N THE SUPRrMF- coIJRTfit1IAN
Jurisdlctlofl
(Appellat
PRESENT:
Mr. Justice Sarciar Tariq M asocid
Mr. justice Mzllar Atam Khan MitUikhCl
Mr. justice .n itn-ud-Din Khan
JAIL PETIPION NO. 587 OF 2016
MW  cRL &M.R.P N0.g4_0F 2Q29
ItirL al3Lll LLJTL%I jLC jvdRmcflI c!oIeJ 11.11201 4 of TIC Pc Chat ar
LIIFO . CLL 
IsTTL4r passed fl .1 CIA So 43 P/20l2(
Qasor 
(.Ji' No S7 0t10161
Mi iha, 'Ifirld Zarcef I3hatI i of S.4 .R I' IT, 447 oF 20221 
petitioners
Versus
Thu Si ate 
(LIT ILOtIL pCLItILLOSI 
Respondents
For L he })('l [tInner:
N.' 0 LLLLLlOI 
Mr Arshad IlLissaiti Shah, AOP
it 
Mr. zuihqar KhaI,d hialuka, ASU
NL}. 447 of 202a): Not represented
POP Lw Stale: 
n
r. Shu ay1 Azle, MW .A. 0., NICK
Date Li' Len,ig 
. 
(i2 Ub.2022
ORDER
SARDAR 
2JMPQP
Cr!. tl.A, No 1767 of 2016
Fo reason mentioned in instant Clio li,, tion  [or condonation of
de !a' ,J:. e sarlic is allowed LOW  LU Ucla', of b99 days in filin g of the
It ,Jtil 1011 IS &ondonCd.
jeff.p iI No. 587 of 2016
2 
Pc Litlo nor Qaiser aiongwith NIIJITI Zarccf ifllatti was
indicic ri in case FIR No.333 dated 19 .OS.2()I I rogistered under section
Of 11w Control of Norcotic Substances Act, 19(37 
Act , 1997) at
Jon UniversitY Town. !'cshiwar After rorlclLLsioi l of rial,
I. 
gore.
It'anlLerl iria coup vid judgnlrfl t dated 21 Ot,.20 12 conivictrrd the
petitioli r r anal
 
co-ar.cL tcd MuanLinrd Zarec[ I3hatti. under SCOTT
9 
tILC Act, 1997 mid :cr.tcticcd CULII 01 them to inlprlSorilflcflt for
life wtb I Lc of its .25.000/- or 
del l[It of 
payment Of fine to iurtht'r
tmdcr;'i Ux rilontlis siv,inIe 
UF LI isoiifltflTi Renefil of seclion 382-B
I
P 1. IS. uI6
Cr.P.C. was also extended to him. Being aggrieved, petitioner and
Muhammad ZareefBhatti riled appeals before the Peshawar High Court,
Peshawar which were dismissed the impugned judgment dated
11 11.2014 - Hence, this petition for leave to appeal by the petitioner
Qaiser through jail.
3.
We have heard the learned counsel for the petitioner as well as
the learned Additional Advocate General. KPK and perused the available
record alongwith the impugned judgment with their assistance and
observed that in this ease the prosecution has failed to establish the
safe custody and safe transmission of sample parcels to the concerned
laboratory. This court had laid down in many judgments that the
representative samples of the alleged drug must be kept in safe custody
and undergo safe transmission from the stage of recovery till its
submission to the office of the Government analyst. Non establishing
the said facts would cost doubt and would impair and vitiate the
concluseness and reliability of the report of the Government analyst.
Thus rendering it incapable of sustaining conviction.
4.
In the present case no police official was produced before the Trial
Court to report about safe custody of samples if entrusted to him for
being Rep' in the Malkhana in safe custody. Even the police official
whose belt number (FC 4225) has been mentioned by the Government
analyst in his report, was not produced by the prosecution to depose
regarding the safe deposit IT the said sample parcels in the concerned
laboratory . The record reveals that the recovery was allegedly affected
on 19.08.2011 whereas, according i.e the report of chemical examiner,
the sample parcels were received in I he said office on 26.08.2011.
Nobody from the prosecution side was produced to claim that during
this period the said sample parcels remained intact in his possession or
under his control in the M&khanu in safe custody. Even the
prosccuiion is silent as to where remained these sample parcels from
19.08.2011 to 26.08.2011. In absence of establishing the safe custody
and safe transmission, the element of tempering cannot be excluded in
this case. The chain of custody of sample parcels begins from the
recovery of the narcotics by the police including the separation of
reprcsriitative samples of the recovered narcotics, their dispatch to the
MaIk-hana and further dispatch to the tesiing lahoratoiy The said chain
of custody and transmission was pivotal as the entire construct of the
Act 1997 and the Control of Narcotic Substances (Government Analysts)
Rules 2001 (Rules 20011, rests upon the report of the analyst. It is
prosecutions bounded duty that such chain of custody must be safe
and secure because the report of chemical examiner enjoined critical
importance under the Act 1997, and the chain of custody ensure the
reaching of correct representative samples to the office of chemical
examiner Any break in the chain of custody i.e. the safe custody or sale
transmission of the reprcsentativc samples, makes the report of
chemical examiner worthless and un-reliable for justifying conviction of
the accused. Such laps on the part of the prosecution would cast doubt
and would vitiate the conclusiveness and reliability of the report of
chemical examincr. Reliance can be made upon the judgments rendered
by three members benches of this court I.e. Ikramuflah V. the State
(2015 SCMR 1002), the State v. Imam B&ChSh (2018 S'CMR 2039),
Abdul Ghani a the State (2019 SCMR 608), Kamran Shah is the
State (2019 SCMR 1217), Mist. Russia Sultana v. the State (2019
SCMR 1300), Fainrt AU V. the State (2019 SCMR 1649), Zahir Shah
alias Shat is State thn AG KPK (2019 SCMR 2004), Hall Nawaz V.
the State 2020 SCMR 687), Qaiser Khan V. the State (2021 SCMR
3631, Mn. Sakfna Ram.zan v. the State (2021 SCMR 451), Zubair
Khan is the State (2021 SCMR 492) and Guizar a the State 2021
SCMR 380).
5 Although the learned Additional Advocate General, KPK tried to
persuade us for deviation from the earlier judgments but it is quite clear
from the judgments of this Court that 3-Members Bench remained
unanimous that the prosecution is required to prove the sale custody
and safe transmission of the sample parcels. It is now established that
the decision of a bench of certain member of judges is binding on the
subsequent bench of the same strength and if a subsequent bench of
the sam" strength wants to lake a different view the only possibility is
to refer the matter to the Chief Justice of Pakistan for the constitution
of a larger bench, even a decision of a bench of equal strength is not
brought into the notice of a subsequent bench of same strength and it
expresses 'a contrary view, then the later decision is a judgment per
incuriam.
6. 
In We case of Mst. Sarnrana Nawaz p. M.CH. Hank Ltd. (PLD
021 SC 581) it was held that earlier judgment of a Bench of the
Supreme Court was binding not only upon the Benches of smaller
/ 2&J
numeric strength but also upon the Benches of co-equal strength a
Bench of co-equal strength could not dcviate from the view held by an
earlier Bench, and if a contrary view had to be taken, then the proper
course was to request the Chief iustice of the Supreme Court for
constitution of a larger Bench to reconsider the earlier view. Smaller
Bench cannot request for the constitution of a larger Bench to revisit
the opinion of a larger Bench or' any (location or principle of law. View
expressed by a three member Bench of the Supreme Court could only
he changed or deviated, from a Bench of equal number for which the
forum provided by law was to request the Chief Justice for constitution
of a larger Bench. In the cases of Multiline AssociateS a Ardeshir
Cowasjcc (PLD 1995 SC 423) and Wak Limited Muttan Road, Lahore
V. collector Central Excise and_ Saks Tax.Lahore (now
CommissIoner Inland Revenue. LTU. Lahore) (2018 SCMR 1474) it
was held that earlier judgment of equal Bench of the High Court on the
same point was binding on the subsequent Bench and if the
subsequent Bench tended to take a different view, it had to request for
the conist! 'ation of larger Bench. In the case of Union of India &
others p. S.K. hialloor 1(2011) 4 8CC 5391 it was held that if a
subsequent coordinate Bench of equal strength wants to take a different
view, it can only refer the matter to a larger Bench, otherwise the prior
decisioi or a co-ordinate Bench is binding on the subsequent Bench of
equal strength and if any subsequent judgment by deviating from the
earlier judgment of equal number of bench, would be perincurium.
Same was the view of this court In Ardeshir Cowasjee and 10 others
Vs. Karachi Building Control Authority KMCL Karachi and 4 others
(1999 SCMR 2833). Thus tire judgments passed by the 3-Members
Benches, mentioned above, have binding effect upon equal or less
Member Benches of this Court, unlcss contrary is declared by a larger
Bench of this Court.
7. It is also a circumstance that the Act 1997 provide sever
punishment, therefore, their proof has to be seen strictly and the
benefit of any doubt in the prosecution case must be extended to the
accused because harder the sentence is, stricter the standard of proof
should be. Because for convicting an accused person for such a severe
punishrilcfli the bounded duty of the prosecution is to prove the case
without an y breakage of chain, as discussed above.
-I
.
-
-
,i)fl)
8.
For the forgoing reasons, this petition is converted into an appeal
and the same is allowed. The conviction and sentence of petitioner
Qaisar, passed by the trial court and upheld by the High Court, is
hereby sc I aside and he is acquitted of the charge in the instant caseS
He be released from jail forthwith if not required to be detained in any
other case
Cr!. S.M.R.P. No. 14of2022
9.
Pci it ioner Muhammad Zareef Uhatti alongwith Qaisar was
indicted in case FIR No 333 dated 19 08.20 TI regisiered under section
9 (c of the Control of Nat-colic Substances Act, 1997 ('Act, 19971 at
police station University 'l'owri, Peshawar After conclusion of trial,
learned trial court vide judgment dated 21.062012 convicted the
petitioner and Qaisar under section 9 (c) of the Act, 1997 and sentenced
them i t (Tiprisonnient for lire with a fine of Rs.25 ,000 / - or in default of
paymeti t Of fine to further undergo six months simple imprisonment.
Benefit of section 382-5. Cr.P C. was also extended to him. Being
aggricvcrl, petitioner and co-convict flied appeals before the Peshawar
High Court, Peshawar which were dismissed vide impugned judgment
dated 11.l1.2014 Thereafter petitioner riled jail petition No. 447 of
2014 bclnrc this Court which was rbs'nisscd on 23.02.2016 and leave
was ic Ilised but during the course of hearing of Jail Petition No. 587 of
201 5 coo conviction of Cotter, co-convict of the review petitioner, it was
observed that safe custody and safe transmission of the sample parcels
have not been established and this fact had been escaped notice from
the 13c:tic} when Jail petition No 447 of 2014 riled by the petitioner
Muhammad Zareef Bilotti was dismissed on 23.05.2016. The mater
was reft2r'ed to the Hon'ble Chief Jusi ice and it was ordered by the
Forcible Chief Justice that this Jail Petition No. 447 of 2014 be taken up
as Suit Motor Review Petition and he heard alongvith Jail Petition No.
587 012015 (ready decided above)
10.
As in this case neither the sale custody nor the safe transmission
was established by the prosecution and we have extended the benefit of
such defect in the prosecution case to co -convict Qaiser, so the same
benefit is also extended to the petitioner Muhammad Zareel Bhatti, as
mentioned above. Consequently, this Sue Moto Review Petition is
allowed and the earlier order dated 23 0L20 IS, passed by this Court, is
recalled at id the Jail Petition No 447 of 2014 is restored. For the
reasons mentioned in the ordor in Jail Petition 1r0 587 of 2016, Jail
.S ;• Mild
Pctilion No. 447 of 2014 filed b y Muharrirnad Zareel Bhatti is also
converted into an appeal and the same is allowed thc conviction and
sentence of petitioner Muhammad Zarcef Uhatti, passed by the trial
court and upheld by the High Court, is also hereby set aside and he is
acquitted of the charge in the instant case He be released from jail
forthwith iCnot required to be detained in a ny other 
I sIan i a be U
02 06.2022
n C—.-
APPROVED FOR REPORTING