Muhammad Amir Vs The State etc

Judgment Sheet

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Jail Criminal Appeal No.1066-P/2025 Muhammad Amir...............................Appellant. Versus The State etc...............................Respondents.

Present:

Mr. Waqas Khan Chamkani, Advocate, for the appellant(s).

Mr. Nouman Ul Haq Kakakhel, AAG, for the State.

Date of hearing:

JUDGMENT

MUHAMMAD IJAZ KHAN, J.- Through the instant appeal, the appellant/convict, namely Muhammad Amir s/o Sher Muhammad, has challenged the order and judgment of learned Judge Special Task, Peshawar dated 18.10.2025, whereby he was convicted and sentenced to Rigorous Imprisonment (R.I) for life with a fine of Rs.1,000,000/- (One Million) and in case of default in payment thereof to further undergo six (06) months’ Simple Imprisonment (S.I) under section 11-C of The Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 (hereinafter referred to as “The Act of 2019”) in case FIR No.141 dated

13.12.2023 under section 11-C of The Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 of Police Station Excise, Peshawar. Benefit of section 382-B Cr.P.C was extended to the appellant/ convict.

2.Precisely, the facts of the present case are that, after registration of the case, a full-fledged investigation was carried out and thereafter challan against the appellant/convict was put in Court, where charge was framed and served upon him, to which he pleaded “not guilty” and claimed trial. The prosecution produced its evidence against the appellant/convict and accordingly examined as many as five (05) witnesses in support of its case, and thereafter statement of the appellant/convict under section 342 Cr.P.C was recorded, wherein he refuted the allegations leveled against him;

however, neither he produced any evidence in defence nor opted to record his statements on oath under section 340(2) Cr.P.C. After conclusion of the trial and hearing the arguments of the parties, the learned trial Court convicted and sentenced the appellant/convict vide impugned order/judgment dated 18.10.2025, as mentioned in Para No.1 of this judgment. The appellant/accused has now

challenged the aforesaid order/judgment through the instant appeal before this Court.

3.Arguments heard and record perused.

4.It is the case of the prosecution, as set in the Murasila (Ex.PA), lodged by the Seizing Officer, namely Rasool Rehman Khattak SHO (PW-2), that on the day and time of occurrence, he, alongwith other police personnel, was present on the spot, for checking of narcotics when, in the meanwhile, a suspicious person appeared there, who was stopped and, upon query, he disclosed his name as Muhammad Amir s/o Sher Muhammad (appellant herein). On his personal search, two packets of ICE, which were wrapped in yellow saloshan tape and tied to both his thighs with the help of another crystal white saloshan tape, were recovered. The recovered contraband was weighed on the spot with a digital scale; one packet turned out to be 500 grams while the second 548 grams, making the total weight as of 1048 grams. From each packets, 5/5 grams was separated and sealed into parcels No.1 and 2 for FSL analysis, whereas the remaining ICE, weighing 1038 grams, was sealed into parcel No.3 (Ex.P-1) as case property by affixing 3/3 monograms bearing the initials “RRK”. The Seizing

Officer/complainant also recovered one simple Nokia mobile phone (Ex.P-2) alongwith a colour photocopy of the CNIC of the accused (Ex.P-3). To this effect, the Seizing Officer/complainant (PW-2) prepared recovery memo (Ex.PW-2/1), arrest card (Ex.PW-2/1) of the accused, drafted Murasila (Ex.PA), and thereafter handed over the Murasila, recovery memo, all the parcels, and the accused to Shakeel Munir ASI (PW-3) and Arshad (abandoned PW) for taking the same to the police station for registration of case F.I.R (Ex.PA/1) and for depositing the case property in the malkhana.

5.In order to substantiate the aforesaid allegations against the appellant/convict, the prosecution has examined the Seizing Officer/ complainant, namely Rasool Rehman Khattak SHO, as PW-2, who, in his examination-in-chief, has fully supported the prosecution's case from its inception till the end. He has deposed that on the day of occurrence, while he, along with other police officials, was present at the place of occurrence, the appellant/convict was found in a suspicious condition and, on his personal search, two packets of ICE were recovered tied to both of his thighs. He has further stated that after the recovery, both packets were weighed, samples were separated

therefrom, and three parcels were prepared, out of which two were containing the samples, while the third was containing the remaining case property.

He has also categorically stated that thereafter he prepared the recovery memo, which was duly signed by the marginal witnesses, namely Shakeel Munir and Arshad, and then handed over all the relevant articles along with the accused to the said officials for taking the same to the police station.

6.In order to further corroborate the aforesaid stance, the prosecution has also produced Shakeel Munir ASI, one of the marginal witness to the recovery memo (Ex.PW-2/1), as PW-3, and he too has supported the case of prosecution by stating that on the relevant day he was accompanying the Seizing Officer/ complainant (PW-2) and that the recovery was effected in his presence. He has recorded a detailed statement supporting all the events which have taken place on the spot at the time of recovery of contraband from the appellant/convict. He has further deposed that after preparation of the Murasila (Ex.PA), recovery memo (Ex.PW-2/1), card of arrest (Ex.PW-2/2), and other documents, as well as the preparation of parcels, the same, alongwith the accused, were handed over to him and P.W Arshad for taking them to the police

station. Both these witnesses have been cross- examined by the prosecution in considerable detail;

however, no material contradiction could have been extracted from them in their statements so as to substantially shatter the prosecution's case. We have thoroughly gone through their statements as well as their cross-examination; however, we did not find any material contradiction(s) therein and as such there is no justified reason that as to why their statements be excluded from consideration. In a situation akin to the present one in the case1, the Hon’ble Apex Court has held that we have gone through the statements of PWs and find them in a comfortable and confident unison on all the salient aspects of the raid as well as details collateral therewith. Learned counsel for the petitioner has not been able to point out any substantial or major variation or contradiction in their statements that may possibly justify excluding their testimony from consideration. On the contrary, it sounds straightforward and confidence inspiring without a slightest tremor.

7.In the instant case, the prosecution has also been able to prove that the contraband, alongwith “Shabbir Hussain v/s The State” reported as 2021 SCMR 198

the parcels containing the samples and remaining case property, have safely been transmitted from the spot to the police station and their safe custody in the police station and then their transmission from the police station to the FSL, as it is evident from the Murasila (Ex.PA) that after preparation of the parcels containing the samples and remaining case property, along with other documents and the accused, the same were handed over by the Seizing Officer (PW-2) to Shakeel Munir ASI (PW-3) for taking them to the police station. The prosecution has also produced the said Shakeel Munir ASI as PW-3 and who has endorsed the aforesaid factum and has categorically stated that upon arrival at the police station, he handed over the parcels and documents to the Muharrar of the police station, namely Sheryar ASI. The said Muharrar has also been examined by the prosecution as PW-1 and who has deposed that on the date of recovery, he had received the parcels containing the samples and remaining case property, alongwith the Murasila and recovery memo, from Shakeel Munir (PW-3) and the abandoned PW Arshad, and thereafter made an entry in Register No.19, the extract whereof was exhibited as Ex.PW-1/1. The said Muharrar (PW-1) has further stated that on the

following day, i.e., 14.12.2023, he handed over parcels No.1 and 2 containing the samples to Constable Syed Mohsin Ali Shah against receipt Rahdari (Ex.PW-1/2), alongwith the FSL application (Ex.PW-2/3), for onward transmission to the FSL.

The said constable deposited the same at the FSL and, on the same day, he returned the receipt Rahdari bearing the original acknowledgment stamp of the FSL officials. The prosecution has also examined the said carrier of the samples, namely Syed Mohsin Ali Shah, as PW-4, and who too has corroborated the prosecution case by confirming that he had taken the sample parcels to the FSL on 14.12.2023 and thus the prosecution has been able to prove the mode and manner of the recovery, the separation of the samples from each packet on the spot, sealing the same into separate parcels, its transportation from the spot to the police station and the safe custody within the police station and then the transmission of the samples from the police station to the FSL. In a case2, the Hon’ble Apex Court has held that learned High Court after perusal of evidence has rightly found that on the same day when the narcotic was recovered from the petitioner “Faisal Shahzad v/s The State” reported as 2022 SCMR 905

i.e. 27.02.2012, 10 sealed sample parcels of contraband charas and five sealed sample parcels of opium were received by Falak Sher, HC (PW-1) for safe custody. The said PW handed over the said samples to Mumtaz Hussain (PW-2) on 02.03.2012 along with road certificate for their onward transmission to the office of Chemical Examiner, Multan. This fact was confirmed and testified by the said Mumtaz Hussain, who took the samples to the office of Chemical Examiner on the same day. The reports of the Chemical Examiner also testify this fact, therefore, it can safely be said that the safe chain of custody of the recovered narcotics was not compromised at all. Similarly, in another case3, the Hon’ble Apex Court has reiterated the same rational by holding that even otherwise, on merits, we could not find anything from the record, which could suggest that the safe chain of custody of the narcotic was compromised. The close analysis of the whole prosecution evidence i.e. the recovery of huge quantity of narcotics, the happening of the occurrence in broad daylight, report of the Chemical Examiner and the statements of the prosecution witnesses when evaluated conjointly, there is no other option left with the Court except to rely on the “Liaqat Ali & another v/s The State” reported as 2022 SCMR 1097

statements of the prosecution witnesses for the purpose of conviction as recorded by the two courts below. In view of the above, the prosecution has successfully established the safe transmission and safe custody of the contraband, which was recovered from the possession of the appellant.

8.It would also be relevant to mention here that in narcotics cases, the prosecution is under an obligation to prove that the contraband allegedly recovered from the accused was in fact a psychotropic substance or prohibited narcotic; and, in the instant case, the prosecution has successfully discharged the said burden, as after the recovery, samples were separated from both packets and sent to the FSL for analysis, and the report thereof (Ex.PZ) would show that the parcels were containing ICE, therefore, the prosecution has been able to prove that the contraband recovered from the appellant was, in fact, Methamphetamine (ICE).

9.In view of the foregoing discussion, the prosecution has been able to prove the recovery of contraband (ICE) from the appellant/convict through cogent, convincing, and confidence-inspiring evidence; however, now this Court would proceed to determine that as to whether the impugned

punishment in the kind of life imprisonment which has awarded by the learned trial Court is legally sustainable or whether the same needs any modification?

10.It would be relevant to mention here that, as per the prosecution case, two packets of ICE were allegedly recovered from the appellant/convict, which were wrapped in yellow saloshan tape, which were further found tied to his thighs with another crystal colour saloshan tape. Upon weighment, one packet turned out to be 500 grams while the other of 548 grams, making the total alleged weight of recovered ICE as 1048 grams; however, it has not been established on record that as to whether the said packets were weighed alongwith the saloshan tape and packing material or not, or whether the recorded weight represents the net weight of the recovered substance alone or not; and thus in the absence of any such material on the available record, the case of the appellant appears to be a borderline case between sections 11(b) and 11(c) of The Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019; however, this important aspect of the matter has not been properly considered by the learned trial Court while awarding the impugned punishment of life imprisonment to the

appellant that as to whether he would be liable to punishment under section 11(b) or section 11(c) of The Act of 2019. The uncertainty qua the exact weight of the recovered substance gains a defining significance as under section 11 of The Act, 2019, the award of punishment is dependent on the corresponding quantity of methamphetamine allegedly recovered from an accused person. The said section of The Act of 2019, being relevant, is reproduced below:-

“11. Punishment for contravention of section 10.-Whoever, contravenes the provisions of section 10 shall be punished with-

a) imprisonment, upto seven (07) years and shall also be liable to fine not less than rupees three (03) lac, if the quantity of methamphetamine does not exceed 100 grams;

b) imprisonment, not less than ten (10) years and shall also be liable to fine not less than rupees five (05) lac, if the quantity of methamphetamine exceeding 100 grams, but does not exceed one (01) kilogram; and c) death, imprisonment for life or imprisonment for a term which may extend upto fourteen (14) years and with a fine which may extend to rupees one (01) million, if the quantity of methamphetamine exceeds one (01) kilogram:

Provided that if the quantity of methamphetamine exceeds five (05) kilograms, the punishment shall not be less than imprisonment for life in any case.”

The aforesaid provision describes offences with respect to recovery of methamphetamine into three categories with corresponding punishments. If the quantity of recovered methamphetamine is less than 100 grams, then the offence is punishable under clause (a), or if the quantity exceeds 100 grams but less than one (01) Kilogram (1000 grams), then the offence is punishable under clause (b), and if the same exceeds one (01) Kilogram, then the offence is punishable under clause (c) of the ibid section. In view of the above, when the prosecution has failed to establish on the available record that the net weight of the contraband allegedly recovered from the appellant/convict was, in fact, more than 1000 grams, and when it remains a begging question on the available record that as to whether the contraband was weighed alongwith the packing material and two kinds of saloshan tape or whether the stated weight represents the net weight of the substance recovered, then the learned trial Court should have been awarded punishment to the appellant/convict under section 11(b) instead of section 11(c) of The Act of 2019. It also merits to mention here that though the instant occurrence has taken place on 13.12.2023, whereas, subsequently, through an Act No. XII of 2025, an amendment in

section 11 of The Act of 2019 has been brought, whereby punishment for a quantity of methamphetamine of one (01) gram up to exceeding four (04) Kilograms (4000 grams) with corresponding punishment have been provided. The said amendment in section 11 is, though irrelevant for the present case, but for the purpose of more clarity of the intention of the legislature, the same is also reproduced in verbatim as under:- “11. Punishment for contravention of section 10.---(1) Whoever contravenes the provisions Column No. 3 of the Table below, with regard to quantity of psychotropic substances given in of section 10. regarding psychotropic substances, shall be punished with punishment as given in Column No. 2 thereof, namely:

The aforesaid amendment brought in section 11 of The Act of 2019 would also show that if the recovered quantity of psychotropic substance is up to one (01) Kilogram (1000 grams), then the offence falls under clause (5) and if the same exceeds one

(01)Kilogram but less than two (02) Kilograms (2000 grams), then the same would fall under clause (6), which respectively provides punishments which may extend to seven (07) years or ten (10) years, as the case may be, and thus even under the newly introduced amendment, the maximum punishment, which may be granted to the appellant in case of recovery of methamphetamine from 1000 grams (01 Kg) up to 2000 grams (02 Kg) is ten (10) years. It may be reiterated that since the narcotics laws provide for severe and harsher punishments, therefore, the prosecution is under a strict obligation to prove its case qua the exact quantity of the recovered substance so that the accused may be awarded the corresponding punishment for the quantity actually recovered and proved by the prosecution.

11.In view of what has been discussed above, the instant appeal is partially allowed and consequently, the conviction recorded by the learned Judge Special Task, Peshawar, vide

impugned judgment/order dated 18.10.2025, is maintained; however, the sentence awarded to the appellant is modified and thereby instead of imprisonment for life under section 11(c) of The Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, the appellant is convicted and sentenced under section 11(b) of the said Act to undergo ten (10) years’ Rigorous Imprisonment (R.I), whereas the punishment with respect to the amount of fine is maintained. Benefit of section 382- B Cr.P.C. is also extended to the appellant.

Announced:

CHIEF JUSTICE

JUDGE

(D.B) Hon’ble Mr. Justice S.M. Attique Shah, Chief Justice & Hon’ble Mr. Justice Muhammad Ijaz Khan (Shahid Nawaz, Steno)