Abdul Karim and another Vs The State, etc

Judgment Sheet

(Judicial Department)

Abdul Karim and another v.

The State etc.

JUDGMENT

For appellant(s):

Rehman. Advocates

For State: Mr ib

Date of hearing: 18.02.2025 * *rF* *

MI]HAMMAD TARfO AFRIDI. J.- This appeal under section 24 of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 ("the Act"), is directed against the judgment, dated 10.06.2024, hancled down by the Special Court of Adclitional Sessions Judge, Karak, whereby, the appellants Abdul Karim and Akhter Ullah were convicted under section 9(d) of the Act and sentenced to rigorous imprisonment for life, with fine of Rs.5,00,000/- each and in default thereof to furttrer undergo trvelve (12) months simple imprisonment and benefit of section 382-8 Cr.P.C. was extended to the convicts I appellants.

2.In brevity, the facts of the case are that on 29.04.2023 at 09:00 hours, Abdul Saeed Khan, SHO, police Station Latamber, Karak, received information regarding the trafficking of a huge quantity of narcotics from Karak to Bannu. pursuant

to that, he set up a barricade on Karak-Bannu Road near Kashu bridge. Meanwhile, a carry van of white colour bearing Registration No.LEDTzzgthrnjab approached from the Karak side. Upon spotting the police, the driver attempted to make a U-turn with the intention of escaping, but the vehicle was swiftly intercepted, demonstrating practical wisdom, and two individuals in the vehicle were made to disembark and a subsequent body search yielded nothing. The driver identified himself as Abdul Karim and the person seated beside the driver on the front seat identified himself as Akhtar Ullah, residents of District Hangu. A thorough search of the vehicle was carried out and cardboard of the dickey's door was removed that yielded 12packets of charas, weighingatotal of 14,887 grams, which were seized and documented via recovery memo Ex.PC.

The accused were arrested as per their arrest card Ex.PW-211.

The murasila Ex.PA was drafted and sent to the police station through constable Tahir No.l83/DFC, leading to the registration of FIR No.207, dated 29.04.2023, under section 9(d) of the Act, at Latamber police station in Karak.

3.After the completion of the investigation, the report (challan) under section 173 cr.P.C. was submitted against the appellants. They were provided with copies of statements and documents within the meaning of section 265-c cr.p.c. charge was framed against the appellants, to which they pleaded not guilty, opting for trial. The prosecution, in support of the

charge, examined as many as 08 wiuresses. After the prosecution closed its evidence, the appellants were examined under section 342 CI.P.C., wherein they professed innocence and did not opt to be examined on oath under section 340(2) Cr.P.C. or to produce defence evidence. After hearing the arguments, the appellants were adjudged guilty by the trial court, leading to their conviction and sentence, as aforesaid.

Hence, this appeal.

4.Arguments heard and record perused.

5.There is no denial of the fact that in cases involving the recovery of narcotic substances, the prosecution shall not only prove the factum of recovery, but also the safe custody and secure transmission of the narcotic substances to the FSL through a well established chain of custody. This being the well developed judicial standard, we would first determine as to whether the prosecution has succeeded in establishing the factum of recovery or otherwise.

6.In this context, the testimonies provided by the seizing officer and the police officials accompanying him at the time of recovery are of paramount importance. The seizing officer Abdul Saeed, SHO, was examined as PW-02, while the constables Shafi Ullah No.937 and Muhammad Tahir No.l83, who accompanied him, were examined as PW-05 and PW-06.

As the seizing officer conducted the process of search, seizure, and arrest, and the aforesaid constables witnessed this process,

therefore, they are expected to be well aware of each and every material fact pertaining to the said process.

7.These witnesses were cross-examined qua the number of officials accompanying the seizing officer at the time of recovery. In reply, the seizing officer stated that there were 3 I 4 police officials, while PW-05 stated that only 05 police officials accompanied the seizing officer on the fateful day. The former further stated that they left the police station for patrol duty at 06:20 AM, while the latter disclosed that they had been on patrol duty since 09:00 AM. The former maintained that they first visited Surdag and then directly rushed to the spot, however, the latter remained adamant in asserting that they conducted patrols in different areas.

8.The seizing officer stated that they departed from the police station for patrol duty around 06:20 AM and initially visited Surdag, spending approximately 10 to 20 minutes there, before proceeding to the spot at around 08:45 AM. On the contrary, PW-05 stated that their visit to Surdag occurred around 09:00 AM, contradicting the seizing officer's earlier statement, because at that time, the police patrol would have been in Surdag and not at the place of recovery.

9.The seizing officer claimed to have videotaped the search, seizure, and arrest process, however, he conceded that the accused is not visible in the footage. Consequently, the purported video evidence lacks sufficient probative value to

establish the fact of recovery against the accused with exactitude.

10.Upon examining Muhammad Tahir's testimony (PW-03), a marginal witness to the recovery memo Ex.PC, it becomes apparent that while he did witness the process of search, seizure, and arrest, he remained oblivious of several crucial details. For instance, he failed to disclose the number of vehicles checked by the police patrol prior to the arrest of the accused. He testified that he saw the recovered contraband in a stab / rectangular shape and of single colour, but he was unable to speciff the exact colour of the contraband. Furthermore, Muhammad Tahir failed to provide any details about the time ? spent weighing the contraband. He also remained unaware of who stitched or sealed the parcels, despite being present when this occurred. Initially, he stated that the seizing officer personally lit the fire to melt the chemicals I wax for sealing the parcels, however, he was unable to speciff the source used to ignite the fire. Additionally, Muhammad Tahir failed to provide any information about the time he returned to the police station with the I.O. from the spot. He also did not disclose when his statement under section 161 Cr.P.C. was recorded by the I.O.

11.Moreover, Muhammad Tahir's testimony was also marred by self-contradictions, which fuither undermines its reliability. During examination-in-chief, he clearly stated that the SHO packed and sealed the samples into parcels No.l to 12,

with the remaining quantity of contraband being separately packed and sealed in parcel No.13. However, during cross- examination, he contradicted his earlier statement that he could not recall the number of parcels prepared at the spot. Initially, the wihess claimed that the SHO himself conducted the videography, but he later altered his statement asserting that the videography was actually done by a constable. When asked to provide the name of the constable, who allegedly conducted the videography, he was unable to do so.

12.It is a well settled principle of the administration of criminal justice that evidence tainted with contradictions, inconsistencies, and discrepancies to such an extent that it raises doubts in the judicial mind regarding the guilt of an accused cannot be accepted for recording or upholding a conviction. The fundamental principle of criminal jurisprudence dictates that the prosecution bears the sole responsibility of proving the charges beyond a reasonable doubt. In the instant case, major contradictions, inconsistencies, and discrepancies are evident in the testimonies of the prosecution witnesses.

Consequently, it cannot be concluded that the prosecution has successfully established the fact of recovery beyond a reasonable doubt. Consequently, the prosecution has failed to prove the recovery. The FSL report, standing alone, is insufficient to establish the guilt of the accused.

13.The prosecution failed to produce the carrY van, from which the charas was atlegedly recovered, as evidence during the trial. No explanation was provided for this omission.

Furthermore, no driving license was recovered from the appellants and the prosecution did not establish ownership of the vehicle. Notably, the registration number of the vehicle was not investigated to determine ownership. These discrepancies collectively give rise to reasonable doubt.

14.In these circumstances, we have reached the inescapable conclusion that the prosecution has been unable to prove the charge against the appellants through compelling evidence beyond a reasonable doubt. It is a well settled principle that not many doubts are required, rather a single doubt would suffice for acquittal, if it reasonably pricks the judicial mind as to the guilt of the accused. In this regard, reliance is placed on Muhammad Imtiaz Bai v. State (2024 SCMR 1191), Abdul Oadeer v, State (2024 SCMR 1146), and Sardaran Bibi v.

State Q024 SCMR 1116). Similarly, rn Muhammad Naz and others v. The State ond others (2024 SCMR 1839), the Supreme Court ruled:

It is an established principle of law that to extend the benefit of the doubt it is not necessary that there should be so many circumstances. If one circumstance is sufficient to discharge and bring suspicion in the mind of the Court that the prosecution has faded up the evidence to procure conviction then the Court can come fonvard for the rescue of the accused persons as held by this Court in Daniel Boyd (Muslim Name Saifullah) and another v. The State (L992 SCMR 196); Gul Dast Khan v. The

State (2009 SCMR 431); Muhammad Ashraf alias Acchu (' v. The State (2019 SCMR 652); Abdul Jabbar and another v. The State Q0l9 SCMR 129); Mst. Asia Bibi v. The State and others @LD 2019 SC 64) and Muhammad Imran v. The State (2020 SCMR 857).

15.Not being persuaded that there was any sound basis for adjudging the appellants guilty, we unanimously hold that the trial Court failed to appreciate the evidence in its true perspective and thus erred in handing down the convictions and sentences to the appellants, resulting in a miscarriage ofjustice.

This warrants the interference of this Court.

16.In the result, we allow this appeal, set aside the impugned judgment, and acquit the appellants of the charges by extending them the benefit of doubt. They shall be immediately released, with the caveat that their detention is not otherwise warranted.

17.The foregoing are the reasons for our short order of even date.

Announced

(Ghafoor Zaman)

l,l/-

J DGE

1lt\ aJ

(D.8.)

Hon'ble Mr. Justice Kamran Hayat Miankhel Hon'ble Mr. Justice Muhammad Tariq Afridi