IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
 
PRESENT: 
Mr. Justice Asif Saeed Khan Khosa, CJ 
Mr. Justice Faisal Arab 
Mr. Justice Qazi Muhammad Amin Ahmed 
 
 
 
Criminal Appeal No. 7-P of 2017 
(Against the judgment dated 15.05.2013 passed by the Peshawar 
High Court, Peshawar in Criminal Appeal No. 768 of 2010) 
 
 
 
Hussain Shah, etc. 
 
 
…Appellants 
 
 
 
 
 
versus 
The State 
…Respondent 
 
 
 
For the appellants: 
Mr. Altaf Samad, ASC 
 
Mr.  Tasleem Hussain, AOR 
 
 
For the State: 
Mr. Muhammad Tariq Kakar, State 
Counsel 
 
 
 
 
Date of hearing: 
20.09.2019 
 
JUDGMENT 
 
 
Asif Saeed Khan Khosa, CJ.:     Hussain Shah and Abdul 
Sattar appellants were booked in case FIR No. 33 registered at 
Police Station Anti-Narcotics Force, Peshawar on 31.05.2009 in 
respect of an offence under section 9(c) of the Control of Narcotic 
Substances Act, 1997. The allegation leveled by the prosecution 
was that a trailer-truck being driven by Hussain Shah appellant 
was intercepted by a raiding party and from a secret cavity of that 
vehicle Charas weighing 12000 kilograms contained in 600 bags, 
each bag containing 20 packets, was recovered and samples of the 
recovered substance had subsequently been tested positive by the 
Criminal Appeal No. 7-P of 2017 
2
Chemical Examiner. It was alleged by the prosecution that at the 
relevant time Abdul Sattar appellant was sitting on the front seat 
of the said vehicle next to the driver’s seat. It was maintained by 
the prosecution that Abdul Sattar appellant was a cleaner and a 
helper of the driver of that vehicle. After a regular trial the 
appellants were convicted by the trial court for an offence under 
section 9(c) of the Control of Narcotic Substances Act, 1997 and 
were sentenced to imprisonment for life each and to pay fine which 
convictions and sentences of the appellants were subsequently 
upheld and maintained by the High Court. Hence, the present 
appeal by leave of this Court granted on 27.09.2017. 
 
2. 
Leave to appeal had been granted in this case in order to 
reappraise the evidence and with the assistance of the learned 
counsel for the parties we have undertaken that exercise.  
 
3. 
Hussain Shah appellant was driving the relevant vehicle 
when it was intercepted and from a secret cavity of that vehicle a 
huge quantity of narcotic substance had been recovered and 
subsequently a report received from the Chemical Examiner had 
declared 
that 
the 
recovered 
substance 
was 
Charas. 
The 
prosecution witnesses deposing about the alleged recovery were 
public servants who had no ostensible reason to falsely implicate 
the said appellant in a case of this nature. The said witnesses had 
made consistent statements fully incriminating the appellant in the 
alleged offence. Nothing has been brought to our notice which 
could possibly be used to doubt the veracity of the said witnesses. 
Both the courts below had undertaken an exhaustive analysis of 
the evidence available on the record and had then concurred in 
their conclusion regarding guilt of the said appellant having been 
proved beyond reasonable doubt and upon our own independent 
evaluation of the evidence we have not been able to take a view of 
the matter different from that concurrently taken by the courts 
below vis-à-vis the said appellant.  
 
Criminal Appeal No. 7-P of 2017 
3
4. 
It has been argued before us that the report submitted by 
the Chemical Examiner did not mention the necessary protocols 
followed or tests applied but we have seen the said report available 
on the record of the trial court and have found that the said report 
not only referred to the protocols adopted but also to the tests 
applied and, thus, we have not been able to find any deficiency in 
the said report. It has further been argued before us that the 
Chemical Examiner who had prepared the relevant report was not 
qualified to hold that position and in that connection Rule 3 of the 
Control of Narcotic Substances (Government Analysts) Rules, 2001 
has been relied upon but we have found that there is nothing 
available on the record to conclude or hold that the Chemical 
Examiner preparing the relevant report was not qualified to hold 
that office. Apart from that a Notification is available on the record 
according to which the relevant Chemical Examiner had been duly 
notified by the Government as a Federal Government Analyst. The 
record further shows that the said Chemical Examiner had 
prepared the relevant report at a time when he was being assisted 
in the matter by Mrs. Farhana Shaukat who held the degree of 
M.Sc. Biochemistry and she too was notified by the Government as 
the Federal Government Analyst through the same Notification. In 
this view of the matter the objection raised before us regarding the 
Chemical Examiner in this case not being qualified to hold that 
office has failed to impress us. Yet another argument was raised 
before us regarding the trial court having no jurisdiction to take 
fresh samples from the recovered substance so that they may be 
examined by the Chemical Examiner but even that argument has 
not been found by us to be holding much water. The record of the 
case shows that initially 600 samples taken from the 600 bags 
recovered from the relevant vehicle had been sent to the Chemical 
Examiner for analysis but the Chemical Examiner had returned 
those samples and had required that a sample had to be taken 
from each and every packet of the substance recovered in this case 
and such packets were 12000 in number and it was in that 
backdrop that the trial court had instructed a Magistrate and 
under the supervision of that Magistrate fresh and separate 
Criminal Appeal No. 7-P of 2017 
4
samples had been secured from all the 12000 packets recovered 
which samples were then sent to the Chemical Examiner and 
thereafter a report was submitted by the Chemical Examiner in the 
positive. It has also been argued before us that the appellants were 
not associated with the process of taking of fresh samples by the 
supervising Magistrate but the learned counsel for the appellants 
has failed to refer to any provision of law requiring that the 
accused persons had to be associated with such taking of samples. 
There are some precedents available which require that at the time 
of destruction of the recovered substance an accused person is to 
be associated with such process but neither any legal provision nor 
any precedent case has been referred to before us in support of the 
contention raised regarding association of the accused persons 
with taking of fresh samples by the trial court. Apart from that 
presumption of regularity and correctness was attached to the 
exercise undertaken by the trial court in that regard and there is 
nothing on the record to dislodge that presumption.  
 
5. 
For what has been discussed above we have entertained no 
manner of doubt that the prosecution had succeeded in proving its 
case against Hussain Shah appellant beyond reasonable doubt. 
This appeal is, therefore, dismissed to his extent and his conviction 
and sentence recorded and upheld by the courts below are 
maintained.  
 
6. 
As far as Abdul Sattar appellant is concerned it was alleged 
by the prosecution that he was a cleaner and a helper of his co-
convict namely Hussain Shah and he was travelling in the same 
vehicle when the said vehicle was intercepted by the raiding party. 
It has been pointed out before us that according to the evidence 
brought on the record Abdul Sattar appellant also knew about 
existence of a cavity in the body of the relevant vehicle but nothing 
had been said by any prosecution witness about the said appellant 
having the requisite knowledge about availability of narcotic 
substance in such cavity of the vehicle. As a matter of fact no 
evidence worth its name had been brought on the record to 
Criminal Appeal No. 7-P of 2017 
5
establish that the said appellant was conscious about availability 
of narcotic substance in a secret cavity of the relevant vehicle in 
which he was traveling along with its driver. The law is settled by 
now that if the prosecution fails to establish conscious possession 
or knowledge in that regard then a passenger cannot be convicted 
solely on the basis of his availability inside a vehicle at the relevant 
time. This appeal is, therefore, allowed to the extent of Abdul 
Sattar appellant, his conviction and sentence recorded and upheld 
by the courts below are set aside and he is acquitted of the charge 
by extending the benefit of doubt to him. Abdul Sattar appellant 
shall be released from the jail forthwith if not required to be 
detained in connection with any other case.  
 
 
Chief Justice 
 
Judge 
 
Judge 
Islamabad/Video Link at Peshawar 
20.09.2019 
Approved for reporting.  
 
Arif 
