IN THE HIGH COURT OF SINDH, CIRCUIT
COURT, LARKANA
Criminal Appeal No. D- 32 of 2020.
Present:
Mr. Justice Amjad Ali Sahito
Mr. Justice Jan Ali Junejo.
Appellants : Naveed-ul-Rehman & another through M/S Muhammad Shabir Rajput and Ishrat Ali Lohar, Advocates.
M/S Muhammad Shabir Rajput and Ishrat Ali Lohar, Advocates for appellants.
Respondent : The State through
Mr. Muhammad Noonari, D.P.G
Date
of hearing : 08.05.2025
Date of judgment : 22.05.2025
J U D G M E N T
AMJAD ALI SAHITO- J:- Through this criminal appeal, the appellants Naveed-ul-Rehman and Samiullah have impugned the judgment dated 17.9.2020 passed by learned 1st Additional Sessions Judge/MCTC, Kamber, in Special Case No. 05 of 2020 re: State v. Naveed-ul Rehman and another arisen out of Crime No. 96/2019 registered at P.S Qubo Saeed Khan under section 9(c) of CNS Act, 1997 whereby both appellants were convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to life imprisonment with fine of Rs.10,00,000/- each, and in default of payment, to suffer Simple Imprisonment for ten years.
2. Briefly, the prosecution case, as emerging from the FIR lodged on 18.12.2019 at about 1730 hours, that on 18.12.2019 SIP Attaullah Mirani, Incharge P.S Qubo Saeed Khan a/w his subordinate staff while patrolling received spy information regarding transportation of charas by two persons in a white GLI car through PP Rabi Pul to Shahdadkot Road, on which they reached at the pointed place, started checking and at about 1500 hours stopped the pointed car and apprehended the present appellants at PP Rabi Pul. PC Nisar Ahmed Brohi and Pc Shahid Hussain Mahessar were associated as mashirs and on checking allegedly 200 kg charas, in shape of 200 packets were recovered, which were hidden in secret cavities of white GLI car (Reg. No. BHX-331). Each packet weighed one K.G and out of them 100 packets were white-yellow colour while 100 packets were black and red colour. Each packet contained two pieces. 100/100 grams were separated from each packet and sealed separately for sample. On personal search of accused certain cash, CNIC and original documents of car were recovered. After preparation of memo of arrest and recovery accused alongwith case property were brought at P.S and FIR was lodged to the above effect.
3. After registration of FIR the investigation followed in which complainant/author of FIR himself acted as I.O also and accused/appellants were sent up to stand trial before competent Court.
4. Formal charge against the accused was framed at Exh.03, to which they pleaded not guilty and claimed for trial vide their pleas at Exh.3/A to 3-B.
5. The prosecution examined two witnesses viz. PW-1 SIP Attaullah Mirani (Complainant and Investigating Officer) and PW-2 PC Nisar Ahmed Brohi (Mashir/Eye witness). Thereafter, prosecution side was closed.
6. Statements of accused under section 342 Cr.P.C, were recorded in which they denied the allegations but neither opted to depose under section 340(2) Cr.P.C nor led any defense evidence.
7. On conclusion of trial, and after hearing both parties, learned trial Court convicted and sentenced the appellants under impugned judgment dated 17.9.2020, as stated above which is challenged by appellants in this appeal.
8. Learned counsel for the appellants contended that the entire prosecution case is predicated solely upon the testimony of two official witnesses, namely the complainant who also acted as the Investigating Officer (I.O.) and PW-2, PC Nisar Ahmed Brohi, who acted as the Mashir and purported eyewitness. It was argued that there was a complete absence of any independent mashir or corroborative witness, despite the alleged recovery having been effected in broad daylight on a public road. The dual role assumed by the complainant, acting both as the complainant and the I.O., was submitted to be a serious irregularity that compromises the impartiality and credibility of the investigation.
9. Moreover, the prosecution failed to establish the safe custody of the case property and the secure transmission of the sealed samples to the Chemical Examiner, as neither the in-charge of the Malkhana nor the official responsible for conveying the samples to the Chemical Examiner were examined. This lapse, it was argued, casts grave doubt on the integrity of the chain of custody and the veracity of the prosecution's narrative an omission fatal to the case. No private person was joined as a mashir, notwithstanding the fact that the alleged arrest took place on a busy thoroughfare.
10. The learned counsel further submitted that although a positive Chemical Examiner’s report (Exh.09) was placed on record, no independent evidence was produced to corroborate the report or to establish the maintenance of safe custody and an unbroken chain of custody of the contraband. The absence of examination of the Malkhana in-charge and the official who delivered the sample to the Chemical Examiner renders the said report unreliable. It is a settled principle of law that in cases attracting capital punishment or life imprisonment, strict compliance with procedural safeguards, particularly relating to the safe custody and preservation of seized contraband is mandatory. In the present case, it was alleged that 200 kilograms of narcotics were recovered in the form of 200 packets, each containing one kilograms, and that 100 grams from each packet were allegedly taken and sealed at the scene. However, PW-2 testified that the large parcels were, in fact, prepared at the police station, thereby raising serious doubts about the authenticity of the recovery proceedings.
11. It was further submitted that the co-mashir of the recovery memo was not produced, which is a mandatory requirement as per the judgment reported in 2011 YLR 2261. Additionally, PW-2, PC Nisar Ahmed, sign his statement under Section 161 Cr.P.C., and this serious omission remained unnoticed by the learned trial court. As held in PLD 2011 SC 554, such a statement is legally unreliable. The learned counsel for the appellants also submitted that the case suffers from significant investigative defects. Notably, the owner of the vehicle allegedly used in the transportation of the contraband was not associated with the investigation. Furthermore, the case property was recorded as weighing 200 kilograms even after the drawing of samples, which raises serious concerns regarding the accuracy and reliability of the weight and handling of the contraband.
12. The contraband in question was never exhibited or marked as an article in evidence, which constitutes a grave illegality. It was further argued that the Chemical Examiner's report cannot be treated as conclusive evidence, as it does not comply with Rule 6 of the CNS (Government Analysts) Rules, 2001, compliance of which has been held to be mandatory by the Hon’ble Supreme Court in 2018 SCMR 2039.
13. In view of the above deficiencies, learned counsel submitted that the prosecution has failed to establish its case against the appellants beyond reasonable doubt. Accordingly, the impugned judgment is not sustainable in law and is liable to be set aside, with the appellants being entitled to acquittal.
14. Conversely, the learned Deputy Prosecutor General supported the impugned judgment, asserting that the appellants were apprehended at the scene while transporting a substantial quantity of contraband, namely 200 kilograms of charas, which was found concealed within secret cavities of a vehicle driven by the appellants. The learned D.P.G. argued that such a significant recovery could not have been foisted by the police, especially in the absence of any prior enmity or motive for false implication. Lastly, prayed for dismissal of the instant appeal.
15. We have heard learned counsel for the respective parties and perused the material brought on record.
16. The prosecution's case is that on 18.12.2019, acting on a tip-off, the appellants were apprehended, and 200 packets of charas were recovered from concealed compartments of a vehicle driven by appellant Naveed-ul-Rehman, while appellant Samiullah was seated in the rear seat of said vehicle. The seized contraband was weighed and found to be 200 kilograms in total. A sample of 100 grams from each packet was separated for chemical analysis, and the remaining quantity was sealed at the spot in accordance with legal procedure.
17. Upon reassessment of the evidence and record, it has been observed that prosecution witness No. 1 (PW-1), SIP Attaullah, who is also the investigating officer of the case, provided testimony regarding the recovery of the narcotics (charas) and outlined the investigatory measures undertaken by him. Following the arrest of the appellants, both the accused persons and the recovered contraband were brought to the concerned police station. The seized charas was placed in secure custody within the police station’s malkhana, and relevant entries were duly recorded during the course of the investigation. On the following day, i.e., 19.12.2019, the recovered charas was dispatched to the Chemical Laboratory, Sukkur at Rohri, through police constable No. 1714 Kaleemullah, vide RC No. 215 dated 19.12.2019. A chemical examination report was subsequently received in positive. Consequently, the investigating officer submitted a police report under Section 173 Cr.P.C. (Challan) against both accused persons before the court of competent jurisdiction. The investigating officer also produced supporting documents marked as Exhibits 4/A to 4/G.
18. In corroboration of the testimony of PW-1, the prosecution examined PW-2 Nisar Ahmed, who essentially reiterated the same facts and fully supported the version advanced by the complainant. Thereafter, the prosecution closed its side of the evidence through a statement dated 10.09.2020, recorded at Exhibit 06. The complainant further asserted that the recovered charas was forwarded to the Chemical Laboratory through PC Kaleemullah.
19. It is pertinent to underscore that the evidentiary value of the Chemical Examiner’s Report is inherently contingent upon the integrity of the chain of custody. It is the obligation of the prosecution to establish and maintain an unbroken and secure chain of custody, particularly in view of the pivotal role played by the Chemical Examiner’s Report under the Control of Narcotic Substances Act, 1997. The only means by which the authenticity of the recovered substance’s arrival at the Chemical Examiner's office can be ensured is through demonstrable proof of a safe and uninterrupted chain of custody.
20. Upon examination of the record, it is evident that the prosecution has failed to establish that the recovered sample parcels (charas) were kept in secure custody at the police station (MalKhana). The prosecution did not produce the Moharar responsible for maintaining the MalKhana, which is a critical lapse. During cross-examination, the complainant/investigating officer (I.O.) of the case conceded that “It is correct to suggest that after reaching the police station, the recovered charas was kept in safe custody in the MalKhana of the police station through the WHC, whose statement was also recorded by me. It is correct to suggest that the WHC has not been cited as a witness in the challan of this case.”
21. Furthermore, the prosecution failed to examine Police Constable Kaleemullah, who was reportedly responsible for the transportation of the case property to the office of the Chemical Examiner. As a result, the prosecution has not substantiated either the secure transmission of the sample parcel to the relevant laboratory or its safe custody while in the MalKhana. There is a conspicuous absence of any justification on record for the non-production of this essential evidence, despite the legal requirement for its establishment. The Hon’ble Supreme Court of Pakistan, in following precedents commencing from a judgment reported in 2012 and in several subsequent decisions, has consistently held that failure on the part of the prosecution to prove the safe custody and secure transmission of recovered narcotics warrants the acquittal of the accused.
(1) Muhammad Hashim v. The State, PLD 2004 SC 856, (2) Amjad Ali v. The state, 2012 SCMR 577, (3) Ikramullah and others v. The State, 2015 SCMR 1002, (4) Taimoor Khan and another v. The State and another, 2016 SCMR 621, (5) The State through Regional Director ANF v. Imam Bakhsh and others, 2018 SCMR 2039, (6) Mst. Razia Sultana v. The State and another, 2019 SCMR 1300, (7) Khair-ul-Bashar v. The State, 2019 SCMR 930, (8) Zahir Shah alias Shat v. The State, 2019 SCMR 2004, (9) Unreported Judgment dated 10.03.2025 passed by the Honourable Supreme Court of Pakistan in Criminal Petition No.1187/2021 re-Jeehand v. The State, (10) Mst. Sakina Ramzan v. The Sate, 2021 SCMR 451, (11) Qaiser Khan v. The State, 2021 SMR 363, (12) Abdul Ghafoor v. The State and another, 2022 SCMR 819, (13) Ishaq v. The State, 2022 SCMR 1422, (14) Muhammad Shoaib and another v. The State, 2022 SCMR 1006, (15) Subhanullah v. The State, 2022 SCMR 1052, (16) Rustam Ali v. The State, 2023 PCr.LJ Note 112, (17) Said Wazir and another v. The State, 2023 SCMR 1144, (18) Javed Iqbal v. The State, 2023 SCMR 139, (19) Muhammad Hazir v. The State, 2023 SCMR 986, (20) Asif Ali and another v. The State, 2024 SCMR 1408 and (21)Sarfraz Ahmed v. The State, 2024 SCMR 1571.
22. It is a settled proposition of law that the prosecution is bound to prove its case beyond a shadow of a doubt. If a reasonable doubt arises in the prosecution case, the benefit of same must be extended to the accused not as a grace or concession, but as a matter of right. Likewise, it is also a well-embedded principle of criminal justice that it is not necessary that there must be so many doubts in the prosecution case if there is a reasonable doubt arising out of the prosecution evidence pricking the judicious mind, the same would be considered sufficient for giving its benefit to the accused. In this respect, reliance can be placed upon the case of MOHAMMAD MANSHA V. THE STATE (2018 SCMR 772);-
“4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted.” Reliance in this behalf can be made upon the cases of TariqueParvez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Mohammad Akram v. The State (2009 SCMR 230) and Mohammad Zaman v. The State (2014 SCMR 749).”
23. In view of what has been discussed above the criminal appeals No.D- 32 of 2020 filed by appellants Naveed-ul-Rehman and Samiullah is allowed. The impugned judgment dated 17.09.2020 passed by learned First Additional Session Judge/MCT, Kambar at Kambar in Special Case No.05 of 2020 (State v. Naveed-ul-Rehman & others) being the outcome of Crime No. 96/2019 registered at P.S Qubo Saeed Khan under section 9 (C) of CNS, Act is set aside and appellants Naveed-ul-Rehman and Samiullah are acquitted of the charge by extending them benefit of the doubt. They are in jail. They shall be released forthwith if not required in any other custody case.
24. Before parting with this judgment, it is considered appropriate to identify the root causes contributing to the consistent failure of the prosecution in securing convictions in narcotics-related cases. A recurring issue observed is the flawed investigative process and deficient prosecutorial conduct, which routinely result in acquittals of drug traffickers. The primary and most significant reason for such acquittals is the prosecution's failure to establish the chain of safe custody, despite the apex Court of the country having elaborated and reiterated this critical concept in a series of authoritative judgments, as already discussed hereinabove.
25. The maintenance of the chain of safe custody is a fundamental procedural requirement for the successful prosecution of an accused in narcotics cases. It is essential to satisfy the Court that the narcotic substance allegedly recovered from the accused is the same substance that was sent to the forensic/Chemical laboratory for analysis and subsequently produced before the trial court. This necessitates the continuous and documented possession of the case property by authorized personnel from the time of its recovery at the crime scene or from the accused, through its deposit in the designated storehouse (MalKhana), to the transmission of its samples to the laboratory, and finally, the presentation of the remaining bulk quantity before the trial court. This entire process is known in legal parlance as the “chain of safe custody.”
26. The Control of Narcotic Substances Act, 1997 (CNS Act) prescribes stringent penal provisions for individuals involved in the possession, trafficking, and sale of narcotics. Despite the non-bailable nature of major offences under the Act, it has been consistently observed that offenders are frequently acquitted on technical grounds most notably, the prosecution's failure to establish the integrity of the chain of custody. Such acquittals, particularly in serious narcotics offences, not only undermine public confidence in the criminal justice system but also significantly hinder the national effort to eradicate the scourge of drug abuse and trafficking from society.
27. The responsibility for maintaining the chain of safe custody lies squarely with the investigating agency, while the prosecution bears the duty of presenting such evidence in court. Both institutions must discharge their respective roles diligently and professionally to ensure the conviction of the accused. The Investigating Officer is legally obliged to collect all relevant evidence and forward it to the prosecution, which is responsible for producing the evidence in court in a manner that proves the guilt of the accused beyond reasonable doubt. Any lapse in either the collection or proper presentation of evidence inevitably results in the failure of the prosecution’s case. It has been observed that, in some instances, although the investigation report submitted under Section 173, Cr.P.C., is complete and contains sufficient material to establish the chain of custody, the same is not effectively presented during trial proceedings. Accordingly, it is imperative that both investigating agencies and prosecuting authorities execute their duties with due diligence and professional competence, so as to fulfill the object and spirit of the law. The conviction of an accused cannot be achieved unless there is synergy and mutual reinforcement between the investigation and prosecution functions under the legal framework.
28. Furthermore, it is necessary to dispel a common misconception regarding the role of the office of the Senior Superintendent of Police (SSP). The SSP’s office is not to be viewed merely as a conduit for mechanically forwarding case files to the courts. Rather, it carries significant supervisory, administrative, and legal responsibilities in the conduct of criminal investigations and the enforcement of law in Pakistan.
The role of the Senior Superintendent of Police/Investegation (SSP) is defined the Code of Criminal Procedure, 1898 (CrPC), the Police Rules, 1934, and various departmental standing orders.
29. The SSP is duty-bound to exercise continuous oversight over all Investigating Officers (“IOs”), ensuring that investigations are completed expeditiously, in accordance with law, and in strict conformity with the procedures prescribed in the Code of Criminal Procedure, 1898 (“CrPC”) and the Police Rules, 1934. Before any case is forwarded to a court of competent jurisdiction, the SSP must: (a). scrutinise the investigative record and assess whether the collected evidence sustains the proposed charge(s); (b). satisfy himself that due process has been observed throughout; and (c). endorse, in writing, his considered opinion on every final report submitted under section 173 CrPC. Where deficiencies, procedural lapses, or evidentiary gaps are detected, the SSP is empowered to: (a). order further investigation; (b). direct the rectification of procedural defects; or (c). return the case for re-investigation.
Obligation to Avert Miscarriages of Justice.
30. The SSP must prevent the abuse of investigative powers by ensuring
that false, fabricated, or malicious prosecutions are not placed before the
courts. In the discharge of this duty, he shall exercise sound judgment and
discretion, taking remedial measures whenever necessary. The SSP shall liaise
with the prosecution branch to verify that every case file is legally tenable,
fully documented, and trial-ready, thereby avoiding unnecessary burdens on the
judiciary and safeguarding the rights of both the accused and the complainant.
Record-Keeping,
Monitoring, and Corrective Action
31. Pursuant to Rule 25.17 of the Police Rules, 1934, the SSP
shall maintain a running notebook to record the progress of each investigation,
monitor timelines, and address undue delay. In instances where acquittals
result from defective or negligent investigation, the SSP shall initiate
appropriate penal and departmental proceedings against the responsible
officers. The SSP shall also ensure strict compliance with Rule 24.7 of
the Police Rules, 1934, regarding the procedure for cancellation of First Information
Reports (“FIRs”). Under section 168 Cr.P.C., every subordinate police officer
is required, upon completion of an investigation, to report the result to the
officer-in-charge of the police station; the SSP must verify such reports and
ensure their accuracy.
Legal Character of the SSP’s Office.
32. The SSP’s office constitutes a pivotal supervisory institution
within Pakistan’s criminal-justice architecture. To characterise it as a mere “post
office” is a fundamental misapprehension that erodes the integrity of the
investigative process and undermines public confidence in the rule of law. In
addition to this, Rule 25.17 of the Police Rules 1934 relates to the
supervision by gazette officers. The said Rule is reproduced as under;
“25. 17. Supervision by gazetted officers.-
(1) In all important cases gazetted officers are required personally to supervise the investigation so far as is possible and when necessary to visit the scene of the offence.
(2) A record of investigations by gazetted officers shall be kept in the prescribed column the register of cognizable offences and an abstract thereof inspection Statement and in the Annual Provincial Statement shall be shown in the quarterly
(3) Every Gazetted Officer shall maintain a running notebook for each Police Station in two parts- Part I dealing with general reported crime in Form 25.17 (3) (a) and Part II with cases under the security sections of the Criminal Procedure Code in Form 25.17 (3) (b). Part I shall be further subdivided into three parts relating no (1) burglaries, (2) cattle thefts, and (3) other crimes. It this part shall be entered the salient points of the first information report and case diaries. Reasons for junior officers taking up cases when senior are available should be most carefully checked.
All unnecessary delays in the course of investigations, in challaning successful cases in submitting final reports in untraced cases should be carefully observed and stopped. Deputy Inspectors-General shall call for these note-books at their inspections and insist on their being intelligently used for the purpose of efficient supervision of investigations.
(4) Gazetted officers shall interest themselves in the challans of cases in their charge as they come in and discuss them with the prosecuting '[Officer) and if possible, with the officers who investigated them; and shall keep in touch with the proceeding in Court.
(5) Every gazetted officer in headquarters should see daily the English register (27.35) of cognizable offences, with special reference to columns 14 to 17 in regard to cases in his charge, and he should bring to the notice of the District Magistrate, through the proper channel, any unnecessary delays, that occur in dealing with cases in Courts, instances in which witnesses come up with challans and are sent back unheard and delays in framing charges hearing arguments or pronouncing judgments
(6) Gazetted officers should follow closely the progress of cases in their charge through the Court and they should ascertain, as soon as possible, the grounds for all discharges and acquittals. If the grounds for the discharges or acquittals appear to be unreasonable, they should at once bring the cases prominently to the notice of the District Magistrate through the Superintendent of Police.”
Supervisory Duties of Gazetted Officers under Police Rules, 1934.
33. This Rule
unequivocally imposes a binding obligation upon gazetted officers, such as the
Superintendent of Police, to exercise close and continuous supervision over
investigations pertaining to cognizable offences. It is incumbent upon such
officers to ensure that investigations are conducted diligently, in accordance
with law, and that final reports are properly and timely submitted to the
competent judicial forum. The responsibilities of a SSP/gazetted officer
include direct and personal supervision of significant and sensitive cases,
which may also require physical inspection of the crime scene, where warranted.
They are required to maintain comprehensive records of ongoing investigations
through a running notebook, as mandated by the Rules. This notebook must
contain key particulars of each case, including those relating to general
criminal offences and security-related matters. The purpose of maintaining such
a record is to monitor investigative progress, prevent undue delays, and ensure
the timely submission of final reports under Section 173 of the Code of
Criminal Procedure, 1898.
34. SSP/Gazetted officers are further required to review challans (police reports forwarded to court) and engage in consultations with both the investigating officers and prosecuting officers. This supervisory function is critical to the expeditious and effective progression of criminal cases through the judicial process. Gazetted officers must also address and rectify procedural issues that may result in unwarranted delays, discharges, or acquittals. Their overarching mandate is to ensure that investigations are conducted professionally, records are properly maintained, and that any hindrances to the judicial process are promptly identified and resolved.
Role of the Superintendent of Police in Case Cancellations.
35. The significance of the role and responsibility of the Superintendent of Police is further reinforced by Rule 24.7 of the Police Rules, 1934, which provides that any final report recommending the cancellation of a criminal case shall be transmitted to the Magistrate having jurisdiction by the Superintendent of Police himself. This Rule explicitly stipulates that any police report concluding with a negative outcome i.e., recommending cancellation must necessarily be routed through the Superintendent of Police. Such a requirement ensures an added layer of scrutiny and accountability in the decision-making process relating to case disposal. In the case of Ehsan ullah Chadhry reported as PLD 2023 Lahore 233 it has been observed by the Lahore High Court as under;
“6. Rule 24.7 of the Police Rules, 1934 (hereinafter 'the Rules') prescribes a self-explanatory procedure for submitting a cancellation report of a criminal case. It is specified that if after collecting information and evidence the Investigating Officer is of the opinion that the report is maliciously false or false owing to a mistake of law or fact or to be non-cognizable or matter for a civil suit, the Superintendent shall send the first information report and any other papers on record in the case with the final report to a Magistrate having jurisdiction. After considering those documents, the Magistrate will pass the final order. For better comprehension Rule 24.7 of the Rules has been reproduced hereinafter: -
"24.7. Unless the investigation of a case is transferred to another police station or district, no first information report can be cancelled without the orders of a Magistrate of the 1st class.
When information or other intelligence is recorded under section 154, Criminal Procedure Code, and, after investigation, is found to be maliciously false or false owing to mistake of law or fact or to be non-cognizable or matter for a civil suit, the Superintendent shall send the first information report and any other papers on record in the case with the final report to a Magistrate having jurisdiction, and being a Magistrate of the first class, for orders of cancellation. On receipt of such an order the officer in charge of the police station shall cancel the first information report cancelling the case with number and date of order. He shall then return the original order to the Superintendent's office to be filed with the record of the case."
This Rule provides not only the mode of submission of the cancellation report of a criminal case but also the grounds on which such a report should be prepared by the investigating officer. Reliance in this regard can be placed on IRFAN AKBAR KHAN (2021 PCr.LJ 1038) and MUHAMMAD DAIEM SHATTARI (2007 YLR 2038 Karachi).
7. The words used in Rule 24.7 'Superintendent shall send' clearly indicate that it is mandatory and requires due compliance. Consequently, it becomes abundantly clear that no subjective, as well as objective, discretion has been left with the investigating agency to deviate from the above-referred Rule and submit the cancellation report of a criminal case through SHO or even DSP/SDPO.”
36. Relevantly, in the case of Nadeem Akhtar vs The State reported as PLJ 2022 Cr.C 492, it was observed by the Lahore High Court as under;
“18. Investigation is substratum of every criminal case, therefore any flaw therein, eventually, results in acquittal of culprits. Defective investigation in criminal cases should not be overlooked by the high ups of investigating agencies, responsible for supervision of such process. In presence of a self-explanatory procedure to maintain the chain of safe custody, non-compliance of the same is a criminal act which should be dealt with accordingly. It is high time to curb the pitfalls of defective investigations to ensure the smooth operation of our criminal justice system to bring the actual culprits to book.
19. District Police Officers, in their concerned districts, shall take serious notice of acquittals resulted due to defective investigations and proceed against the delinquent investigators under the relevant provisions of law, which include penal as well as departmental action. Accountability is the glue that bonds commitment to result and where there is no accountability there is no responsibility.”
37. In the case of Haider Ali & another vs DPO Chakwal & others reported as 2015 SCMR 1724, the Honourable Supreme Court Pakistan, inter alia, issued following directions for proper investigation;
1. Investigation Initiation: The Court emphasized that while the registration of FIRs is mandatory, the initiation of investigation is not automatic. An investigation should only begin when the police have reasonable grounds to suspect the commission of an offence based on the information received.
2. Arrest Protocol: The Court directed that police should not arrest the accused immediately after registering the FIR unless there is sufficient evidence supporting the arrest. This is consistent with the principles laid out in Muhammad Bashir's case (PLD 2007 SC 539), where it was clarified that arrests should not be made arbitrarily.
3. Police Training: The Court stressed the importance of proper training for police officers, particularly in investigative procedures and securing crime scenes. It noted that the police often lack the necessary skills to gather and preserve evidence properly, such as securing fingerprints or collecting forensic materials from crime scenes.
4. Investigation Guidelines: The Court noted that there were no clear guidelines available to police officers to help them make informed decisions regarding investigations and arrests. This lack of structure contributes to defective investigations and inefficient use of police discretion.
5. Developing Specialized Investigators: The Court called for the development of specialized investigation officers and for improving forensic facilities to ensure that investigations are handled with the required expertise.
6. Accountability and Efficiency: The Court also highlighted that police inefficiency and incompetency often stemmed from a lack of accountability. Police officers must be held responsible for delays and errors in the investigative process, and the supervision of investigations by senior officers (such as gazetted officers) should be actively enforced to ensure the quality and progress of investigation.
38. Reverting to narcotic cases. It is a matter of serious concern that, in numerous instances, the failure of proper investigation and, at times, deficient prosecution has resulted in the acquittal of accused persons in narcotics-related cases. The procedure for establishing the chain of safe custody of recovered narcotic substances is neither complex nor burdensome. It is, in fact, a straightforward and standardized process. However, regrettably, this procedure is frequently disregarded or inadequately followed, thereby undermining the prosecution's case and contributing to the failure to secure convictions against individuals involved in drug-related offences.
39. There is an urgent need to enhance awareness among the officials of the investigating agencies regarding the proper protocols for maintaining the chain of safe custody of narcotic substances, as well as its critical significance in the successful prosecution of such cases. Though often perceived as a routine and elementary requirement, this procedure plays a pivotal role in determining the outcome of narcotics trials. Its neglect or mishandling can have serious consequences, including the acquittal of drug traffickers.
40. The Hon’ble Supreme Court of Pakistan has, through various judgments, provided clear guidelines regarding the procedures for arrest and recovery, particularly emphasizing the importance of spot recovery.
Spot Recovery:
41. Numerous provisions under the Code of Criminal Procedure, 1898 (Section 157), the Police Rules (Rules 25.10 and 22.16), and Rule 4 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 (as they stood prior to amendment), underscore the imperative that recovery proceedings be conducted at the place of occurrence to ensure transparency and prevent false implication. The principal objective of preparing a recovery memo at the spot duly signed by the attesting witnesses is to guarantee that the recovery is carried out honestly and fairly in the presence of impartial witnesses, thereby reducing the possibility of fabrication or wrongful implication.
Video and Photography.
42. The Hon’ble Supreme Court has in the recent past has directed “In narcotics cases, use of video recording and photographs by police and member of Anti-Narcotics Force”. 2018 SCMR 1233, 2011 SCMR 1127, and 2024 SCMR 934.
Effective Investigation
43. In the case of Jeehand v. The State (Criminal Petition No. 1187/2021 the Hon’ble Supreme Court has given enlightening guidelines for effective investigation and strict compliance which is otherwise mandatory as per Article 189 of the Constitution of Islamic Republic of Pakistan (the Constitution) can ensure successful prosecution of the narcotic cases. The Para's No. 7 to 10 are reproduced from the illuminating Judgment for the sake of ready reference.
7. Before parting with the judgment in hand, we have painfully observed in a number of cases that the legislation had introduced the Act of 1997 to curb the menace of drug abuse, prohibit possession of narcotic substances and rehabilitate victims of drug abuse, however, the Anti-Narcotics Force a n d Police Authorities have failed to adhere to the provisions of the Act of 1997. The law enforcing and investigating agencies are only dealing with the peddlers and if investigation is carried out in accordance with the provisions of the Act of 1997, it would bring to justice the whole chain i.e., cultivator/manufacturer, peddler, seller and drug abuser, and would serve as deterrent factor in the society. The manner in which narcotics cases are being investigated favours the real culprits and only drug peddlers are caught and sent to jail, Nobody dares to investigate the giants who derive profits out of such illicit drug/narcotic deals. Their assets are never investigated. We are afraid that the two ends i.e., drug dealer, cultivator, manufacturer and the drug/narcotic abusers are never held accountable. This would never have been the intention of the legislature while enacting the Act of 1997. The law enforcing agencies particularly the Anti-Narcotics Force, has failed to adhere to the provisions of the Act of 1997 as well as the SOPs adopted by the force for investigation of criminal cases, which are very comprehensive and cover every aspect of a criminal case registered under the Act of 1997. In most of the cases, the provisions of the Act of 1997, the rules made thereunder and the SOPs adopted by the force, to the extent of tracing assets and discovering the complete chain of culprits, have not been complied with. As a result of such incomplete investigation, the society will face the menace of narcotics/ drugs abuse forever. If the State prefers to penalize citizens for possessing fruit of the forbidden tree and opts not to cut that forbidden tree and holding its beneficiaries accountable, the outcome would be absurd. Similarly, not investigating the main culprits/ sources of narcotic substances in a criminal case would grant them a license to violate the Act of 1997 and cause irreparable damage to the society.
8. When a criminal case is registered on the allegation of possession of narcotic substances, the accused is arrested at the spot. Then the line of investigation (without prejudice to the Act of 1997 and the rules made thereunder) should be:
(i) to investigate from whom the recovered narcotic substance was received/purchased by the accused;(ii) to whom the delivery of narcotic substance was intended;(iii) to investigate the purpose/ultimate utilization for the recovered narcotic substance;(iv) to trace the drug abusers (for their rehabilitation);(v) who are deriving financial benefits and the use/ purpose of the delivered finance/assets;(vi) who are the persons engaged in the business in contravention of the Act of 1997 (starting from cultivator/ manufacturer to the end abuser); and(vii) which are the assets so derived by persons engaged in dealing with narcotics.
9. The Act of 1997 provides for
a comprehensive mechanism to deal with all matters so as to curb the menace of
drug abuse, which in fact is a great threat to the society and adversely
affecting the citizens. It is mandatory for the investigating agencies to
conduct investigation on true lines in accordance with the spirit of the Act of
1997.
10. Office is directed to transmit copies of this judgment to the Secretary,
Ministry of Interior and Narcotics Control, Islamabad, Director-General,
Anti-Narcotics Force, Inspector Generals of Police, Punjab, Baluchistan, Sindh,
Khyber Pakhtunkhwa, Islamabad Capital Territory, Attorney General for Pakistan,
Advocate Generals and Prosecutor Generals for information, compliance and
circulation amongst the relevant quarters. The Director-General ANF, shall
depute a monitoring unit or assign responsibility to a team of officers who
shall supervise and recommend disciplinary proceeding against the investigating
officers for conducting investigations against the spirit of the Act of 1997.
In the case of Waqar Ali v. The State (2017 YLR 878) Balochistan High Court had observed in Para No 16;
16. It is by now, the need of the time for the high-ups of the Police Department to establish a separate section in the Police Department under the command of Senior Officers to keep sharp eyes on the Investigating Officers and Chemical Examiners; to make them answerable in each case separately, if the acquittal is recorded due to their negligence or fault and in order to unearth the truth that the lacunas left in the prosecution case was due to their negligence or they were in league with the accused party and if any Officer is found guilty, necessary departmental or criminal proceedings be initiated against him and if such practice is once commenced, no Officer will dare to repeat the same, otherwise the fate of the prosecution cases will be the same as in the case in hand and the Courts will be blamed for acquitting the culprits. Such practices must, be stopped without any delay. Besides, the Police Department may also arrange training courses or through Circulars to update all the Investigating Officers about the latest pronouncements and guidelines of the superior Courts so that the investigation of the cases may be carried out in accordance with law.
Fair Investigation.
44. Fair trial is fundamental right as enshrined in Article 10A of the Constitution and there is no gainsaying that fair investigation is part of the fair trial. Keeping in view the Importance of such fundamental right, reference to relevant provisions contained 'in Police Rules, 1934, is necessary which read as under:
25.2 (1)-----.
(2)-------.
(3) It is the duty of an investigation officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person.
45. Section 26 of the CNS Act, provides punishment for vexatious entry, search, seizure and arrest, which may extend to three years along with mandatory fine upto Rs.25,000/-
46. The above provisions shout loudly that these are safe-guard against the false Implication. Question arises if, as a matter of routine, the complainant wears the cap of the investigating officer, his such dual role will tantamount to deny right of fair investigation to an accused. Doctrine of bias would operate in such situation as a complainant cum investigating officer would never act against himself being naturally interested in the success of his case. His biasness being complainant would create hindrance and stand in his way to act as an independent and impartial investigating officer, thus, dual role of an empowered officer would set provisions contained in section 26 at naught and turn them redundant. In the present case the Complainant is also investigation officer.
47. Certain critical procedural steps, which are mandatory for preserving the integrity of the chain of custody and ensuring the lawful conviction of an accused, particularly in narcotics-related offences, are enumerated hereunder to facilitate a thorough and effective investigation as well as a successful prosecution.
• Any police officer setting up a picket, conducting a raid on spy information or otherwise or leaving police station for patrolling must enter in the relevant police register his departure and arrival. Incorporation of arrival and departure by the police officer in Register No. 2 maintained under Police Rules, 1934 is mandatory. The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty must be incorporated in the aforesaid register. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by him personally by signature or seal. Every police officer of or above the rank of head constable, when returning from duty other than an investigation in which case diaries are submitted, shall have an entry made in the daily diary by the station clerk or his assistant showing the places he has visited and the duties performed by him during his absence from the police station. Such entries provide corroboration qua the alleged recovery of narcotics and arrest of accused and absence of such entries in the relevant register creates doubt which goes in favour of accused.
• The parcels of sample and rest of the bulk quantity (case property) shall be secured with sealing wax bearing the seal impression of the responsible/relevant police officer and shall be properly marked and labeled. Thereafter such parcels shall be sent to be kept in safe custody in store room as prescribed under Rules. Entries regarding depositing and removal of said case property subsequently shall be entered in police register No. 19 as provided in Rules.
• Statements of police officials, recovering the narcotics from accused, making parcels of case property, transporting the same from crime scene to store room to be kept in safe custody, receiving it and keeping it in store room, handing over the sample parcels for further transmission to forensic/Chemical lab and depositing those parcel in forensic/Chemical lab, must be recorded under Section 161, Cr.P.C. and they must be produced as witnesses during trial to prove the fact that narcotics substance as produced in forensic/Chemical lab and before the Court is same which was recovered from the accused at crime scene.
• While transmitting the sample parcels to forensic lab the process provided in rules must be adhered to qua obtaining road certificate from Register No. 21 of police station as mentioned in aforementioned rules. Copy of such road certificate should also be made part of case file.
• The police official who transmits the complaint to police station for registration of FIR and official who jots down the crime report under Section 154, Cr.P.C. in relevant register should be produced before the Court as witnesses in order to eliminate all the doubts qua the culpability of a drug paddler.
• Prosecutor must ensure that no prosecution witness, who is necessary to prove the chain of safe custody, is left out. Production of these witnesses before the trial Court is eventually responsibility of the prosecutor. It is mandatory upon him to perform his functions and exercise his powers fairly, honestly, with due diligence in the public interest and to uphold the justice.
• It has also been observed by this Court that sometimes crucial incriminatory piece of evidence is not put to an accused, which ultimately results in his acquittal. Trial Court should be very cautious and vigilant, while recording statement of accused as envisaged under Section 342, Cr.P.C. and should make sure that every piece of evidence available on the record is put to the accused.
• In addition to aforementioned steps, Punjab Forensic Science Agency issued directions in year 2012 to establish valid chain of custody of recovered narcotics, which unfortunately could not be followed strictly. These direction must be followed too and same are reproduced hereafter:-
For a valid chain of custody, all items of evidence must be labeled with the following information:
• Name of victim or suspect.
• Case number.
• Type of specimen (i.e., Narcotic Plant material, narcotic medicines, Injections, cigarettes, used syringes, Chars, capsules, opium).
• Amount of sample.
• Time and date of collection.
• Names, stamp, designation of person collecting the sample.
Finally, the sample collected must be sealed with molten wax seal to document specimen integrity. A reference seal sample must be attached along with the packed sample.
Alternatively, all of the samples collected for a given case may be placed in a tamper-evident container labeled with the case number and name.
48. In addition to the foregoing, and in compliance with the directives issued by the Hon’ble Supreme Court of Pakistan in Criminal Petition No. 1402-L of 2016 titled State v. Abdul Haq, a Standard Operating Procedure (SOP) was promulgated in the year 2017. The primary objective of the SOP was to ensure the preservation and integrity of the chain of safe custody in narcotics-related cases. This protocol was duly disseminated among Investigating Officers throughout the Province. Regrettably, however, the said SOP has remained largely unimplemented and was not adhered to in practice. It is with considerable concern that we observe the existence of a robust legal framework intended to protect the integrity of the chain of custody, yet the actual impediment lies in its enforcement. The failure to operationalize these well-articulated procedures reflects deeper, systemic deficiencies within the criminal justice system.
49. It is a well-settled principle of criminal jurisprudence that investigation forms the foundational substratum of any criminal proceeding. Hence, any irregularity or deficiency in the investigative process inevitably compromises the prosecution’s case and often results in the acquittal of the accused. Defective investigations cannot be condoned or overlooked by senior supervisory officers tasked with overseeing investigative processes. Where a clear and explicit procedure exists for maintaining the chain of safe custody, willful non-compliance therewith must be deemed a culpable dereliction of duty and should attract appropriate legal and departmental action. Immediate and resolute measures are required to rectify persistent shortcomings in investigative practices to preserve the integrity of the justice system and to ensure the effective prosecution of offenders.
50. Senior Superintendents of Police (SSPs) within their respective jurisdictions are hereby directed to take strict cognizance of all acquittals arising from defective investigations. They shall initiate appropriate proceedings against negligent or delinquent Investigating Officers under the relevant laws, which may include penal sanctions as well as departmental disciplinary action. Institutional accountability must be the cornerstone of law enforcement administration; absent such accountability, adherence to legal duties and attainment of just outcomes cannot be assured.
51. In light of the foregoing, the office is directed to transmit a copy of this judgment to the Chief Secretary, Sindh, with direction to place the same before the Chief Minister, Sindh, for information and compliance. Copies shall also be forwarded to the Inspector General of Police, Sindh; the Secretary, Excise and Taxation; and the Director General, Anti-Narcotics Force. These authorities shall ensure wide circulation of this judgment within the relevant tiers/SSP of their respective departments and take steps to secure its implementation in letter and spirit.
52. Furthermore, the Inspector General of Police, Sindh, is directed to develop a centralized mechanism preferably through the creation of a web-based platform integrated with police stations, the prosecution department, the Excise and Taxation Department, and connected directly with the office of the Inspector General. The Additional Inspector General (Legal) shall be responsible for monitoring the progress of such cases. In the event of an acquittal, appropriate action shall be initiated against the concerned SSP, Station House Officer (SHO), Investigating Officer (IO), and any police witnesses who fail to substantiate their prior statements recorded under Section 161 of the Code of Criminal Procedure, 1898.
JUDGE
JUDGE