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Official Citation: 2025 IHC 222534
Court / Jurisdiction: Islamabad High Court
Parties: Haneef Ahmad vs The State etc.
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2025 IHC 222534. In this matter between Haneef Ahmad and The State etc., 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.
COURT: Islamabad High Court (Honourable Ms. Justice Saman Rafat Imtiaz) AUTHOR JUDGE: Honourable Ms. Justice Saman Rafat Imtiaz DECISION DATE: 30-JUN-2025 CASE NO: Jail Appeal-217-2024 CITATION: 2025 IHC 222534 PARTIES: Haneef Ahmad VS The State etc. LAW / SECTION: - SUBJECT: Against Conviction (PPC), Above 7 years REMARKS: Jail Appeal in FIR No. 614/2023 dated 05.07.2023 U/s 6(1) 6C CNSA P.S. Khanna, Islamabad ============================================================ JUDGMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD
JAIL APPEAL NO.217 OF 202 4
HANEEF AHMED. Versus THE STATE.
Appellant by : Ms. Hira Ashraf, Advocate. Faisal Bin Khursheed, Advocate. Respondent by : Muhammad Wajid Munir, Deputy District Public Prosecutor. Muhammad Imran S.I, P.S. Khanna
Date of hearing : 07.05.2025.
SAMAN RAFAT IMTIAZ, J. 1. This Criminal Appeal has been filed by the Appellant [ Haneef Ahmed s/o Rasheed Ahmed ] against the Judgment dated 08.05.2024 (“Impugned Judgment”) passed by the learned Judge Special Court, (CNS A), Islamabad, whereby the Appellant has been convicted under Section 9 (1)(6)(c) of the Control of Narcotic Substances Act, 1997 (CNSA, 1997) in the case of FIR No.614/2023 dated 05-07-2023 registered at P. S. Khanna, Islamabad and sentenced to undergo ten (10) years rigorous imprisonment with fine of Rs.125,000/- (One hundred and twenty five thousand rupees ) and in default whereof to undergo further three (03) months simple imprisonment. 2. The f acts of the case, as per the FIR are that on 05-07-2023 the Complainant [Tanveer Hussain Kayani S.I, P.S. Khanna, Islamabad ] along with other officials was on patrolling duty at Lehtrar Road near Sanam Square in a private vehicle when they received spy information that a person with huge quantity of narcotics was standing wai ting for customer who could be apprehended successfully if raid is conducted in a timely manner. The Complainant along with the other police officials , acting on spy information, reached Burma Town Street near Chappar Hotel at about 06:50 p.m ., where a 2 Jail Appeal No.217/2024
suspicious person after seeing the police party tried to escape but was apprehended with the help of accompanying officials. O n interrogation, he disclosed his name and address as Haneef Ahmed son of Rasheed Ahmed, Caste Rajpot Bhatti, resident of Chak No. 28R Mirzapur, Tehsil Mian Channu, District Khanewal. Upon his personal search, as per procedure , Heroin Powder of light brown color wrapped in a blue colored shopper bag held by the Appellant in his left hand was recovered. On weighing with electric scale, the Heroin Powder was found to be 1025 grams . Out of the recovered Heroin Powder 1 gram was separated for chemical an alysis. The Complainant prepared two parcels i.e. one sample parcel and other of remaining narcotics with seal of “MT” and took the same in possession vide the Recovery Memo. 3. After completion of investigation , challan was submitted against the Appellant. The charge was framed on 12-10-2023. The Appellant pleaded „not guilty‟ and claimed trial. The prosecution examined five witnesses and exhibited certain documents and items before closing their evidence. The statement of the Appellant was recorded under Section 342, Cr.P.C. in which he denied all the allegations leveled against him. 4. The learned counsel for the Appellant pointed out that while the FIR as well as the memo of recovery described the Heroin Powder as „light brown‟ the Forensic Report describes it as „off-white‟ powder. Furthermore, she submitted that admittedly the samples were sent for forensic after a delay of five days as evident from the evidence of PW -4, whereas Rule 4(2) of CNS (Gov ernment Analysts) Rules, 2001 provides that Forensic must be conducted within 72 hours. She relied upon Ahmed Ali and another vs. The State, 2023 SCMR 781 to submit that where transmission is not made within 72 hours the prosecution fails to establish safe transmission. She submitted that even otherwise safe transmission is not established, as Moharrar Malkhana/PW -4 stated in his cross examination that he handed over the sample parcel to Tanveer Hussain Kayani S.I. for onward transmission and submission in NFSA whereas PW -05/I.O stated in his examination in chief that he collected the sample parcel from Moharrar Malkhana and handed it over to Tanveer Hussain Kayani S.I. She also pointed out that PW -2 stated in his examination in chief that the Moharrar Malkhana 3 Jail Appeal No.217/2024
handed over the parcel to him which bore stamp/seal of “MT” for transmission to NFSA, whereas the seal should be of “TH”. Last but not least, she submitted that the blue colo ured shopper bag from which the Heroin Powder was allegedly recovered was not exhibited separately , which according to the learned counsel for the Appellant is grounds for acquittal . She also relied upon Asif Ali and another vs. The State through Prosecutor General Punjab, 2024 SCMR 1408. 5. On the other hand, the learned Special Prosecutor CNSA submitted that in the cross examination of PW -5 he has explained that the sample parcel was submitted to NFSA on the 5 th day of the occurrence and voluntarily stated that there were two days official holidays of Saturday and Sunday i.e. 8th and 9th July, 2023 in between, therefore, there was no delay according to him and even otherwise such delay is inconsequential as Rule 4(2) of CNS (Gov. Analysts) Rules, 2001 is merely directory and not mandatory. 6. In rebuttal, the learned counsel for Appellant submitted that the alleged occurrence took place on 5-7-2023 which was Tuesday and the official holidays of Saturday and Sunday were beyond 72 hours period. 7. We have heard the learned counsel for Appellant as well as the learned Special Prosecutor, CNSA, and have also perused the record. Ocular evidence 8. PW-1 [Muhammad Irshad]; PW-2 Tanveer Hussain Kiyani/Complainant]; and PW -3 [Abdul Basit] testified that on 05-07-2023 the police party present at Lehtrar Road near Sanam Square for the purpose of patrolling received spy information about a person in possession of huge quantity of narcotics waiting for customers and that they apprehended the Appellant from Burma Town Street near Chappar Hotel at around 6:50 p.m. while acting on such spy information and recovered 1025 grams of heroin from a blue coloured shopper bag held by the Appellant in his left hand. PW-2 [Tanveer Hussain Kiyani/Complainant]; PW-4 Moharrar Malkhana [Muhammad Saeed]; and PW-5 [Zahid Hussain/IO] also testified regarding safe custody and safe transmission of the recovered narcotics and sample to the Malkhana and of the sample parcel from the Malkhana to the 4 Jail Appeal No.217/2024
National Forensic Science Agency (“NFSA”) . The prosecution witnesses fully corroborated each other. Alleged discrepancy in ocular evidence 9. There is no material discrepancy between the evidence of the PW-3, PW-4 and PW -5 as alleged by the learned counsel for the Appellant. The Moharrar Malkhana/PW-4 stated in his cross examination that he handed over the sample parcel to Tanveer Hu ssain Kayani S.I./PW-2 for onward transmission to NFSA on the direction of I.O . Zahid Hussain Shah S.I./PW -5. Similarly, Tanveer Hussain Kayani S.I/PW-2 also stated that the Moharrar Malkhana/PW-4 handed over the sample parcel to him for onward transmission to NFSA on the direction of I.O. Zahid Hussain Shah S.I./PW-5. I.O. Zahid Hussain Shah S.I./PW-5 stated that he collected the sample parcel from the Moharrar Malkhana/PW -4 and handed it over to Tanveer Hussain Kayani S.I./PW-2. Minor variation in witness testimony, which is natural, does not make recovery doubtful or vitiate the trial1. 10. Similarly, the objection regarding the seal is immaterial given that PW -3 admitted that he stamped the parcels with the seal of “MT” and PW -4 testified that he received parcels bearing the stamp of “MT” and PW -5 also confirms receipt of case property sealed with stamp “MT” notwithstanding that “MT” are not PW-3‟s initials. 11. All PWs were subjected to cross -examination but they remained consistent in all material aspects like date, time, place, manner and quantity of recovery of narcotics from the Appellant 2 and nothing came to light to suggest that the Appellant was falsely implicated in the case. 12. Police officials are as good as private witnesses as the provision of Section 103, Cr.P.C. is not applicable to cases under CNSA, 1997 by virtue of Section 25 thereof and their testimony cannot be discarded merely for the reason that they are police officials unless accused persons prove their mala fide or ill-will toward the accused 3. The Appellant in the instant case has not even alleged any enmity
1 Akbar Vs. The State , 2017 YLR Note 277; Wisal Miuhammad Vs. The State , 2006 YLR 2504 2 Qasam Khan Vs. The State , 2024 YLR 1882; Rafaqat Ali Vs. The State , 2016 YLR 2173; Allah Ditta Vs. The State , 2018 YLRN 9 3 Shahzad alias Kalay Khan Vs. The State , 2020 YLR 1719 5 Jail Appeal No.217/2024
of the police officials against him let alone prove it. The reason for the registration of the case and deposition of the PWs against the Appellant given by him in his statement under Section 342, Cr.P.C. is to show their efficiency to the high ups, however, the Appellant failed to show any pressure on the police or any other cause to show that they were under any compulsion to show such efficiency that too b y false implication against someone with whom they have no enmity . In similar circumstances the Lahore High Court in Muhammad Tanveer Vs. The State, 2008 MLD 602 repelled such argument by observing that it was not shown as to why the police would make fake recovery just to show efficiency by planting a huge quantity of 1050 grams of heroin, the value of which runs into lacs of rupees when the police could show it by planting lesser quantity of heroin or some other narcotic substance of cheaper value. Forensic Report 13. The recovered substance was produced as Ex . P1 and the forensic report dated 15 -8-2023 produced as Ex -PE confirms that the substance was indeed heroin powder 4. Variation in color of recovered substance as per FIR and Forensic Report 14. We do not consider the alleged variation between the FIR and the Forensic Report in respect of the colo ur of the recovered substance to be of any consequence. The FIR has been registered in Urdu which describes the recovered substance as “براؤن ہلکا”The Recovery Memo has also been recorded in Urdu which too describes the recovered substance as “براؤن ہلکا” . The Forensic Report which is in English describes the substance as „off -white‟ in color. The learned counsel for the Appellant was asked to translate off -white in Urdu but she could not come up with an exact equivalent. On the other hand, the color „off-white‟ is defined in the Concise Oxford English Dictionary, Eleventh Edition as a white color with a grey or yellowish tinge. In our opinion, the aforementioned Urdu word used in the FIR to describe the colour of the recovered substance can, for lack of a better alternative in the Urdu language, serve to loosely describe the colour „off-white‟ as well. Therefore, this cannot be concluded as a material
4 Muhammad Khan Vs. The State , 2008 SCMR 1616 6 Jail Appeal No.217/2024
contradiction especially considering that safe transmission is otherwise established and no question regarding this aspect was put to the PWs in cross- examination. Delay in transmitting recovered substance for forensic analysis 15. As far as the requirement under Rule 4(2) of CNS (Government Analysts) Rules, 2001 is concerned the Superior Courts have generally considered that sending a narcotic substance for forensic beyond a period of 72 hours does not vitiate the trial as the direction contained in the said rule is directory and not mandatory in nature 5. In fact the Supreme Court has held in Zain Ali vs. The State, 2023 SCMR 1669 that the CNS Rules, 2001 do not place any bar on the Investigating Officer to send the samples within a specified period of time and that the rules are stricto sensu directory and not mandatory as it does not spell out as to whether in case of lapse it wo uld automatically become instrumental in discarding the whole prosecution case and finally that the rules cannot control the substantive provisions of the parent act and cannot in any manner frustrate the salient features of the prosecution case. 16. Even the case relied upon by the Appellant i.e. Ahmed Ali (Supra) does not hold otherwise . T hough it emphasizes that the analyses of the narcotics substance should not be delayed in reference to the fact that Courts refuse to extend remand beyond 15 days in the absence of a chemical report however acquittal in such case has not been granted on account of delay in sending the narcotics substances for chemical testing. 17. In the instant case, the alleged recovery was admittedly made at 6:50 pm on 5 -07-2023, which was a Wednesday (not Tuesday as argued by the learned counsel for the Appellant). Thus 72 hours expired at 6:50 pm on 8 -07-2023 which was a public holiday on acco unt of being Saturday. The samples were sent for forensic on the following Monday which was the first working day after the two public holidays and as such there was no delay. Blue-colored shopper bag
5 Kashmaloo vs. Kabil Khan , 2024 P.Cr.L.J 174, Najeebullah vs. State , 2022 YLR 1222, Ella-ud-Din vs. State, 2017 YLR 113.
7 Jail Appeal No.217/2024
18. The learned counsel for the Appellant relied upon Ahmad Ali (Supra) to argue that a reasonable doubt is created in the case due to the prosecution‟s failure to separately exhibit the blue colored shopper bag from which the alleged narcotic was recovered. We, however, do not agree with the learned counsel for the Appellant that an inference can be drawn from the judgment rendered by the Supreme Court in Ahmad Ali (Supra) that failure to separately exhibit the blue colored shopper bag from which the substance in question was recovered creates reasonable doubt in the instant case. 19. The point at issue in Ahmad Ali (Supra) was the effect of the prosecution‟s failure to produce case property i.e. (a) the recovered charas and (b) the vehicle from the secret cavities of which the narcotic was recovered. In light thereof the Supreme Court considered why and under which provisions of law the case property is liable to be produced at trial. 20. To this end the Supreme Court examined Rule 22.16 of the Police Rules, 1934 which deals with seizure of case property by the police and Rule 22.18 which discusses custody of property and various other rules which provide a mechanism for safe custody and safe transmission of case property to the concerned labo ratory and then to the trial court . The judgment also adverted to Section 516-A, Cr.P.C. which deals with orders pending trial in certain cases for custody and disposal of property regarding which any offence appears to have been committed or which appears to have been used for the commission of any offence to highlight that samples of property which are found fit for safe custody and production before the Court are to be produced before the trial court and shall be deemed to be the whole of the property if remaining portion is destroyed under a certificate to be issued by the court that the property is a dangerous drug, intoxicant, intoxicating liquor or any other narcotic substance. More importantly, for purposes of our discussion, t he Supreme Court adverted to the Lahore High Court Rules and Orders (Civil and Criminal) (“High Court Rules and Orders”) and particularly Part-B of Chapter 24 of Volume 3 which deals with the trial of the Sessions cases to hold that clothes, weapons, money, ornaments, food and every other article that forms part of circumstantial evidence has to be produced in court and their connection with the case and identity should be proved by witnesses. 8 Jail Appeal No.217/2024
21. Based on , inter alia , the aforementioned provisions of law the Supreme Court held that when the best evidence i.e. the case property/narcotics, vehicles, etc. is withheld by the prosecution without plausible explanation an adverse inference or assumption can be drawn against the prosecution under Article 129- G of the Qanun -e-Shahdat Order, 1984 that no such material/narcotics is in existence. Therefore it was held that where the narcotics and the vehicle which form the case property are not produced in evidence a reasonable doubt is introduced the benefit of which must go to the accused. 22. There is no gainsaying that where the accused is alleged to be in possession of a narcotic drug or psychotropic or controlled substance the commission of such offence cannot be proved without producing the alleged substance in Court as recovery in narcotic cases is not merely a corroboratory piece of evidence rather itself constitutes the charge and entails punishment6. 23. Similarly, Courts have consistently held that non-production of the vehicle from which the narcotics are allegedly recovered is fatal for the prosecution case7. The Supreme Court in Ahmad Ali (Supra) identified Rule 14-F contained in Part B of Chapter 24 of Volume -3 of the High Court Rules and Orders as the provision of law under which the case property such as the vehicle from which the narcotics are recovered is liable to be produced at trial. 24. Relying upon Ahmad Ali (Supra) another Division Bench of this Court comprising one of us (Mohsin Akhtar Kayani J.) has alr eady held in an unreported judgment dated 3 -4-2024 passed in Awais Khan Vs. The State, Criminal Appeal No. 345 of 2023 that the principle behind producing the vehicle from which narcotics are recovered is equally applicable where narcotics were carried by the accused persons in a shoulder or shopping bag. 25. Therefore, let us consider Rule 14-F which is reproduced herein below: “14F Clothes, weapons, money, ornaments, food and every article which forms a part of the circumstantial evidence should be produced in Court and their connection with the case and identity should be proved by witnesses.”
6 Muhammad Akhtar Vs. The State , 2022 PCr.LJ 1233; Muhammad Nawaz Vs. The State , 2019 MLD 1574 7 Asad Vs. The State , 2021 YLR 254; Usman Shah Vs. The State , 2022 YLR 821; Ghulam Nabi Shah Vs. The State , 2020 YLR 2127; Nasir Iqbal Vs. The State , 2020 PCr.LJ 1410; Abdullah Shah Vs. The State , 2008 PCr.LJ 1633 9 Jail Appeal No.217/2024
Rule F ibid can be divided into the following three components: (a) Clothes, weapons, money, ornaments, food and every article which forms a part of circumstantial evidence should be produced in court, (b) The connection of such article(s) with the case and (c) Their identity should be proved by witnesses. [Emphasis added]. Circumstantial evidence 26. „Circumstantial evidence‟ as described in Syed Khalid Mehmood Vs. The State, 1994 P.Cr.LJ 757 is evidence from which disputed facts may be inferred as a natural or probable conclusion. It was explained by Robert L. Donigan, Edward C. Fisher, Robert H. Reeder and Richard N. Willams in The Evidence Handbook that circumstantial evidence is proof of facts from which the existence of other facts may logically be inferred. It was further explained that t he essence of circumstantial evidence is a logical inference from facts or ci rcumstances established by direct 8 or real 9 evidence, or both, from which the main fact in issue may be deduced through the exercise of reason and the common experiences of mankind 10. In Bichitrananda Nath Vs. State of Orissa , 2022 Latest Casel aw 6213 Ori , the High Court of Orissa observed that t he term „circumstantial evidence‟ is defined by Richard Glover and Peter Murphy in Murphy on Evidence (Thirteen Edition) as evidence from which the desired conclusion may be drawn which requires t he tribunal of fact not only to accept the evidence presented but then to draw an inference from it. The judgment further observed that term „circumstantial evidence‟ in India was used by Sir James Stephen for the first time stating that these facts depend on other facts and exists if it is proved that the other fact existed. This means that the inference is drawn according to the reasonable prudent man based upon pre -existing fact that has already been proved. 27. The Supreme Court of India in Anant Chintaman Lagu v. State of Bombay, AIR 1960 SC 500 defined circumstantial evidence to mean a combination of facts creating a network from which there is no escape for the accused because the facts taken as a whole do not admit of any inference but of his guilt. As
8 People v. Christiansen , 118 Ill.App.2d 51; State v. Baker, 249 Or. 440 9 Gass v. United State , 416 F.2d 767 10 People v. Robinson , 14 Ill.2d 325; In re Dilios‟ Will, 156 Me. 508; Webb v. State, 140 Tenn. 205 10 Jail Appeal No.217/2024
expressed by the Tennessee Court of Criminal Appeals in the case of Hick v. State, 490 S.W.2d 174, 178 in circumstantial evidence cases single facts, of themselves, may each account for little weight but when all the facts and circumstances are put together they may unerringly point the finger of guilt to the defendant beyond a reasonable doubt. Similarly, Bichitrananda Nath (Supra) further explained that circumstantial evidence does not establish complete guilt until every evidence is negating the innocence of the accused. The whole chain of fact and circumstance of the case should be so complete that from the same the existence of pri ncipal fact can legitimately by inferred or presumed and no suspicion or conjecture comes in the minds of the Court regarding the guilt of the accused when he c an be convicted on the basis of circumstantial evidence. In a case of circumstantial evidence a ll the pieces comprising the circumstantial evidence must constitute a chain without any missing link with the combined effect that the guilt is established beyond a shadow of doubt11. 28. One of the links to join in the chain of c ircumstantial evidence could be incriminating articles that are used for or in the commission of the offence 12 including the receptacle used to contain the substance in a narcotics case. Thus a vehicle from which narcotics are recovered may form a piece of circumstantial evidence from which guilt of the accused may be inferred. Connection of the article forming part of the circumstantial evidence with the case.
29. The connection of the article (example, vehicle or receptacle) being produced as part of circumstantial evidence must be proved with the accused by witnesses13. John Henry Wigmore in Anglo-American System of Evidence in Trials at Common Law (Third Edition) Volume 1 quotes Peterson, J in Smith & Ogden’s Trial, Lloyd‟s Rep. 82 that evidence which is offered to the court must be pertinent to the issue or in some proper manner connected with it for it would be an endless task and create inextricable confusion if parties were to give in evidence whatever wild imagination might suggest and the law would b ecome labyrinth and a bottom less pit.
11 Sh. Muhammad Amjad Vs. The State , PLD 2003 SC 704; Muhammad Hussain Vs. The State , 2011 SCMR 1127 12 Naveed Asghar Vs. The State, PLD 2021 SC 600; Gul Mir Vs. The State , 2021 YLR 2041 13 Bangal Khan Vs. The State , 2024 PCr.L.J 1241; Sarwar Shah Vs. The State , 2023 YLR 1997; Abdul Qadir Vs. The State, 2015 PCr.L.J 235; Taj Akbar Vs. The State , 2011 PCr.L.J 90 11 Jail Appeal No.217/2024
30. The evidence sought to be produced must have some probative force to connect the accused with the commission of the offence 14. Probative force is defined by Justice Holmes in Words and Phrases Volume 34 (Permanent Addition) as the tendency to make existence of any fact of consequence more or less probable than it would be without the evidence. For example, clothes worn by the accused during the commission of the offence do not necessarily have probative value in every case . But in Muhammad Waseem Vs. The State , Criminal Appeal No. 111 of 2024 where the accused was allegedly carrying narcotics in his shalwar pocket, another Division Bench of this Court comprising one of us…
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