact as well as a matter of law.

Explanation. The alleged severity of a sentence shall, for the purposes of this section, be deemed to be a matter of law.

423.Powers of Appellate Court in disposing of appeal.(1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under section 411A, subsection (2) or section 417, the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be

404.Unless otherwise provided, no appeal to lie. No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force.

26.Application of the Code.---(1) Except as otherwise provided in this Act, the provisions of the Code shall mutatis mutandis apply to all proceedings under this Act.

24.Appeal.---An appeal, under this Act, shall be made against the decision of the Special Courts in the following manner: (a) against the decision of the Special Court, as specified in clause (a) of subsection (2) of section 22, to the Peshawar High Court; and (b) against the decision of the Special Court, as specified in clause (b) of subsection (2) of section 22, to the Court of the District and Sessions Judge or Additional District and Sessions Judge of the district concerned.

410.Appeal from sentence of Court of Session. Any person convicted on a trial held by a Sessions Judge, or an Additional Sessions Judge, may appeal to the High Court.

2022 SCMR 1950

retried or sent for trial to the Court of Session or the High Court as the case may be, or find him guilty and pass sentence on him according to law ; (b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or sent for trial, or (2) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but, subject to the provisions of section 106, subsection (3), not so as to enhance the same ; (c) in an appeal from any other order, alter or reverse such order ; (d) make any amendment or any consequential or incidental order that may be just or proper.

Under Section 418 of the Cr.P.C, an appeal lies on both factual and legal grounds, including the alleged severity of sentence, which is deemed a matter of law. Section 423 further empowers the appellate court, after examining the record and hearing the parties, to interfere where necessary. In doing so, the appellate court may reverse an acquittal or conviction, and where the ends of justice so require, it may order a retrial or remand the case to the trial court or any other competent court for reconsideration and proper adjudication in accordance with law. Nevertheless, certain restrictions and conditions are prescribed under Section 53724 of the Cr.P.C regarding the alteration, reversal, or

modification of a finding or sentence. The said provision lays down that no finding, sentence, or order passed by a court of competent jurisdiction shall be reversed or altered merely on

537.Finding or sentence when reversible by reason of error or omission in charge or other proceedings. Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account (a) of any error, omission or irregularity in the complaint report by police officer under Section 173, summon, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or (b) of any error, omission or irregularity in the mode of trial, including any misjoinder of charges, unless such error, omission or irregularity has in fact occasioned a failure of justice. Explanation. In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.

account of any error, omission, or irregularity in the proceedings, including the complaint, charge, warrant, or mode of trial, unless such defect has in fact resulted in a failure of justice. In the present case, it would be just and proper that the controversy regarding PW-06 be resolved by the trial court after ascertaining the identity of Hidayat EC or Qaiser Khan EC and re-examining the concerned witness so that the omission, error or irregularity may be ascertained for the larger interest of justice.

12.As discussed above in paragraph 7, the superior courts, in the cases of Zahid Sarfaraz Gill25 and Imdad Ullah26, have issued directions mandating that recovery proceedings be recorded through videography. When law enforcement agencies are required to record the proceedings of recovery, it naturally follows that trial Courts must also record their trial proceedings. This brings forth the question as to what is the mode of taking and recording evidence under the Cr.P.C.

Chapter XXV provides a complete method for taking and recording evidence during inquiries and trials. Section 35327 lays down the basic rule that all evidence under Chapters XX, XXI, XXII and XXIIA must be taken in the presence of the accused, or if his attendance is excused, in the presence of his

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2024 PCr.LJ 652 Pesh

353.Evidence to be taken in presence of accused. Except as otherwise expressly provided, all evidence taken under Chapters XX, XXI, XXII and XXIIA shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader.

pleader. Section 35428 then states that in all inquiries and trials, except summary trials, the evidence of witnesses must be

recorded in the manner that follows in this chapter. Section

35529 provides that in trials before Magistrates of the first and second class under Chapters XX and XXII and in proceedings

under section 514, the Magistrate shall write a memorandum of the substance of each witness statement as the witness speaks, and this memorandum must be written and signed by the

Magistrate with his own hand. If he cannot do this, he must

record the reason and have the memorandum written from his

dictation in open Court and sign it. Section 35630 deals with all other trials before Courts of Session and inquiries under

Chapter XII. In these matters the evidence of each witness must

354.Manner of recording evidence. In inquiries and trials (other than summary trials) under this Code by or before a Magistrate or Sessions Judge, the evidence of the witnesses shall be recorded in the following manner.

355.Record in trials of certain cases by first and Second class Magistrates.__(1) in cases tried under Chapter XX or Chapter XXII by a Magistrate of the first or second class and in all proceedings under section 514 (if not in the course of a trial), the Magistrate shall make a memorandum of the substance of the evidence of each witness as the examination of the witness proceeds. (2) Such memorandum shall be written and signed by the Magistrate with his own hand, and shall form part of the record. (3) If the Magistrate is prevented from making a memorandum as above required, he shall record the reason of his inability to do so, and shall cause such memorandum to be made in writing from his dictation in open Court, and shall sign the same, and such memorandum shall form part of the record.

356.Record in other cases.__ (1) In trials before Courts of Session and in inquiries under Chapter XII, the evidence of each witness shall be taken down in writing in the language of the Court by the Magistrate or Sessions Judge, or in his presence and hearing and under his personal direction and superintendence and shall be signed by the Magistrate or Sessions Judge. (2) Evidence given in English. When the evidence of such witness is given in English, the Magistrate or Sessions Judge may take it down in that language with his own hand, and, unless the accused is familiar with English, or the language of the Court is English, an authenticated translation of such evidence in the language of the Court shall form part of the record.(2A) When the evidence of such witness is given in any other language, not being English, than the language of the Court, the Magistrate or Sessions Judge may take it down in that language with his own hand, or cause it to be taken down in that language in his presence and hearing and under his personal direction and superintendence, and an authenticated translation of such evidence in the language of the Court or in English shall form part of the record. (3) Memorandum when evidence not taken down by the Magistrate or Judge himself. In cases in which the evidence is not taken down in writing by the Magistrate or Sessions Judge, he shall, as the examination of each witness proceeds, make a memorandum of the substance of what such witness deposes; and such memorandum shall be written and signed by the Magistrate or Sessions Judge with his own hand, and shall form part of the record. (4) If the Magistrate or Sessions Judge is prevented from making a memorandum as above required, he shall record the reason of his inability to make it.

be written in the language of the Court by the Judge or

Magistrate himself or written in his presence and hearing under his personal direction and superintendence, and he must sign it.

Where evidence is given in English or in any other language,

subsections 2 and 2A require that it be written in that language and that an authenticated translation into the language of the Court or into English be made part of the record when needed.

Subsection 3 requires the Judge or Magistrate to write with his own hand a memorandum of the substance of the evidence if he

has not written the evidence himself, and subsection 4 requires him to record the reason if he is unable to do so. Section 35731 empowers the Provincial Government to direct that in cases

covered by section 356 the evidence be written by the Judge or Magistrate in his mother tongue, and if he is prevented by

sufficient reason he must record the reason and have the

evidence written from his dictation in open Court. Section 35832 gives a Magistrate who is dealing with a case under section 355 the choice to follow the method of section 356 or, where an

order under section 357 exists, to follow that method. Section

357.Language of record of evidence.__ (1) The Provincial Government may direct that in any district or part of a district, or in proceedings before any Court of Session, or before any Magistrate or class of Magistrates the evidence of each witness shall, in the cases referred to in section 356, be taken down by the Sessions Judge or Magistrate with his own hand and in his mother-tongue, unless he is prevented by any sufficient reason from taking down the evidence of any witness, in which case he shall record the reason of his inability to do so and shall cause the evidence to be taken down in writing from his dictation in open Court. (2) The evidence so taken down shall be signed by the Sessions Judge or Magistrate, and shall form part of the record: Provided that the Provincial Government may direct the Session Judge or Magistrate to take down the evidence in the English language or in the language of the Court, although such language is not his mother-tongue.

358.Option to Magistrate in cases under section 355. In cases of the kind mentioned in Section 355, the Magistrate may, if he thinks fit, take down the evidence of any witness in the manner provided in section 356, or, if within the local limits of the jurisdiction of such Magistrate the Provincial Government has made the order referred to in section 357, in the manner provided in the same section.

35933 states that evidence under section 356 or section 357 must normally be written as a narrative and not as questions and

answers, although particular questions and answers may be

written down if the Judge or Magistrate thinks fit. Section 36034 provides that when the evidence of each witness is completed,

it must be read over to the witness in the presence of the accused or his pleader and corrected if necessary, and any objection by the witness may be recorded. It also requires interpretation

when the witness does not understand the language in which the

evidence is written. Section 36135 further requires that the

evidence be interpreted to the accused or his pleader if they do not understand the language used. Section 36336 allows the

Judge or Magistrate to record remarks about the behaviour of

the witness. Section 36537 states that the High Court must make rules for the recording of evidence in cases before it and that

359.Mode of recording evidence under section 356 or section 357.__ (1) Evidence taken under section 356 or section 357 shall not ordinarily be taken down in the form of question and answer, but in the form of a narrative. (2) The Magistrate or Sessions Judge may, in his discretion, take down, or cause to be taken down, any particular question and answer.

360.Procedure in regard to such evidence when completed.__ (1) As the evidence of each witness taken under section 356 or section 357 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected.(2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or Sessions Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness, and shall add such remarks as he thinks necessary.

(3)If the evidence is taken down in a language different from that in which it has been given and the witness does not understand the language in which it is taken down, the evidence so taken down shall be interpreted to him in the language in which it was given, or in a language which he understands.

361.Interpretation of evidence to accused or his pleader.__ (1) Whenever any evidence is given in a language not understood by the accused, and he is present in person, it shall be interpreted to him in open Court in a language understood by him. (2) If he appears by pleader and the evidence is given in a language other than the language of the Court, and not understood by the pleader, it shall be interpreted to such pleader in that language.

(3)When documents are put in for the purpose of formal proof, it shall be in the discretion of the Court to interpret as much thereof as appears necessary.

363.Remarks respecting demeanour of witness. When a Sessions Judge or Magistrate has recorded the evidence of a witness, he shall also record such remarks (if any) as he thinks material respecting the demeanour of such witness whilst under examination.

365.Record of evidence in High Court. Every High Court shall from time to time, by general rule prescribe the manner in which evidence shall be taken down in cases coming before the Court, and the evidence shall be taken down in accordance with such rule.

evidence must be recorded in accordance with those rules. Read together, these sections form a clear and complete system that ensures evidence is recorded in the presence of the accused or his pleader, in a proper language or with proper translation, under the supervision of the Court, with written memoranda where required, and with interpretation and certification whenever needed, so that the record of evidence remains accurate and trustworthy in every inquiry and trial.

13.In Hazrat Jamal case38, the Supreme Court examined the objection that the trial Judge had recorded evidence in contravention of section 356 CrPC. The record showed that the Judge had dictated the evidence in his own words to a stenographer in open Court and had not prepared a handwritten memorandum. The Supreme Court held that the North West Frontier Province Notification No 3174 L D dated 26 January 1937, issued under section 357, displaced the normal operation of section 356 and permitted the Judge to record evidence in English or from his dictation in open Court. The Court further held that when the evidence is dictated by the presiding officer, the need for a separate memorandum under section 356 subsection 3 no longer arises, as the dictated record itself is the faithful and accurate account of what each witness states. This view was followed in P L D 1960 W P Lahore 520 and later in 2007 SCMR 540. In the present era, when audio visual recording is technologically feasible, the need for accuracy, P L D 1958 Supreme Court (Pak) 383

preservation of demeanour, and avoidance of mistranslation further strengthens the case for recording witness statements through audio visual means, duly supported by certified transcription and translation39, as permissible under Article 164 of the Qanun-e-Shahadat Order 1984. It is now high time that this facility is fully utilised in our judicial processes, including trials. The colonial and outdated method of recording witness statements in Court is accompanied by many inherent weaknesses. In the Trial Court, whether civil or criminal, a witness is seldom proficient in English or the Court language, and his testimony is therefore translated by the Judge or more often by the Counsel or the prosecutor and then dictated to the steno typist. Naturally this leaves very limited scope for preserving demeanour related details. It cannot be asserted with certainty that the translated version is the accurate reflection of the witness. Serious and contentious disputes frequently arise regarding the correctness of the recorded narration. The significance is clear, for the fate of an accused charged with murder may turn on the facts narrated by the witnesses. It is therefore directed that Courts adopt the practice of audio visual recording of the testimony of witnesses during trial and at pretrial stages. The required tools in the shape of webcams, required gadgets and a repository for saving the recordings at all levels must be provided. There should be certified transcript Transcription means converting spoken words into written text exactly as they are spoken. It is a written copy of the oral statement in the same language in which the witness speaks. Translation means converting the written or spoken words from one language into another language. It changes the language but keeps the meaning. In short, transcription writes the speech as it is, and translation renders that speech into another language.

recorders responsible for the transcription and translation of the recordings, and the Office of the Registrar shall devise Standard Operating Procedures regulating their duties. Preferably these should be persons with legal knowledge, and as an interim measure, existing staff may be trained for this purpose.

Ultimately, however, the responsibility remains with the Trial Judge, who alone is tasked with recording testimony in the manner prescribed. The certification of read out and admitted as correct under sections 360 and 361 of the CrPC makes it mandatory for the Trial Judge to ensure the completeness and accuracy of the testimony recorded.

14.Taking opportunity from the scenario that has emerged before the Court, and in order to prevent and avoid such discrepancies in future, the following guidelines are hereby formulated for guidance and compliance:

1.Henceforth, trial proceedings, and in particular the recording of statements, shall be conducted through the audio video facility available in the courtroom. Until transcript recorders are appointed or otherwise made available, statements shall continue to be recorded through the existing method in addition to the audio video recording. All such recordings shall be duly preserved for future use. Where the required audio video facility is not available, the concerned Worthy District and Sessions Judge shall arrange for its installation in consultation with the worthy Registrar of this Court.

2.Every trial court shall ascertain the complete identity of each witness before recording any statement by personally questioning the witness and noting his demeanour.

3.Each witness shall produce their Computerized National Identity Card (CNIC) and, if a government or departmental employee, their service card, for examination by the Court. Counsel for the parties may also examine the same.

4.The CNIC and service card, as the case may be, shall be exhibited in the statement of the witness.

5.The Court shall personally administer oath to every witness in open court before examination.

6.The Court shall ensure that the name, parentage, designation, and departmental posting of each official witness are correctly entered at the beginning of the examination-in-chief.

7.All statements shall be recorded in a clear and legible manner and shall be signed by the Presiding Officer after the recording of each witness, until the digital recording system becomes fully operational.

8.Where the identity or role of any witness appears doubtful, the Court shall defer examination until verification is obtained from departmental or service records, or from the Public Prosecutor.

9.Where necessary for achieving the ends of justice, the Court shall exercise its powers under Section 540 of the Cr.P.C, 1898, to summon or re-examine any witness whose evidence is essential for a just decision.

10.In cases involving false evidence, forged documents, defective investigation, or deliberate obstruction of justice, the Court shall, where necessary, invoke Section 476 Cr.P.C, Section 32 of the KP CNSA, 2019, and Sections 166(2) and 186(2) of the Pakistan Penal Code, 1860 in accordance with law.

11.The prosecution shall ensure that the correct names, designations, and particulars of all witnesses are accurately entered in the challan form submitted under Section 173 of the Cr.P.C.

12.Before presenting a witness in court, the prosecutor shall verify the witness’s CNIC and service card and ensure consistency with the challan and police file.

13.The prosecutor shall ensure that no person whose name does not appear in the challan is produced without the prior permission of the Court.

14.In case of any discrepancy, substitution, or clerical error in the name or identity of a witness, the matter shall be immediately brought to the notice of the Court.

15.The prosecutor shall remain present and vigilant during the recording of statements and shall ensure that each witness is examined, cross-examined, and re- examined strictly in accordance with law.

16.The prosecutor must maintain ethical conduct and act to secure justice, not merely conviction.

17.Advocates shall remember that their primary duty is to assist the Court in the administration of justice under Rule 163 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976.

18.Any discrepancy, irregularity, or error in the identity, evidence, or statement of a witness shall be promptly brought to the attention of the Court.

19.Defence counsel shall avoid deliberate concealment of facts, misstatements, or procedural lapses that may favour their client but defeat the ends of justice.

20.Failure to uphold these duties may amount to misconduct under Rule 175A of the Pakistan Legal Practitioners and Bar Councils Rules, 1976.

21.Each witness shall disclose their true name, parentage, occupation, and designation before recording of evidence. In case any fact is concealed or the Court is misled, the Court shall take appropriate legal action against such witness.

22.Every witness, whether official or private, shall bring their CNIC and service card, as the case may be, for inspection by the Court, and the same shall be exhibited on the record.

15.Consequently, the instant appeal is allowed on the basis of above grounds. The impugned judgment, conviction, and sentence are set aside, and the case is remanded to the trial court

with a direction to re-write the judgment afresh after re- examining the said witness. Both parties shall be afforded an opportunity of cross-examination on the testimony of Hidayat EC or Qaiser Khan EC, as the case may be. The trial court shall also record an amended statement of the accused under Section 342 of the Cr.P.C if any new fact has been brought on record against the accused, and thereafter, after providing both parties an opportunity of arguments, decide the case afresh without being influenced by any observation made in this order. The proceedings shall be completed within one month, positively and without delay. Meanwhile, the appellant shall be treated as under trial prisoner. The Additional Registrar (Judicial) of this Court is directed to circulate this judgment among all criminal courts, the Director General Prosecution with a direction to circulate it among all prosecutors, the Director General of ANF and the Director General of Excise, Taxation and Narcotics Control Department KPK for circulation within their departments, and the Provincial Police Officer with a direction to circulate it among all Station House Officers and Investigating Officers across the province for guidance and compliance.

16.Needless to mention, this Court cannot remain silent on the matter that has arisen in the present case, wherein a witness named Qaiser Khan EC was produced despite his name not appearing in the Challan form as a witness, while the prosecution asserts that he is in fact Hidayat EC. Therefore, the MIT Office of this Court shall take notice and initiate

proceedings to the extent of the trial Court, and the Worthy District and Sessions Judge Peshawar shall take notice to the extent of the concerned staff of the district judiciary. The worthy Director General Prosecution shall take notice to the extent of the District Public Prosecutor Peshawar and the Public Prosecutor who was on duty at the relevant time, and the Worthy Director General Excise, Taxation and Narcotics Control Department shall take notice to the extent of Seizing Officer and IO of the case. Copies shall be sent to the worthy MIT, the District and Session Judge Peshawar, the Director General Prosecution and the Director General Excise, Taxation and Narcotics Control Department KPK, for compliance. They are directed to submit compliance reports before the Court for the perusal of the Bench in chambers. The Office of the Worthy Registrar is directed to implement the directions highlighted in paragraph No 13 within six months.

Announced

CHIEF JUSTICE

JUDGE

(D.B)Justice S. M. Attique Shah, HCJ, Justice Muhammad Ijaz Khan, HJ