2026 P Cr. L J 505

 2026 P Cr. L J 505

[Lahore (Bahawalpur Bench)]

Before Tariq Saleem Sheikh and Raja Ghazanfar Ali Khan, JJ

SAKINA BIBI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 177 of 2024, decided on 7th May, 2025.

(a) Control of Narcotic Substances Act (XXV of 1997)---

----S.9(1), Sr.Nos.(3)(c) & (e)---Possession of narcotic substances---

Appreciation of evidence---Benefit of doubt---Safe custody and safe

transmission of the recovered substance to the laboratory not

proved---Chain of custody of contraband doubtful---Prosecution case

was that 2824-grams chars in three packets and 6154-grams opium

in seven packets were recovered from the possession of accused-

appellant---In the instant case, the Investigating Officer did not

mention anywhere in his statement that when he handed over the

case property to Moharrer of the police station for safe custody, any

entry was made in Register No.XIX or not---Similarly, the Moharrer

of the police station did not utter a single word that any entry was

made regarding keeping of the case property i.e. 20 sealed parcels

i.e. 14 of opium and six of the charas along with black coloured

purse, travelling bag of black colour, two towels as well as one lady's

suit of green colour and a mobile phone in Register No.XIX prior to

keeping the same in Malkhana---Neither the Investigating Officer

nor the Moharrer of the police station produced theattested copy of

Register No.XIX or attested copy of any road certificate before the

Court---Similarly neither the Moharrer nor the Investigating Officer

uttered a single word that any such entry was made in Register

No.XIX or in any Roznamcha about handing and taking over of the

case property on 12.04.2023 for its transmission to Saddar Malkhana

intact---Similarly, neither the Moharrer nor the Investigating Officer

uttered any word about handing over of the sample parcels i.e.

seven sealed parcels said to contain opium and three sealed parcels

said to contain charas to Investigating Officer for their transmission

to Forensic Science Agency intact---Such non-mentioning of handing

and taking over of the case property as well as sample parcels in

relevant Register had made the whole prosecution case doubtful---

Appeal against conviction was allowed, in circumstances. Jeehand v. The State through Prosecutor General Baluchistan 2025

SCMR 923 rel.

(b) Control of Narcotic Substances Act (XXV of 1997)---

----S.9(1), Sr.Nos.(3)(c) & (e)---Possession of narcotic substances---

Appreciation of evidence---Benefit of doubt---Road certificate not

procedure---Prosecution case was that 2824-grams chars in three

packets and 6154-grams opium in seven packets were recovered

from the possession of accused-appellant---Neither the Investigating

Officer nor Moharrer of the police station or the complainant

uttered a single word about road certificate issued by the

Investigating Officer from the DPO office at the time of transmission

of sample parcels to office of Forensic Science Agency---Non-

mentioning of any road certificate in statements as well as non-

production of any such road certificate has made the prosecution

case further dubious and doubtful---Complaint had been abruptly

concluded without mentioning the venue of its preparation, the time

of its conclusion and no fact about the sending of the said complaint

to the police station through Police Constable was mentioned---Non-

mentioning of said particulars at the bottom of complaint further

made the whole prosecution case dubious so far as any recovery of

narcotics from the possession of the present appellant at a chowk

was concerned---Appeal against conviction was allowed, in

circumstances.

(c) Administration of justice---

----When law requires a thing to be done in a particular manner, the

same must be done accordingly---If the prescribed procedure was

not followed, it would be presumed that the same had not been done

in accordance with law.

Ammad Yousaf v. The State and another PLD 2024 SC 273 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---Slightest circumstance would be

sufficient to extend benefit of doubt in favour of accused.

Ahmed Ali and another v. The State 2023 SCMR 781 rel.

Syed Zeeshan Haider for Appellant.

Rao Muhammad Riaz Khan, DPG with Khadim ASI for the State.

Date of hearing: 7th May, 2025.

JUDGMENT

RAJA GHAZANFAR ALI KHAN, J.---This criminal appeal is directed

against judgment dated 21.03.2024 passed by learned Additional

Sessions Judge, Bahawalnagar whereby he after holding trial in case

FIR No.264 dated 11.04.2023 registered under section 9(3)(1) 7 of CNSA,

1997 at Police Station City B-Division, Bahawalnagar convicted and

sentenced Mst.Sakina Bibi (appellant) as under:-

Under Section 9(1)(3)(c) CNSA, 1997: Ten years R.I with fine of

Rs.1,00,000/- and in default of payment of fine to further

undergo six months S.I.

Under Section 9(1)(5)(e) CNSA, 1997: Fifteen years R.I with fine of

Rs.5,00,000/- and in default of payment of fine to further

undergo six months S.I.

Both the sentences were ordered to run concurrently. The benefit of

Section 382-B of Cr.P.C was also extended in favour of the

appellant.

2. Brief facts of the case as per First Information Report (Exh.PD) are

that complainant Muhammad Adeel ASI (PW.4) along with his other

police officials was present at Gaoshala Chowk in connection with

patrolling duty where he received spy information that one lady who

had a black colour bag besides one lady s handbag of black colour on

her shoulder after alighting from bus at Bahawali Chowk was waiting

for rickshaw. She had narcotics in her possession and if immediate

raid was conducted, the narcotics could be recovered. The

complainant Muhammad Adeel ASI (PW.4) along with his police

companions reached Bahawali Chowk and on the pointing out of

informer, apprehended the appellant through lady constable Aqsa

Ashraf 355/LC (PW.3). On inquiry she disclosed her name as Sakina

Bibi wife of Muhammad Javed resident of Kot Momen Tehsil Bhalwal,

District Sargodha. On checking of the bag containing clothes, one towel

of orange colour, 7 packets of opium wrapped in polyethene along

with one lady stitched suit of green colour printed flowers with

embroidery work were recovered. The opium was weighed and it was

found to be 6154 grams. Samples were collected from every packet of

opium. The samples as well as the remaining opium were separately

sealed and on all these sample parcels stamp bearing Alphabet M.A

was affixed. Similarly on checking of the black coloured handbag, one

towel of yellow colour, three packets were recovered out of which two

packets were wrapped in yellow colour tape and one packet in white

coloured polyethene. Charas weighing total 2824 grams was recovered

from all the three packets. From each packet of charas samples were

separated, the sample parcels and the remaining bulk were separated

into sealed parcels after affixing stamp having Alphabet M.A. All the

parcels along with bag containing clothes, two towels and one lady suit were taken into police custody in presence of witnesses namely

Muhammad Siddique ASI, Muhammad Khalid ASI, lady constable Aqsa

Ashraf 355/LC (PW.3) through recovery memo. (Exh.PA) and witnesses

put their signatures on the said recovery memo.

3. On completion of investigation, a report under section 173 Cr.P.C

was submitted in the court. The learned trial court formally charge

sheeted the appellant on 06.09.2023, to which she pleaded not guilty

and claimed trial. The prosecution in order to prove its case against

the appellant produced five witnesses including Muhammad Adeel ASI

(PW.4) who being complainant drafted complaint (Exh.PC) and also

recovered opium and charas from the possession of the appellant,

Aqsa Ashraf 355/LC (PW.3) who is recovery witness, whereas

Muhammad Saleem SI (PW.5) investigated the case.

4. After the conclusion of prosecution evidence, the learned trial

court also examined the appellant under Section 342, Cr.P.C. The

appellant did not opt to make statement under Section 340(2) of Cr.P.C.

however produced Muhammad Aslam as DW.1, Ghulam Hassan, DW-2

and Muhammad Javed as DW.3 in his defence evidence. On the

conclusion of trial, the appellant was convicted and sentenced as

afore-stated, hence, the instant criminal appeal.

5. We have heard learned counsel for the appellant as well as

learned Deputy Prosecutor General Punjab and gone through the

record with their able assistance.

6. The scrutiny of record reveals that the whole prosecution case is

hinging upon the recovery of 2824 grams charas as well as 6154 grams

opium. The prosecution in order to prove the said recovery of charas as

well as opium produced lady constable Aqsa Ashraf 355/LC as PW.3 who

also narrated the same facts given in the complaint (Exh.PC) as well as

the FIR (Exh.PD). She is the attesting witness of recovery memo.

(Exh.PA). Similarly, the second witness produced by the prosecution in

order to prove the recovery of charas and opium from the possession of

the appellant is Muhammad Adeel ASI (PW.4) who also narrated the

same facts given in complaint (Exh.PC) as well as in FIR (Exh.PD). He is

also the complainant of this case. Muhammad Adeel (PW.4) in his

examination-in-chief stated that he drafted the complaint (Exh.PC) and

sent the same to police station through Muhammad Aslam constable

335/C for registration of FIR. He also deposed before the court in his

examination-in-chief that when Muhammad Saleem SI/I.O (PW.5)

reached the spot along with Muhammad Aslam 335/C he handed over to

him the custody of accused, the sealed parcels of charas and opium, two

towels, two bags and a lady s suit as well as the recovery memos. He

also deposed that on his pointing out the investigating officer prepared

unscaled site plan of the place of recovery (Exh.PE). Although both the witnesses of the recovery remained consistent and confidence inspiring

so far as the narration of contents of complaint Exh.PC and FIR Exh.PD

are concerned, yet if we scrutinize the statement of the investigating

officer Muhammad Saleem SI who appeared as PW.5 he did not mention

anywhere in his statement that when he handed over the case property

to Moharrer of the police station for safe custody, any entry was made

in Register No.XIX or not. Similarly, the Moharrer of the police station

namely Shahid Imran 1110/HC (PW.2) did not utter a single word that

any entry was made regarding keeping of the case property i.e. 20

sealed parcels i.e. 14 of opium and six of the charas along with black

coloured purse, travelling bag of black colour, two towels as well as one

lady s suit of green colour and a mobile phone in register No.XIX prior

to keeping the same in Malkhana. Neither the investigating officer nor

the Moharrer of the police station produced the attested copy of register

No.XIX or attested copy of any road certificate before the court.

Similarly neither the Moharrer Shahid Imran 1110/HC (PW.2) nor the

investigating officer uttered a single word that any such entry was

made in register No.XIX or in any Roznamcha about handing and taking

over of the case property on 12.04.2023 for its transmission to Saddar

Malkhana intact. Similarly, neither the Moharrer nor the investigating

officer uttered any word about handing over of the sample parcels i.e.

seven sealed parcels said to contain opium and three sealed parcels said

to contain charas to Muhammad Saleem SI/I.O for their transmission to

PFSA, Lahore intact. This non-mentioning of handing and taking over of

the case property as well as sample parcels in relevant register has

made the whole prosecution case doubtful so far as the chain of safe

custody of the narcotics is concerned. Reliance in this regard is placed

on case titled as Jeehand v. The State through Prosecutor General

Baluchistan in a 2025 SCMR 923 wherein the august Supreme Court of

Pakistan has held as under:-

5. After hearing the learned counsel for the parties and perusal of the

record, we have straightforward observed that the prosecution has

failed to prove its case against the petitioner beyond the shadow of

doubt for the following reasons:

i) No documentary evidence whatsoever has been brought on

record. Neither entry of Register No.XIX was tendered in

evidence nor Road Certificate as contemplated by rule 22.70,

Form 22.70 and Rule 22.72, Form 10.17 of Police Rules, 1934. So,

this sole contour of the case creates dent in the case of the

prosecution. This Court in the case of Asif Ali v. State (2024 SCMR

1408) observed as under:

Rule 22.70 of the Police Rules, 1934 ( Police Rules ) mandates that

Register No.XIX shall be maintained in Form 22.70 of the Police Rules in the police station wherein, with the exception of articles

already included in Register No.XVI, every article placed in the

store room (Malkhana) shall be entered and the removal of any

such article shall also be noted in the appropriate column.

7. Now coming towards production of any road certificate before the

Court, neither the Investigating Officer Muhammad Saleem SI (PW.5) nor

Moharrer of the police station Shahid Imran 1110/HC (PW.2) or the

complainant Muhammad Adeel ASI (PW.4) uttered a single word about

road certificate got issued by the investigating officer from the DPO office

at the time of transmission of sample parcels to office of PFSA. It is a well

settled principle of criminal jurisprudence arising out of maxim

Communi observantia non est recedendum that when law required a

thing to be done in a particular manner, the same must be done

accordingly and if the prescribed procedure was not followed, it would

be presumed that the same had not been done in accordance with law.

Guidance can be sought from the case law reported as Ammad Yousaf v.

The State and another (PLD 2024 SC 273). The non-mentioning of any

road certificate in statements as well as non-production of any such road

certificate has made the prosecution case further dubious and doubtful.

8. We find it necessary to mention here that in this case the

complaint (Exh.PC) has been abruptly concluded without mentioning

the venue of its preparation, the time of its conclusion and no fact

about the sending of the said complaint (Exh.PC) to the police station

through Muhammad Aslam 335/C is mentioned. The non-mentioning of

these particulars at the bottom of Exh.PC further makes the whole

prosecution case dubious so far as any recovery of narcotics from the

possession of the present appellant at Bahawali Chowk is concerned.

9. For what has been discussed above, we are of the considered view

that the prosecution has failed to prove the guilt of the appellant

beyond any shadow of doubt. It is settled by now that for earning

acquittal, the accused is not obliged to establish a number of

circumstances creating doubt but even a slightest circumstance is

sufficient to extend him the benefit of doubt. Reliance in this regard

can be placed on case titled as Ahmed Ali and another v. The State

(2023 SCMR 781). Consequently, while giving benefit of doubt in favour

of Sakina Bibi (appellant) Criminal Appeal No.177-2024/BWP is

allowed; her convictions and sentences are set-aside and she stands

acquitted of the charges. She is in judicial custody; be released

forthwith if not required to be detained in any other case.

JK/S-86/L Appeal allowed.