Riaz Khan Vs The State

IN THE PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

Cr. A No. 1211-P/2025

Riaz Khan...........................................Appellant Vs.

The State and another......................Respondents Present: Mr. Shaiber Khan, advocate for the appellant.

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

Date of hearing: 21.05.2026.

JU D G M EN T

MUHAMMAD IJAZ KHAN, J.- Through this appeal, appellant namely Riaz Khan son of Muhammad Akbar has called in question the order and judgment of his conviction and sentence passed by the learned Addl:

Sessions Judge/ Judge Special Court, Hangu dated 26.11.2025, vide which the appellant was convicted under Section 9-D of The Khyber Pakhtunkhwa Control of Narcotics Substances Act, 2019 and sentenced to imprisonment for life along with fine of Rs. 500,000/- (Five Hundred aThousand). In default of payment of fine, appellant has further to suffer simple imprisonment (S.I) for a period of six (06) months. Benefit of Section 382-B was extended to the appellant.

2.After full fledge investigation, complete challan was submitted before the Court u/s 173 Cr.PC on 21.01.2025. The appellant then accused was summoned by the learned trial Court and charge was framed against him on 03.02.2025, to which he did not plead guilty and claimed trial. The prosecution was invited to produce its evidence, who accordingly examined as many as six (06) witnesses in support of the case. Thereafter, statement of accused was recorded under section 342 Cr.P.C and on conclusion of the trial in the case, the appellant was convicted and sentenced by the Court of learned Sessions Judge/Judge Special Court, Hangu vide the impugned order/ judgment dated 26.11.2025. The appellant has now challenged the aforesaid judgment by filing the instant appeal before this Court.

3.Arguments of learned counsel for the appellant as well as learned AAG appearing on behalf of the State were heard in considerable detail and the record perused with their able assistance.

4.It is the case of prosecution, as set in the Murasila, Ex.P.A/1, that on 30.08.2024, complainant Fayaz Khan, SHO, along with police contingent was present at New Sabzi Mandi in official pickup No.

CH-1671, driven by Constable Hassan Murtaza No.137, in connection with checking and Nakabandi duty. At about 01:30 hours, the complainant received information that one Riaz Khan would smuggle a huge quantity of Charas in a white motorcar bearing registration No. W-3359/Karachi from District Orakzai via Hangu. Acting upon the said information, the SHO along with the police party, proceeded towards the place of occurrence for strict checking of the said vehicle. At about 01:50 AM, the said motorcar was intercepted at PTC Pathak Nakabandi.

The driver disclosed his identity as Riaz Khan S/o Muhammad Akbar, resident of Pera, District Orakzai.

On search of the accused, nothing incriminating was recovered from him, however, on search of the vehicle, a secret cavity was found beneath the bonnet from where 12 packets of Charas, wrapped in yellow tape, were recovered. On weighment, each packet weighed 1250 grams, making a total of 15,000 grams.

Out of the recovered contraband, 10/10 grams samples were separated from each packet and sealed the same in parcel No. 1 to 12, whereas, the remaining contraband was sealed in parcel No. 13. Videography of the recovery proceedings was also conducted, and

the memory card used for recording was sealed separately in parcel No. 14. The recovered contraband, memory card, and vehicle were taken into possession vide recovery memo (Ex.PC). The accused was arrested on the spot and thereafter, Murasila (Ex.PA/1) was prepared and sent through Jahid Ali IHC for registration of the FIR. Consequently, the instant FIR was registered against the accused.

5.In narcotics cases, the prosecution is duty bound to prove the mode and manner of the occurrence, recovery of contraband from the accused, the separation of samples from the substance when it is in the packet/slab form as well as the safe custody and safe transmission of the said parcels from the spot to the police station, within the police station, and then the transportation of the parcels containing samples from the police station to the FSL as well as to prove that the recovered stuff was in fact a Phystific substance as punishable under The Narcotics Laws, therefore, now this Court would proceed to analyze and evaluate the prosecution evidence that as to whether the prosecution has been able to bring home the charge against the appellant or not?

6.In order to prove that the alleged recovery from the appellant was narcotics of the kind as alleged by the prosecution and that in the process it has also to prove the safe custody and safe transmission of the parcels and the remaining property from the spot to the police station, its safe custody within the police station and from the police station to the FSL, however, in the present case, the prosecution has not been able to prove the same as it is the case of prosecution as set by the Seizing Officer/Complainant in the Murasila, Ex.PA/1 that he brought the parcels containing samples from the spot and handed over the same to the Moharrir and then the Moharir of the police station namely Qasid Ali, who has appeared as P.W-2 has endorsed the said fact and has also stated that he has made the relevant entry in register No. XIX (Ex.P.W 2/1). The said Moharrir (P.W-2) has further stated that he on 31.08.2024 had handed over the parcels No. 1 to 12 containing samples separated from 12 packets to P.W-01, Rafi Ullah, however, the abstract of register No. XIX is before us, which would show that the parcels No. 1 to 12, which were containing samples of 12 packets as separated by the Seizing Officer were handed over to one Asim Raza No. 52 as against a

proper receipt for taking the same to the FSL, however, subsequently, the prosecution has produced one Rafi Ullah as P.W-1, who has stated that it was he to whom parcels No. 1 to 12 were handed over by the Moharrir against route certificate No. 160/21-C for taking the same to the FSL and thus, the ocular account furnished by the prosecution in support of safe custody of the parcels containing samples is materially contradicted by the entries of register No. XIX. It is interesting to note that in register No. XIX, there is no reference that parcels No. 1 to 12 were handed over to Rafi Ullah, P.W-1, who was produced by the prosecution as carrier of the samples. It would be relevant to mention that this Court in a number of judgments in various cases has held that where an ocular account qua the deposit of samples and remaining case property in the police station and transmission of the samples from police station to the FSL have been proved by the prosecution through its ocular account, then minor omission qua the non-signature of the depositor or carrier or any other omission(s) in this regard could not be appreciated in favor of the accused person, however, where the ocular account is out rightly in contrast with the entries of register No. XIX, then

such contradiction could not be ignored as was noted in the present case, where though the prosecution has produced the ocular account to the effect that parcels containing samples were taken by Rafi Ullah from the police station to the FSL, while the register No. XIX on one hand does not reflect his name and on the other, the same would show that they were handed over to one Asim Raza for taking the same to the FSL. The aforesaid lacuna in the prosecution case gains more significance when it is seen that the said Asim Raza has not even been produced by the prosecution, therefore, in the given facts and circumstances, the prosecution has not been able to prove the safe transmission of the parcels containing samples from the police station to the FSL and as such, the FSL report as relied upon by the prosecution would be of no benefit.

7.Another aspect which was noted by us is that in this case neither the original register No. XIX has been produced before the Court nor copy of it has been placed on file and only, a hand made plain paper under a title of “Khaka register No. XIX” has been produced, which attempt of the prosecution to prove the safe custody of parcels could not be approved or

appreciated in its favor, as as per The Police Rules, 1934, the register No. XIX has prescribed columns and then maintaining the said register No. XIX has a statutory backing but in the present case, the prosecution has only relied upon a hand made plain paper, which would not be sufficient to held that the prosecution has discharge its burden in this regard and thus, in view of the above, the prosecution has neither been able to prove the safe custody of the parcels within the police station nor it has been able to prove the safe transmission of the parcels containing samples from the police station to the FSL.

8.In the recent past there is a judicial consensus that the prosecution has to prove safe transmission and safe custody of the contraband/samples and the heinousness of the charge and recovery of huge quantity would not absolve the prosecution of such duty. In the case1, it was held by the Apex Court that it is duty of the prosecution to establish each and every step from the stage of recovery, making of sample parcels, safe custody of sample parcels and transmission of the sample parcels to the concerned laboratory. Such chain has to be established by the “Javed Iqbal v/s the State” reported as 2023 SCMR 139

prosecution and if any link is missing in such like offences the benefit must be extended to the accused.

Similarly, in the case2 the Hon’ble Apex Court has held that neither the safe custody nor the safe transmission of the sealed sample parcels to the concerned Forensic Science Laboratory was established by the prosecution because neither the Moharrir nor the Constable who deposited the sample parcels in the concerned laboratory was produced.

Similarly, in the case3, the Hon’ble Apex Court has held that recovery was affected on 03.07.2015, whereas the sample parcels were received in the office of Forensic Science Laboratory on 15.07.2015 through a police constable, but the said constable was never produced by the prosecution to establish the safe transmission of the sample parcels to the concerned laboratory and there was no explanation as to why such evidence was withheld. Due to such defect on the part of the prosecution, it could not be held with any degree of certainty that the prosecution had succeeded in establishing its case against the accused person “Muhammad Hazir vs. The State” reported as 2023 SCMR “Lal Jan vs. The State” reported as 2023 SCMR 1009.

beyond any reasonable doubt. Likewise, in the case4, the Hon’ble Apex Court has held that although Jahangir Khan, H.C. (PW-1) claimed that complainant had handed over the sample parcels to him which he further handed over to Moharrar Investigation for safe custody for sending them to Forensic Science Laboratory, Peshawar. The said Moharrar Investigation who according to Jahangir Khan, H.C.

(PW-1) kept the sample parcels in safe custody was never produced by the prosecution. So, the safety of sample parcels was not established by the prosecution.

Ajmal Khan, Constable, who allegedly took the sample parcels to the concerned Laboratory was also not produced. In that eventuality, prosecution failed to establish safe custody and safe transmission of the sample parcels to the concerned quarter and the prosecution could not give any plausible explanation for not producing said important witnesses. The said defect in the prosecution case goes into the root of the case creating serious doubt regarding the narcotics and its recovery. In the case5, the Hon’ble Supreme Court has held that the most important thing we observe is “Muhammad Sohaib & another v/s The State” reported as

2022 SCMR 1006

“Ishaq v/s The State” reported as 2022 SCMR 1422.

that neither the safe custody nor the safe transmission of the sealed sample parcels to the concerned laboratory was established by the prosecution because neither the Moharrar nor the Constable concerned (FC- 3746) who deposited the said parcels in the concerned laboratory was produced. It is also a circumstance that recovery was effected on 17.07.2010 whereas the sample parcels were received in the said laboratory on 20.07.2010 and prosecution is silent as to where remained these sample parcels during this period, meaning thereby that the element of tampering with is quite apparent in this case. In the case of “Abdul Ghafoor v/s The State & another” reported as 2022 SCMR 819, the Hon’ble Apex Court has observed that heinousness of the charge and huge quantity of the alleged contraband, notwithstanding, the prosecution was under a bounden responsibility to drive home the charge by proving each limb of its case that essentially included production of the witness, tasked with the responsibility of transmitting the samples to the office of Chemical Examiner. Failure is devastatingly appalling with unredeemable consequences that cast away the entire case. Reliance could also be made on the following judgments;-

“Said Wazir and another v/s The State and others” reported as 2023 SCMR 1144.

“Zafar Khan and another v/s The State” reported as 2022

SCMR 864.

“Subhan Ullah v/s The State” reported as 2022 SCMR “Akhtar Gul v/s The State” reported as 2022 SCMR “Qaiser and another v/s The State” reported as 2022

SCMR 1641.

“Shah Zameen v/s The State” reported as 2022 SCMR

9.Another damaging aspect of this case is that though it is the case of prosecution as set by the Seizing Officer, P.W-3 in the Murasila, Ex.PA/1 that the events of alleged recovery has been recorded through a videography. The relevant extract of the Murasila being relevant is reproduced below:

"موقع کارروائی کی ويڈيو گرافی ٹارچ کی روشنی ميں سمارٹ موبائيل فون ميں بذريعہ جہاد

کرائی جا کر موبائيل فون سے ميموریI.C علی

14 برنگ کالا جا کر بند بپارسل نمبر2 GB کارڈ

ميں سر بمہر کر کے جملہ پارسل ہائے کے اندر

" کے رکهے گئےFK” ايک ايک عدد نمونہ اسم

"ہيں۔ however, the original record of this case is before us but the said USB has not been made part of it. The extract of register No. XIX would further show that though the said videography which was sealed in

parcel No. 14 was deposited with the Moharrir in the police station, however, as to when this USB/videography was deposited has not been mentioned. As stated herein above that on one hand the said USB is not part of the record and on the other, the prosecution has not been able to prove the contents of the said USB are in fact pertaining to the incident of alleged recovery from the appellant and that the same has not been tampered with. It is part of the record and as reflects from the contents of the register No. XIX as well that parcel No. 14 containing the USB of the videography was handed over to Asim Raza No. 52, for taking the same to the FSL. It is also interesting to note that the occurrence in this case had in fact taken place on 30.08.2024 but the said parcel No. 14 containing the said USB was handed over to Asim Raza for taking the same to the FSL after 58th day of the occurrence i.e. on 28.10.2024. The prosecution has not brought on record any explanation that as to why the said delay in sending the said USB containing the videography of the alleged recovery has been made. The aforesaid unreasonable and unexplained delay in sending the USB to the FSL gains more significance when it is seen and as stated

by the Moharrir of the police station, P.W-2 namely Qasid Ali that he handed over parcel No. 14 to Asim Raza No. 52 on 28.10.2024 for taking the same to the FIA Cyber Crime Wing, D.I.Khan, which he took there accordingly, but it was returned with the objection regarding the non-availability of the device/camera through which the recording of spot proceeding was made, however, when the same was sent to the FSL, it was returned with the observation that no opinion could be given in the absence of the device in which it was recorded. It is also part of the record that thereafter, the Investigating Officer has not bothered to send the same back along with the mobile in which it was recorded. The relevant admission in this regard made by the Investigating Officer namely Hamsher Ali, in his cross-examination being relevant is reproduced below:

“I have not taken the mobile phone through which videography was conducted on recovery memo. It is correct that no photographs of the recovery proceedings are available on case file. Self-stated that in the murasila too there is mentioned only videography therefore no photographs are available on file. The forensic report of videography is also not available on case file. Volunteered that it was returned with

objection by the FIA. It is correct that I have not sent it again for FSL analysis.”

It has also been admitted by the Investigating Officer of this case namely Hamsher Ali in his cross- examination that:

“I have not taken the mobile phone through which videography was conducted on recovery memo. It is correct that no photographs of the recovery proceedings are available on case file. The forensic report of photography is also not available on case file, volunteered that it was returned with objection by the FIA.”

He has further admitted as under:

“It is correct that I have not sent it again for FSL analysis.”

10.It is also an admitted position that though as per the statement of P.W-2 namely Qasid Ali, Moharrir of the police station as well as the contents of register No. XIX that parcel No. 14 containing USB was handed over to Asim Raza, however, as stated herein above that the said Asim Raza has not been produced by the prosecution. In view of the above, though the prosecution has alleged that the incident of alleged recovery of contraband from the appellant was

captured through videography, however, it has neither been able to bring on record the said USB nor it has been able to prove that the contents of the USB were not tampered nor the Investigating Officer has made any serious efforts to establish this aspect of the case and as such, benefit of the same is to be given to the appellant. In a case6, the Apex Court has held that some of the documentary evidence in defence produced by the appellant was recorded by automated information system which according to law is admissible under Article 164 of the Qanun-e- Shahadat Order, 1984 (P.O. No.10 of 1984) but in case of denial, law requires that such evidence generated through the system ibid must be proved in accordance with law. The Courts have been empowered to receive and make use of such evidence collected through modern technologies. Articles 46-A and 78-A of the Order ibid as well as the provisions of Electronic Transactions Ordinance (LI of 2002) provide procedure to receive and prove such evidence.

Reference in this regard can also be made to the case of Ishtiaq Ahmed Mirza v. Federation of Pakistan “Mian Khalid Pervez Vs. The State through Special Prosecutor, ANF and another, reported as 2021 SCMR 522.

(PLD 2019 SC 675) and Ali Raza v. State (2019 SCMR 1982). Similarly, in another case7, this Court has held that the Courts must also mention the bitter reality of Anti-Narcotics Force (ANF), Excise, Taxation and Narcotics Control and Customs Authorities, which are disciplined forces but at times also enrope innocent individuals in narcotics cases and; same is there with police of Khyber Pakhtunkhwa, against which complaints are pouring in regard to untrue implication of innocent persons in such cases. The Court reiterate that the only solution to assuage the allegations whether false or true, of planted recovery of narcotics lies in making recourse to the spirit of the order for use of videography right from seizing, when the recovery in the reported mode and manner, is effected and the investigation is also lasted with the belief that the same has actually been made from such persons or from the dwelling houses or from the vehicles so every recovery for proceeding of narcotics when especially the quantity of narcotics is considerably huge, the Seizing Officer shall make a video recording of the recovery proceedings, which shall “Imdad Ullah Vs. The State” reported as 2024 PCr.LJ 652

be made available before the Court. Suffice it to say that for any plausible reason if at all the Seizing Officer/ Investigation officer or Incharge of Police Station are unable to proceed in line with the shown technology based parameter, for any reason beyond their control, the reasons for the omission must be recorded in the investigation conducted/challan for appraisal of Courts.

11.Another aspect and serious omission in the prosecution case is that the contraband was recovered in the form of packets and out of them 10/10 grams samples were separated and the same were sealed in parcels No. 1 to 12 and then those parcels containing samples were sent to the FSL for their analysis, however, the FSL report (Ex.PZ) available on file would show that the samples were tested separately nor any individual report of each sample was prepared rather a joint report of parcel No. 1 to 12 was submitted, though this Court in the recent past has not appreciated such aspect of the case, however, during the course of arguments, learned counsel for the appellant produced a recent judgment of the Apex

Court rendered in a case8, where such collective analysis of parcels has been disapproved by the Supreme Court of Pakistan. Para No. 11 of the said judgment being relevant is reproduced below:

“11. We noticed another serious flaw in the prosecution's case regarding the forensic examination process. The FSL report Ex.PK/1 reflects that the collective analysis of twenty parcels of opium and three parcels of chars was given. Neither these samples were tested separately nor individual report of each sample prepared, which is violative of the principles laid down in Ameer Zeb s case (supra). In our view, the collective forensic report not only reduces the credibility of the chemical examination but also raises serious doubts regarding the representative nature of the samples sent for chemical analysis. We also noticed that the recovered substance was sealed with a monogram reading as MN, unrelated to any officer or witness involved in the case, a fact admitted by PW-2 and left unexplained by the prosecution.”

12.It is also part of the record and as admitted by the Investigation Officer that he has not placed on file the various daily diaries of the departure from the police station and then arrival to the police station nor he has placed on file the daily diaries of the carrier “Irshad Khan Vs. The State”, reported as 2026 SCMR 87 Supreme Court.

namely Rafi Ullah of his arrival, and such omission in the prosecution case gains more significance in this particular case, when it is seen and as discussed herein above that as per register No. XIX parcels No. 1 to 12 were handed over to one Asim Raza and as against this, one Rafi Ullah, P.W-1 has appeared and who has stated that he was handed over parcel No. 1 to 12 for taking the same to the FSL. The factum of departure and arrival of these daily diaries are the statutory requirement as contemplated under rule 22.48 and 22.49 of The Police Rules, 1934 and as such, absence of these daily diaries casts a serious doubt on the whole exercise of the prosecution as carried out in the present case. The Apex Court in the ibid case, has taken serious note of absence of such daily diaries in the prosecution case, para No. 9 of the ibid judgment being relevant is reproduced below:

“9. It is alleged by the prosecution that on the relevant day and time, the complainant, Akbar Ali, Inspector (PW-

1)along with other police contingents, had laid nakabandi at Bagla Road near Bagla Kandawo, 45/46 KMs away from the police station. According to the prosecution, the recovery of the contraband was witnessed by Fawad Khan, SHO police station, IDS (PW-2)

and Gohar Khan, SI (given up) as is reflected from the recovery/ seizure memo (Ex.PW1/1), but neither the seizing officer nor the investigating officer (PW-

4)bothered to place on record the daily diary report to show that the seizing officer along with other police officials had made a departure from the police station to the spot for nakabandi to prove their presence on the spot. Whenever a police official makes departure from the police station, he is essentially bound to record the reasons of his departure from the police station, as contemplated by Rules 22.48 and 22.49 of the Police Rules, 1934. Failure of the prosecution to produce in Court the daily diary of the police station showing departure of the police party to the spot would lead to the inference that the police party did not leave the police station and all the proceedings were carried out in the police station. Fair play demands that it should have been tendered in evidence to prove the fact that the seizing officer along with other police officials, left the police station to the spot.”

13.It is settled law since long that even a single doubt or single circumstance which creates doubt in the mind of a prudent man is sufficient for the acquittal of an accused person. In the case9, the “Saghir Ahmed vs. The State and others” reported as 2023

SCMR 241.

Hon’ble Apex Court has held that for the accused to be afforded the right of benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner.

Similarly, in the case10, the Hon’ble Apex Court has held that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable;

trustworthy and reliable evidence. Any doubt arising in prosecution's case is to be resolved in favour of the accused and burden of proof is always on prosecution to prove its case beyond reasonable shadow of doubt.

Likewise, in the case11, the Hon’ble Apex Court has held that Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence and any doubt “Bashir Muhammd Khan v/s The State” reported as 2022

SCMR 986

“Muhammad Samiullah vs. The State” reported as 2022

SCMR 998.

arising in prosecution's case is to be resolved in favour of the accused. In the case12, the Hon’ble Apex Court has reiterated the same rational by observing that in these circumstances, a dent in the prosecution's case has been created, benefit of which must be given to the appellant. It is a settled law that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence. Reliance could also be made on the following judgments; -

“Amir Muhammad Khan v/s The State” reported as 2023 SCMR 566.

“Sarfaraz and another v/s The State” reported as

2023 SCMR 670.

“Muhammad Ashraf alias Nikka v/s The State reported as 2022 SCMR 1328.

“Kashif Ali alias Kalu v/s The State and another reported as 2022 SCMR 1515 “Tajamal Hussain Shah v/s The State and another reported as 2022 SCMR 1567.

“Khalid Mehmood alias Khaloo v/s The State” reported as 2022 SCMR 1148,

14.For what has been discussed above, we found that the prosecution has failed to prove its case against the appellant beyond reasonable doubt, therefore, his conviction cannot be maintained. Resultantly, while extending him the benefit of the doubt this appeal is allowed and the impugned order/ judgment of conviction and sentence recorded by the learned trial Court dated 26.11.2025 is set aside and consequently, the appellant is acquitted of the charges levelled against him.

Above are the detail reasons of our short order of even date.

Announced.

21.05.2026 Sd/- (Sher Hassan)

CHIEF JUSTICE

Sd/-

JUDGE

(D.B) Hon’ble Mr. Justice S.M Attique Shah, C.J & Hon’ble Mr. Justice Muhammad Ijaz Khan, J.