Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2024 SHC 3554. In this matter between Spl. Cr. A. 41/2024 (D.B.) Sindh High Court, Bench at Sukkur - Akbar Hussain Afridi & another (Appellant) and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.

Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.

Full Judgment Text & Judicial Ruling

COURT: Sindh High Court CASE NO: Spl. Cr. A. 41/2024 (D.B.) Sindh High Court, Bench at Sukkur CITATION: 2025 SHC SUK 3554 PARTIES: Akbar Hussain Afridi & another (Appellant) ORDER DATE: 24-DEC-25 BENCH: Hon'ble Mr. Justice Khalid Hussain Shahani(Author) A.F.R: Yes ------------------------------------------------------------ Page 1 of 25

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR Special Cr. Appeal No. D-41 of 2024

BEFORE: Mr. Justice Amjad Ali Bohio, J. Mr. Justice Khalid Hussain Shahani, J.

Appellants : 1. Akbar Hussain S/o Sardar Akbar, Afridi 2. Sirajuddin S/o Sawab Gul by caste Afridi, Through Mr. Saifullah Afridi, Advocate

The State : Through Mr. Shafi Muhammad Mahar, DPG

Date of hearing : 16.12.2025 Date of Judgment : 24.12.2025

J U D G M E N T KHALID HUSSAIN SHAHANI, J. – Through this criminal appeal, the appellants Akbar Hussain and Sirajuddin assail the judgment dated 23.02.2024 passed by the learned III rd Additional Sessions Judge/MCTC - II/Special Judge (CNS), Sukkur in Special Case No.53 of 2023, whereby they were convicted under Section 9(3) (e) of the Control of Narcotic Substances Act, 1997 and sentenced to imprisonment for life with a fine of Rs. 800,000/- each, and in default to suffer simple imprisonment for one year. 2. The prosecution case, as set out in FIR No.01 of 2023 registered on 01.01.2023 at 11:30 p.m at Excise Police Station Rohri Circle, is that on the same day at about 04:00 p.m., Excise Inspector Qamardin Siyal, accompanied by his staff Excise Deputy Hubdar Ali and Excise Constables Moula Bux, Zubair Ahmed, Imran Khan, Niaz Hussain and Huzoor Bux left the police station under roznamcha entry No. 01 in official vehicle GSB-531 for patrol and checking of narcotics offences and reached the Excise Check Post near Arore University on National Highway, Rohri. At about 6:30 p.m., an 18-wheeler oil tanker bearing registration No. C-9176 (Kohat), driven by one person with another seated beside him, arrived from the Punjab side and

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was signalled to stop. The driver disclos ed his name as Akbar Hussain S/o Sardar Akbar Afridi, resident of Dara Adam Khail, District Peshawar, and claimed that the tanker was empty, while the person seated beside him introduced himself as Sirajuddin S/o Sawab Gul Afridi, resident of Matni, District Peshawar, and stated that he was the cleaner of the tanker. 3. According to the prosecution, as no private persons were allegedly available, Excise Constables Moula Bux and Zubair Ahmed were appointed as mashirs, and after apprising the accused of departm ental formalities, their personal search and the search of the tanker were carried out in their presence. From Akbar Hussain’s personal search, cash of Rs. 3,100/-, an original CNIC, an original driving licence and a Nokia keypad mobile phone with SIM were recovered, while from Sirajuddin, cash of Rs. 400/- and an original CNIC were allegedly secured. On searching the tanker, a wooden cavity was allegedly found behind the driver’s seat containing 100 colourful plastic packets; each packet, on being opened, contained two slabs of charas, and each packet was found to weigh one kilogram on a computerized scale, making a total of 100 kilograms. From each packet, 500 grams were separated, wrapped and sealed as 100 samples for chemical analysis with the signatures of the Excise Inspector and both mashirs, while the remaining slabs were sealed in two plastic sacks containing 50 packets each, also bearing their signatures. 4. During further search, the original registration book was recovered from the switch board of the tanker, showing the owner as Saleem Nawaz S/o Saeed Ghani, resident of Kohat, and reflecting the particulars of the vehicle as Model 2011, Engine No. FE6123372CP, Chassis No. CDA411P-00741 and Registration No. C -9176 (Kohat). On further questioning, both accused allegedly disclosed t hat one Zeenat Ali S/o Ali

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Janan, resident of Attock, was the owner of the charas and had handed over the contraband to them for onward delivery at a place to be intimated later. A memo of arrest and recovery was prepared on the spot, read over to the mashirs, who allegedly acknowledged its correctness and signed it along with the Excise Inspector. The accused and case property were then taken to the Excise Police Station Rohri Circle, where arrival entry No. 02 was made at 11:20 p.m., followed by lodging o f the FIR at 11:30 p.m., and the case property was deposited in the Malkhana vide entry No.09 of Register No.19. 5. Upon completion of investigation, Excise Inspector Qamardin Siyal submitted a challan before the learned Judicial Magistrate -I, Rohri, showing Akbar Hussain and Sirajuddin in judicial custody and placing accused Zeenat Ali and Saleem Nawaz in column of absconders. The learned Magistrate, after completing necessary formalities, declaring the absconding accused as proclaimed offenders and supplying requisite documents to the present appellants under Section 241-A, Cr.P.C. at Exh. 04, transmitted the case to the Court of learned Sessions Judge/Special Judge (CNS), Sukkur, from where it was made over to the trial Court for disposal in accordance with law. 6. The learned trial Court framed a formal charge against both appellants at Exh. 05, to which they pleaded not guilty and claimed trial. In support of the charge, the prosecution examined PW -01 Excise Inspector Qamardin Siyal at Exh. 06, who produced de parture and arrival entries, the memo of arrest and recovery, FIR, Malkhana Register entry, road certificate, relevant correspondence with Motor Registration Authority Kohat and District Police Officer Attock, and the Chemical Examiner’s report as Exh. 06/ A to 06/L. PW-02 Excise Constable Moula Bux Bhutto was examined at Exh. 07, who broadly supported PW-01; thereafter, the learned DPP for the State closed the prosecution evidence vide Exh. 08.

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7. The statements of both appellants under Section 342, Cr.P.C. were recorded at Exh. 09 and 10 on 26.08.2023, wherein they denied the allegations, asserted their innocence and alleged that charas had been planted upon them and the documents fabricated by excise officials. Appellant Akbar Hussain stated that on 30.12.2022 at about 12:30 p.m. he had parked his oil tanker at Qutubdin Rest Area on N-5 Motorway for lunch and prayers when a car containing excise officials arrived and inquired about Saleem Nawaz, whereupon he informed that one Noor Rehman had purchased the tank er from Saleem Nawaz; he alleged that he was then taken towards Sadiqabad, unlawfully confined for two days at a school and subsequently implicated in the present case, and sought restoration of Rs. 45,000/ -, his CNIC, driving licence, mobile phone with SI M and the tanker, allegedly seized illegally. Appellant Sirajuddin stated that the same day at about 3:00 p.m. he, with his friends Younis and Ayaz, while travelling from Peshawar to Karachi in a car No. 024, had stopped at Qutubdin Rest Area and, on emerg ing from the washroom, was apprehended by 3 or 4 excise officials, taken towards Punjab, kept in unlawful confinement for two days at a school, and later came to know in jail that Excise Police Ghotki had lodged a false FIR against his two friends and shown their car as case property; he also prayed for return of his cash and CNIC. Both appellants subsequently examined themselves on oath at Exh. 11 and 12 and produced two defence witnesses, Muhammad Sudheer and Haq Nawaz, at Exh. 13 and 14, whereafter the defence evidence was closed at Exh. 15. 8. After hearing both sides and appraising the material on record, the learned trial Court convicted and sentenced the appellants as mentioned in the opening paragraph of the judgment, vide judgment dated 23.02.2024, which has been impugned through the present appeal.

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9. Learned counsel for the appellants argued that the impugned judgment is vitiated by misreading and non-reading of evidence and that the prosecution case is riddled with material contradictions and physical impossibilities. He contended that the alleged wooden cavity behind the driver’s seat could not, in fact, contain 100 kilograms of charas, which assertion is reinforced by the production of only 88 kilograms before the trial Court, leaving an unexplained sh ortfall of 12 kilograms that fatally undermines the prosecution’s plea of safe custody and chain of custody. He further submitted that tracker records established that the appellants were apprehended on 30.12.2022 at Qutubdin Rest Area and illegally confin ed thereafter, contrary to the FIR version of arrest on 01.01.2023, and that the trial Court, by delaying and ultimately dismissing applications for summoning CCTV footage and official tracker data, denied the appellants a fair trial. Learned counsel put s tance that copy of register XIX produced as Exhibit No. 6/E is silent about time of dipositing contraband and its dispatch for chemical analysis; besides, road certificate produced as Exhibit 6/F shows to be issued on 01.01.2023 and chemical report produced is suggestive of the fact tha t sample was received at chemical laboratory on 02.01.2023 and no explaination in this respect furnished by the prosecution, where the sample remained for a day, hence safe custody and its safe transmission to chemical lab has been compromised. He also urg ed that the author of the memo of arrest and recovery as well as 161 Cr.P.C statements of the Prosecution witnesses namely ED Hubdar Ali has not been examined, which is fatal for the prosecution narrative. He also emphasized that, despite an alleged recovery on a busy highway during daylight, no independent witness was joined, no videography was undertaken in the teeth of Supreme Court guidance, and that the complainant himself acted as Investigating Officer

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without independent corroboration, thereby necess itating extension of benefit of doubt. 10. Conversely, learned DPG for the State supported the conviction, maintaining that the prosecution had proved its case beyond reasonable doubt on the basis of consistent and confidence-inspiring official testimony, which, under the CNSA, is as competent as that of private witnesses. He argued that the recovery of a large commercial quantity of 100 kilograms of charas from a secret cavity of the vehicle driven by appellant Akbar Hussain stood corroborated by the Chemical Examiner’s positive report, that the defence had failed to prove the authenticity of the tracker record through any company official, and that minor discrepancies in the defence evidence rendered it unreliable. He further submitted that there is no legal embargo on the complainant acting as Investigating Officer or Malkhana incharge and, considering the grave societal impact of narcotics trafficking, the appellants merited no leniency. 11. We have heard learned counsel for the appellants and learned Deputy DPG for the State at length and have examined the record, including the impugned judgment, depositions of prosecution and defence witnesses, documentary exhibits and the tracker record produced by the defence, as well as the case law relied upon by both sides. 12. Before adverting to the factual appreciation, it is pertinent to note that the Control of Narcotic Substances Act, 1997 was enacted to consolidate and amend the law relating to narcotic drugs, psychotropic and controlled substances and matters connected therewith or ancillary thereto, as is evident from its preamble. Section 9 of the Act prescribes prohibitions and penalties relating to possession, trafficking and financing of trafficking of such substances; sub-section (3)(e) thereof provides for imprisonment for life and

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fine up to one million rupees where the quantity involved is ten kilograms or more. In the present case, the appellants were charged with trafficking 100 kilograms of charas, a clearly commercial quantity, on the basis of which the trial Court imposed the maximum sentence. 13. The jurisprudence under the CNSA consistently holds that, given the severity of the punishments prescribed including life imprisonment and, in some situations, death, the prosecution evidence must be subjected to strict scrutiny, and any reasonable doubt must redound to the benefit of the accused. In Ismaeel v. The State (2010 SCMR 27), the Hon’ble Supreme Court reiterated that, although the nature of evidence in narcotics cases may differ from ordinary criminal trials, the prosecution’s burden to prove the charge beyond reasonable doubt remains undiminished, and where two possible views emerge from the evidence, the one favourable to the accused must prevail, a principle rooted both in Islamic jurisprudence and the common law tradition consistently applied by the superior courts. 14. In the present case, the prosecution case rests entirely on the testimony of two witnesses: PW -01 Excise Inspector Qamardin Siyal, who is the complainant, Investigating Officer, Malkhana incharge and also a witness to the alleged recovery, and PW -02 Excise Constable Moula Bux, who was appointed as one of the two mashirs due to the alleged non-availability of private persons at the spot. The other mashir, Excise Constable Zubair Ahmed, was not examined, and no explanation was offered for his non-examination. The prosecution had listed seven witnesses in the challan but examined only two and abandoned the remaining five without any justification, a circumstance that materially weakens the prosecution case and raises serious doubt about the reasons for not examining those who were allegedly present at the scene.

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15. PW-01, in his examination -in-chief, merely reiterated the facts stated in the FIR, but in cross-examination, he admitted that no other vehicle was checked before the arrival of the oil tanker, that the place of incident is the busiest road, that he did not record the currency numbers of the notes recovered from the appellants in the memo of arrest and recovery or in the FIR, that he does not know whether the wooden cavity is available in every oil tanker, that he does not remember whether other small cavities existed in the main cavity, that he himself opened the wooden cavity, that the weighing of charas was done with the help of battery -operated lights, that no excise official was giving signals to other vehicles passing through the check post at the time of weighing, that he does not remember the exact date of his visit to Khyber Pakhtunkhwa for investigation, that he does not recall how many excise officials accompanied him, that he did not measure the size of the wooden cavity in length, width and height, and that he did not produce the appellants before the learned Judicial Magistrate for recording confessional statements under Section 164, Cr.P.C. He denied the suggestion that Akbar Hussain was arrested from a hotel at Qutubdin Rest Area and Sirajuddin from the washroom there on 30.12.2022, and also denied that Excise Constable Huzoor Bux had driven the tanker from Qutubdin Rest Area to Public School Obaro, as per the tracker record. 16. PW-02, Excise Constable Moula Bux, generally corroborated PW-01, but in cross-examination, admitted that his duty timings are 12 hours and sometimes extend to 24 hours, that it was darkness of night when the incident occurred, that the oil tanker was from another province and therefore treated as suspicious, that the wooden cavity is not available in every oil tanker but only in some vehicles, that no other item was found in the cavity except charas packets, that he does not know the exact size of the

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cavity in width, length and height, that he could not name the offices to which letters were sent for investigation or the courier service used, that two speakers are installed in the wooden cavity, that he could not state the length of the cavity as four and a half feet and depth as eight inches, that no lock is installed in the cavity, that one corner of the cavity touches the driver’s seat and the other the front seat, and that the cavity is like a tool box. 17. After a careful scrutiny of the prosecution evidence, several material circumstances emerge which cast serious doubt on the veracity of the prosecution case. First, the alleged recovery took place at the Excise Check Post near Arore University on National Highway, admittedly the busiest road, yet no private person was associated as a witness. PW -01 merely stated that, due to non -availability of private persons, he appointed two excise constables as mashirs, but he did not explain what efforts were made to locate pr ivate persons or why, at a busy check post on a national highway at 6:30 p.m., no private person was available to act as a witness. While Section 25 of the CNSA excludes the application of Section 103, Cr.P.C. and thus does not legally compel the prosecution to associate private witnesses, yet when a recovery is alleged to have occurred at a busy public place, the failure to associate any private person despite their availability naturally arouses suspicion about the genuineness of the recovery. The Hon’ble Lahore High Court in 2024 PCrLJ 370 has held that in cases where the entire testimony hinges on police officials alone, and where the alleged recovery was made on a road, the omission to secure independent mashirs, especially in police cases, cannot be lightly brushed aside by the court. 18. Second, and more significantly, the Hon’ble Supreme Court of Pakistan in Criminal Petition No. 1192/2023, decided on 22.11.2023, has clearly observed that it is surprising that, in the month of May at 6:00 p.m.

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during daylight hours at a popular public park, the only witnesses were policemen and none of them made a video recording or took any photographs of the seizure and arrest. The Hon’ble Court further observed that it fails to understand why the police and members of the Anti-Narcotics Force do not record or photograph when search, seizure and arrest are made, and that Article 164 of the Qanun -e-Shahadat, 1984 specifically permits the use of evidence that may have become available through modern devices or techniques. The Hon’ble Court directed that, if the police and Anti-Narcotics Force were to use their mobile phone cameras to record and photograph the search, seizure and arrest, it would be useful evidence to establish the presence of the accused at the crime sce ne, their possession of the narcotic substance, the search and its seizure, and would also prevent false allegations that the narcotic substance was foisted upon them for ulterior motives. The Hon’ble Court also directed that a copy of the order be sent to the Secretary Ministry of Narcotics Control, Director -General Anti -Narcotics Force, Secretaries of Home Departments of all provinces, and IGPs of all provinces and ICT, so that they may consider amending police rules to ensure video recordings and photographs whenever possible. 19. In the present case, the alleged recovery took place on 01.01.2023 at about 6:30 p.m. at the Excise Check Post near Arore University on National Highway, admittedly the busiest road, and involved a huge commercial quantity of 100 kilograms of charas. All excise officials present at the spot were admittedly carrying mobile phones with cameras, yet not a single photograph was taken and no video recording was made of the alleged recovery or of the appellants at the spot. No explanation whatsoever has been offered by the prosecution for this glaring omission, and the learned trial Court did not even advert to this material aspect in the impugned judgment.

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In our considered opinion, the failure to make any video recording or take any photograph of such a large quantity of contraband at a busy public place in daylight hours, despite the clear directions of the Hon’ble Supreme Court and despite all officials having the necessary means, seriously undermines the credibility of the prosecution c ase and lends credence to the appellants’ plea that the contraband was foisted upon them. If the recovery was genuine, as claimed, there was no reason for the excise officials not to record it, which would have conclusively established the prosecution case and protected them from allegations of foisting; the deliberate failure to do so, in the face of clear directions from the apex court, can only lead to an adverse inference against the prosecution. 20. Third, there is a serious discrepancy in the weight of th e recovered contraband. According to the FIR and the charge, the total weight of the recovered charas was 100 kilograms, but the record shows that when the case property was produced before the trial Court, the actual weight was only 88 kilograms. This unexplained shortfall of 12 kilograms has not been mentioned in the impugned judgment, much less explained by the prosecution, and during the hearing of the appeal, the learned DPP for the State could not offer any explanation for this glaring discrepancy. In our view, this unexplained loss of 12 kilograms from the sealed case property, allegedly kept in safe custody in the Malkhana, completely destroys the prosecution’s case regarding safe custody and raises serious doubt about whether the recovery was made a s alleged or whether the contraband was foisted upon the appellants. The prosecution is required to establish an unbroken chain of custody from recovery to chemical examination, and any break in that chain creates reasonable doubt. In Kamran Shah v. State and Razia Sultana v. State, the Hon’ble Supreme Court has held that safe custody

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and safe transmission of samples are essential for conviction, and in their absence, reliance cannot be placed on the Chemical Examiner’s report. In the present case, the unexplained loss of 12 kilograms from the sealed case property indicates that the chain of custody has been broken and the case property has not been kept in safe custody, a circumstance sufficient in itself to create reasonable doubt in the prosecution case. 21. Fourth, the prosecution has failed to prove that the alleged wooden cavity in the oil tanker had the physical capacity to accommodate 100 packets containing 200 slabs of charas weighing 100 kilograms. Both prosecution witnesses admitted in cross -examination that they did not measure the size of the wooden cavity in length, width and height. PW -02 admitted that speakers are installed in the wooden cavity, that it is like a tool box, that one corner touches the driver’s seat and the other the front seat, and that no lock is installed in it. Learned counsel for the appellants strongly contended that the wooden cavity in oil tankers is essentially a tool box meant for tools and fire extinguishers and cannot physically accommodate 100 packets containing 200 slabs of charas weighing 100 kilograms, and further submitted that when the vehicle was produced before the trial Court, defence counsel pointed out that even one of the three bags containing the alleged charas could not fit into the cavity. The learned trial Court summarily rejected this contention by merely observing that it is incorrect to suggest that 100 kilograms of charas cannot be stored in a wooden cavity, without ordering any measurement, verification or expert examination. In our considered opinion, w hen the defence raised the issue of physical impossibility and specifically contended that the alleged cavity could not accommodate the alleged quantity of contraband, it was incumbent upon the prosecution to prove, by measurements, photographs and, if nec essary,

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expert evidence, that the cavity had the physical capacity to hold the alleged quantity. The failure of the prosecution to do so, coupled with the trial Court’s refusal to order any verification, amounts to denial of a fair opportunity to the appel lants to prove their defence, and the learned trial Court should have ordered measurement of the cavity and examined whether 100 packets containing 200 slabs weighing 100 kilograms could physically fit into it. The failure to do so constitutes improper eva luation of…

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