Hamza Mushtaq Malik Vs The State

Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Criminal Appeal No.1017-P/2025

Hamza Mushtaq Malik Vs The State

For the appellant(s): Mr. Jehanzeb Khan Khalil, Advocate. For the State: Mr. Muhammad Khalid, Special Prosecutor, for ANF.

Date of hearing: 02.04.2026

Research Assistance: Riaz Aslam Daavi, SRO, PHCP

JUDGMENT

INAM ULLAH KHAN, J.

1.The appellant, Hamza Mushtaq Malik, has assailed the judgment dated 23.09.2024 passed by the learned Judge, Special Court (CNS-II), Peshawar, in FIR No. 100 dated 16.09.2020, registered under Section 9(c) of the CNSA at Police Station ANF, District Peshawar, whereby he was convicted under Section 9(d) of the KP CNSA, 2019, and sentenced to imprisonment for life, along with a fine of Rs. 1,000,000 (Rupees One Million). In default of payment of the fine, he was further directed to undergo simple imprisonment for a period of two years. The benefit of Section 382-B, Cr.P.C., was also extended to him.

2.According to the contents of the murasila and FIR lodged at Police Station ANF, Peshawar, the higher authorities of ANF

received spy information that one Hamza Mushtaq Malik, resident of Chakwal, Punjab, would be transporting a huge quantity of narcotics in vehicle No. AGV-222 from Karkhano Market via Ring Road towards Punjab. Upon receipt of the said information, a raiding party was constituted and dispatched to the spot. The raiding party reached there at about 12:30 hours and started checking vehicles. In the meanwhile, the aforesaid vehicle was seen coming from the side of Hayatabad and was identified by the informer. The vehicle was intercepted and was found to be driven by a person who, on inquiry, disclosed his identity as Hamza Mushtaq Malik son of Mushtaq Ahmad, resident of P.O. Noor Pur, Tehsil Kalar Kahar, District Chakwal. In the presence of the marginal witnesses as well as the accused, the vehicle was searched. During the search, one sack was recovered from the trunk (diggi) of the vehicle. On opening the same, 14 packets of charas wrapped in yellow adhesive tape were recovered. Each packet weighed 1,200 grams, totaling 16.800 kilograms of charas. Likewise, 4 packets wrapped in yellow adhesive tape containing opium were recovered. Each of those packets also weighed 1,200 grams, totaling 4.800 kilograms of opium. Thereafter, 10 grams from each packet of charas and opium were separated for chemical analysis. The charas samples were sealed in separate parcels Nos. 1 to 14, while the opium samples were sealed in parcels Nos. 15 to 18. The remaining charas and opium were sealed collectively in parcel No. 19. All the parcels were sealed with two seals bearing the impression “HR.” Thereafter, the articles recovered during personal search, all 19 parcels, along with the vehicle, were taken into possession vide recovery memo, and the FIR was subsequently registered.

3.After completion of the investigation, the final report/challan was submitted before the learned trial Court. The accused was produced in custody, and the provisions of Section 265-C, CrPC, were duly complied with. A formal charge was framed against him, to which he pleaded not guilty and claimed trial. To substantiate its case, the prosecution examined seven witnesses. After closure of the prosecution evidence, the appellant was examined under Section 342, CrPC, wherein he denied the allegations levelled against him. He did not opt to lead any evidence in his defence; however, he made a statement on oath under Section 340(2), CrPC.

4.After hearing the arguments of the learned counsel for the parties and evaluating the evidence available on record, the learned trial Court, vide judgment dated 23.09.2024, convicted and sentenced the appellant as detailed in paragraph No. 1. Feeling aggrieved by the said judgment of conviction and sentence, the appellant has preferred the instant criminal appeal.

5.Arguments heard and record of the case perused.

6.The use of narcotic drugs is on the rise, causing grave social harm, polluting the environment, and damaging the social fabric of society. Every citizen has the right to live in a drug-free and healthy environment, and the State is under a constitutional obligation to protect public health, as guaranteed by Articles 91 and 9A2 of the Constitution of the Islamic Republic of Pakistan. The scope of Article 9A, which confers upon every person the right to a clean, healthy, and sustainable

9.Security of person. No person shall be deprived of life or liberty save in accordance with law.

9A. Clean and healthy environment. Every person shall be entitled to a clean, healthy and sustainable environment.

environment, cannot be interpreted in a narrow or restricted manner. Rather, it must be given a purposive and liberal construction, read in harmony with Article 9, which guarantees the right to life and there is no life without dignity.3 Thus understood, the expression “healthy environment” encompasses not only freedom from environmental pollution and degradation, but also protection against social conditions and harmful influences that threaten public health and undermine the well-being of society. In other words, a “healthy environment” is not confined merely to pollution-free air, water, and ecological balance, but extends to all conditions that are essential for the physical, mental, and social well-being of individuals. The menace of narcotic drugs, which seriously damages physical and mental health, promotes criminality, and corrodes the moral and social fabric of the community, plainly constitutes a threat to such an environment. Consequently, the eradication of narcotic substances and the prevention of drug abuse fall squarely within the constitutional duty of the State to secure a healthy environment for its citizens. Pakistan is further bound, both under municipal law and international commitments, to take effective measures against drug trafficking and drug abuse. The gravity of this menace, therefore, demands a firm, effective, and sustained response in order to protect public health and maintain social order. This Court, in Muhammad Sabir vs The State (CR.A 51-P/2025),4 has beautifully elaborated the situation in the following words:

“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 2024 PLD SC 925, 2024 PLD SC 795), 2024 PLD Lah 451, 2023 PCrLJ 78, 2023 PLD Lah 19, 2027 SCMR 683, 2014 PLD Islamabad 83, 2013 SCMR 66.

2026 PHC 132

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 declarations5 formulated to combat the menace of narcotic drugs and psychotropic substances. These include the Single Convention on Narcotic Drugs, 19616, as amended by the 1972 Protocol amending the Single Convention on Narcotic Drugs, 1961; the Convention on Psychotropic Substances, 19717; and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 19888. The provisions of Article 12 of the 1988 Convention have been incorporated into Section 7 of the Control of 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, 20099. In the regional context, Pakistan is a party to the SAARC Convention on Narcotic Drugs and Psychotropic Substances, 199010, and has further entered into the Protocol on Drug Matters with member countries of the Economic Cooperation Organization (ECO)11. 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 substance must be proved. Second, 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 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

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 judgments12, 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 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 Gill13 and Imdad Ullah14, 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. “

7.The crux of the above-referred judgment, along with the judgments referred to therein, is that despite frequent arrests and recovery of narcotics, convictions remain rare due to defective investigation and non-compliance with settled legal principles. In such cases, the prosecution must prove the recovery, the prohibited nature of the substance, and its 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.

Zahid Sarafarz Gill Vs The State (2024 SCMR 934) Imdad Ullah Vs The State (2024 Pcr. LJ 652 Pesh)

conscious possession by the accused. It must further establish safe custody and secure transmission of the case property from the place of recovery to the forensic laboratory through an unbroken chain of custody, as any defect therein impairs the credibility of the FSL report. Keeping these principles in view, this Court now proceeds to assess the present case.

8.For the purpose of reappraisal of the evidence available on record, we deem it appropriate to first examine the depositions of Haroon Rasheed, SI (PW-3/complainant), and Constable Usman Naseer (PW-4), one of the marginal witnesses to the recovery memo. In their respective examinations-in-chief, both the said witnesses fully supported the prosecution case as narrated in the murasila (Ex.PW-3/2) and the recovery memo (Ex.PW-3/1). Haroon Rasheed, SI (PW-3), while appearing in the witness box, categorically substantiated the charge against the appellant/accused and exhibited all the relevant documents prepared by him. He deposed that, after effecting recovery of the contraband, he weighed the same at the spot and separated representative samples therefrom for FSL analysis. He further stated that he took into possession the sealed parcels of the contraband as well as the representative samples vide recovery memo (Ex.PW-3/1), duly attested by the marginal witnesses, namely Constable Usman Naseer and Daud Khan. The complainant also conducted the personal search of the accused and recovered debit cards, one visa card, one original CNIC in the name of Hasan Raza, and a dark brown purse containing Rs. 800/- (Ex.P1 to Ex.P4). He took into possession the entire case property, the personal belongings of the accused, and the case vehicle along with its key vide recovery memo (Ex.PW-3/1),

duly signed by the marginal witnesses. He further deposed that, after preparing the murasila (Ex.PW-3/2), he handed over the same, along with other relevant documents, to Constable Usman (PW-4) for registration of the FIR. PW-3 further stated that, upon reaching the police station, he handed over the accused to Moharrir Amjad Afridi (PW-2), who kept him in the police station lock-up. He also deposed that he handed over all the case property, along with the case vehicle and an application addressed to the FSL, to Incharge Malkhana Abid Khan Kakar (PW-6) for safe custody, with directions to send the sample parcels to the FSL for analysis. He further stated that he later received the FSL report and placed the same on the record. Thereafter, he continued the investigation of the case. Constable Usman Naseer (PW-4), being a marginal witness, fully corroborated the testimony of PW-3 on all material particulars.

9.With regard to the safe transmission of the recovered contraband to the police station, PW-3 deposed that, after effecting the recovery and completing all necessary proceedings at the spot, he transported the accused along with the case property to the police station. He handed over the entire case property to Incharge Malkhana, SI Abid Khan Kakar (PW-6), who entered the same in Register No. 19 for safe custody and parked the vehicle in the police station premises. The prosecution also examined Amjad Afridi, HC/Moharrir, as PW- 2, who confirmed receipt of the murasila through Constable Usman Naseer and further stated that, upon the return of the complainant/PW-3 Haroon Rasheed, SI, the accused was handed over to him and kept in the police station lock-up. Likewise, the prosecution examined SI Abid Khan Kakar,

Incharge Malkhana, as PW-6, who stated that on 16.09.2020, the complainant/investigating officer handed over to him the sealed sample parcels, the remaining case property, the articles recovered during the personal search of the accused, the case vehicle along with its key, and an application addressed to the FSL. He kept the contraband in safe custody in the Malkhana, made the requisite entry in Register No. 19, and parked the vehicle in the police station premises. He further deposed that on 17.09.2020, he handed over the sealed parcels of the remaining case property to the investigating officer for production before the Court, who, after producing the same, returned them to the Malkhana. On the same date, PW-6 also handed over sealed parcels Nos. 1 to 14 of charas and Nos. 15 to 18 of opium, each weighing 10 grams and bearing two seals with the monogram “HR,” to Constable Nasir Hayat (PW-1), along with the FSL application, route certificate, and relevant documents, for onward transmission to the FSL laboratory. He further stated that after depositing the parcels at the FSL and obtaining acknowledgment, the said constable returned the same to him. The consistent and mutually corroborative statements of these prosecution witnesses satisfactorily establish the chain of safe custody of the recovered contraband from the time of its seizure until its deposit in the Malkhana.

10.As regards the safe transmission of the sample parcels to the FSL, Constable Nasir Hayat (PW-1) deposed that on 17.09.2020, Moharrir Abid Khan Kakar (PW-6) handed over to him sealed parcels Nos. 1 to 14 of charas and parcels Nos. 15 to 18 of opium, each weighing 10 grams and bearing two seals with the monogram “HR,” along with a copy of the FIR, recovery memo, application to the FSL, Urdu docket, route

certificate, and Form-I, for onward transmission to the FSL, Peshawar. He further deposed that he carried the said parcels to the FSL, and after obtaining acknowledgment from the concerned authorities, returned the receipt to PW-6. The safe transmission of the samples is further borne out by the FSL report (Ex.PW-3/12), which reflects that the sealed parcels were received in the laboratory through the said constable. The consistent and trustworthy oral as well as documentary evidence, including the testimony of PW-1, the route certificate, and the FSL report, sufficiently establishes the safe and uninterrupted transmission of the sample parcels from the time of seizure until their receipt at the FSL. In these circumstances, the chain of custody remained intact, and no material discrepancy has been brought on record to create any doubt regarding the safe dispatch or delivery of the sealed samples.

11.Moreover, the appellant, Hamza Mushtaq Malik, was the driver of the vehicle and, therefore, was responsible for whatever was found therein. In narcotics cases, once the prosecution proves that the narcotic substance was recovered from the accused, the law presumes that he was in conscious possession thereof unless he proves otherwise. Where the accused is the driver of a vehicle, he is ordinarily treated as being in control of the vehicle and its contents; therefore, knowledge of the narcotics may be attributed to him.15 He cannot, therefore, be absolved of liability for the contraband recovered from the said vehicle unless he rebuts the presumption through cogent and reliable evidence. Reliance is Ali Muhammad vs The State (2013 PCr.LJ 915 Peshawar), 2010 SCMR 927, 1988 SCMR 1899, 2013 MLD 57 Peshawar, 2012 PCr.LJ 313 Peshawar.

placed on “Muhammad Noor and others Vs. The State” (2010 SCMR 927) wherein it was held: -

8.As regards Driver of the vehicle, it is important to note that when he is driving the vehicle, he is Incharge of the same, therefore, it would be under his control and possession. Hence, whatever articles lying in it would be under his control and possession. The liability of the driver, in view of provisions of section 27 of P.P.C., has been considered by this Court in the case of Sherzada v. State 1993 SCMR 149, wherein it was observed as under: --- The next point raised by the learned counsel was that it is provided in section 27, P.P.C. that when property is in the possession of wife, clerk or servant on account of that person, it is in that person's possession within the meaning of this Code. The learned counsel argued that the appellant was a driver, hence an employee of the owner of the car and even if he is admitted to be in possession of the contraband article on behalf of the owner, he cannot be said to be liable for that possession. But this argument of the learned counsel is without force on the face of it because section 27, P.P.C. is confined to the Pakistan Penal Code only, as the words "within the mean of this Code" appearing in that section clearly indicate. This section has not been made applicable to the Prohibition (Enforcement of Hadd) Order, 1979 as is evident from Article 26 of that Order where certain other provisions of the P.P.C. have been made applicable."

This Court in the case of Adil Ahmed v. Deputy Collector, C&CE 1991 SCMR 1951 has observed that in view of the provisions of Customs Act, the drivers and owners were both responsible.

In the case of Rab Nawaz v. The State PLD 1994 SC 858, the liability of drivers was again considered and lenient view was taken, as they expressed their ignorance about the contents and claimed to be simple carriers. In the present case the appellant did not claim to be carrier. This Court in the case of Nadir Khan v. State 1988 SCMR 1899 has observed that knowledge and awareness would be attributed to the Incharge of the vehicle. The relevant portion reads as under:---

"We have gone through the evidence on record and find that the petitioners had the charge of vehicle for a long journey starting from Peshawar and terminating at Karachi. They had the driving licence also. As being person Incharge of the vehicle for such a long journey, they must be saddled with the necessary knowledge with regard to the vehicle and its contents."

In Shah Nazar v. The State (PLD 2019 Balochistan 34), the Balochistan High Court authoritatively held as under:

“It is well settled principle that a person who is on driving seat of the vehicle shall be held responsible for transportation of narcotics as held by the Hon'ble Supreme Court in the case of Kashif Amir v. State PLD 2010 SC 1052. The relevant portion is reproduced hereunder:

"It is well settled principle that a person who is on driving seat of the vehicle, shall be held responsible for transportation of the narcotics, having knowledge of the same as no condition or qualification has been made in section 9(b) of CNSA that the possession should be an exclusive one and can be joint one with two or more persons. Further, when a person is driving the vehicle, he is lncharge of the same and it would be under his control and possession, hence, whatever articles lying in it would be under his control and possession. Reference in this behalf may be made to the case of Muhammad Noor v. The State (2010 SCMR 927). Similarly, in the case of Nadir Khan v. State (1988 SCMR 1899) this Court has observed that knowledge and awareness would be attributed to the Incharge of the vehicle."

This Court, in Shah Pur v. The State (2016 MLD 857 Peshawar), held as follows:

“However, the role of petitioner being driver of the vehicle is different than the role of co-accused who were occupying other seats as the petitioner being driver of the vehicle, was Incharge of the same and all the articles lying therein would be under his control and possession, so recovery of 1000 grams heroin from secret cavity of the said vehicle would have been in the conscious knowledge of petitioner and recovery of total 1500 grams of heroin made jointly from his possession and secret cavity of his car having conscious knowledge about the same being driver of the vehicle. Besides, it is well settled principle that a person who is on driving seat of the vehicle, shall be held responsible for transportation of the narcotics having knowledge of the same as no condition or qualification has been made in Section 9(c) of CNSA that the possession should be an exclusive one and can be joint one with two or more persons. The wisdom is derived from the case titled, "Kashif Amir v. The State" (PLD 2010 SC 1052).”

In another case, namely Mubali Khan v. The State (2013 YLR 1895 Peshawar), this Court held as follows:

8.As regards the contention of the learned counsel for the appellant that prosecution has not proved the conscious knowledge of the accused, from the evidence it is established that accused at the relevant time was driving the motorcar in question and was incharge of the same which was under his control and possession. Whatever articles were lying in the vehicle were under his control. Huge quantity of narcotic has been recovered from the secret cavities of his car for which no other person could be held responsible, except the appellant who was incharge of the vehicle which he was driving.

In Barkat, etc. v. The State (2014 PCr.LJ 1295), the Sindh High Court held as under:

“Insofar as the case of appellant Barkat is concerned, he was driver of the vehicle and driver has to be presumed to be having knowledge of availability of recovered Charas and such presumption is corroborated with the evidence”.

12.The above-referred judgments make it clear that mere presence in a vehicle is not sufficient to connect an accused with the recovery of narcotics. The case of the driver or person in charge of the vehicle, however, stands on a different footing, as such person is ordinarily presumed to be aware of the contents of the vehicle unless the contrary is proved. Other occupants, who are merely present in the vehicle, cannot ordinarily be held liable unless there is evidence showing that the narcotics were placed in their presence, were visible to them, or that they otherwise had knowledge of and connection with the contraband. Thus, a positive presumption operates against the driver, which he must rebut, whereas against a mere passenger no such presumption ordinarily arises unless the prosecution first produces evidence connecting him with the contraband.

13.So far as the defence plea of the appellant is concerned, the same does not inspire confidence. The statements made by him under Sections 342 and 340(2), Cr.P.C., are largely evasive and do not furnish any plausible or convincing explanation regarding the incriminating circumstances appearing against him in the prosecution evidence. Despite having full opportunity to substantiate his plea, the appellant neither offered any meaningful explanation nor adduced any independent or cogent evidence in support of his version. Moreover, the stance attributed to the father of the appellant during reinvestigation is not only inconsistent with the appellant’s own version but also appears to be a belated attempt to create doubt in the prosecution case. Such a plea, raised after considerable delay and unsupported by independent evidence, carries little evidentiary worth. The contradictions between the defence narrative and the established facts on record, particularly the recovery of narcotics from the vehicle admittedly being driven by the appellant at the relevant time, further diminish the credibility of the defence plea. In these circumstances, the defence version appears to be a mere afterthought and is wholly insufficient to rebut the otherwise reliable and confidence-inspiring prosecution evidence.

14.The defence, despite lengthy cross-examination, failed to extract any material contradiction or discrepancy from the prosecution witnesses that could cast doubt on their credibility. The witnesses remained consistent on all material facts, and their testimony stands corroborated by the documentary evidence as well as the positive FSL report. The defence also failed to establish any ill will or mala fides on the part of the complainant or the local police. The seizure, recovery, and

chain of custody have been duly proved through direct and confidence-inspiring evidence. On the basis of the above reappraisal, we are clear in our minds in concluding that the prosecution has successfully established the charge against the appellant, being the driver, beyond reasonable doubt. Consequently, the conviction of the appellant, Hamza Mushtaq Malik, by the learned trial Court vide impugned judgment dated 23.09.2024, does not call for any interference; therefore, the same is maintained and the instant criminal appeal stands dismissed.

Announced.

(M.Iqbal)

JUDGE

JUDGE

(D.B) Hon’ble Mr. Justice Sahibzada Asadullah & Hon’ble Mr. Justice Inam Ullah Khan.