IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Present:

Mr. Justice Adnan Iqbal Chaudhry,

Mr. Justice Zulfiqar Ali Sangi,

Criminal Appeal No.D-48 of 2022

Appellant : Ali Gul son of Muhammad Chuttal Magsi Through Mr. Athar Abbas Solangi, Advocate

The State : Through Mr.Ali Anwar Kandhro, Addl.P.G.

Date of hearing: 22-02-2023

Date of decision: 22-02-2023

JUDGMENT

ZULFIQAR ALI SANGI, J;- The captioned criminal appeal impugns the judgment dated 07.12.2022, passed by learned Additional Sessions Judge, Kashmore, in Sessions Case No.09/2022 (Re. St. Vs. Ali Gul Magsi), emanating from FIR bearing Crime No.26/2022, for offence punishable Under Section 9 (c) of C.N.S Act, 1997 registered with Police Station, Buxapur, whereby the appellant has been convicted for an offence punishable Under Section 9 (c) C.N.S Act 1997 and sentenced to suffer rigorous imprisonment for 05 years and 06 months with fine of Rs.25,000/- and in default whereof to suffer simple imprisonment for 05 months and 15 days more, with benefit of Section 382-B Cr.PC.

2. The allegation against the present appellant/accused as prosecution case is to the effect that on 14.03.2022, at about 0730 hours, a police party led by complainant SIP Ghulam Nabi Kalhoro while on patrolling apprehended the present appellant/accused from Indus Highway Sattar Abad Curve/Road Buxapur and secured a white color shopper containing Charas in shape of two packets, the same on weighing through digital scale came out to be 2050 grams which was entirely sealed for the chemical analysis. Such memo of arrest and recovery was prepared in presence of mashirs PC Janan Khan and PC Mirza Khan. Thereafter, the accused alongwith recovery was then taken to Police Station where the instant case for offence punishable Under Section 9 (c) of Control of Narcotics Substance Act was registered against the accused on behalf of the State.

3. On completion of usual investigation, final report under section 173 Cr.PC was filed against the appellant/accused before learned trial Court, where the formal charge was framed against him, to which he pleaded not guilty and claimed trial.

4. To establish the charge against the accused, the prosecution examined in all three witnesses i.e PW-01 Complainant SIP Ghulam Nabi Kalhoro, PW-02 Mashir PC Janan Khan and PW-03 SIO/SIP Hussain Ali Shahani, who all produced certain relevant documents in support of their statements. Thereafter, the learned State Counsel closed its’ side.

5. The present appellant/accused in his statement recorded in terms of Section 342 Cr.PC, denied the allegations leveled against him by pleading his innocence. However, he neither examined himself on oath in disproof of the charge nor led any evidence in his defence.

6. The learned trial Court on evaluation of the material and hearing counsel for the parties convicted and sentenced the present appellant/accused vide impugned judgment, as discussed above.

7. Per learned defence counsel, there is conflict in between the evidence of prosecution witnesses which has demolished the credibility of their evidence; that all the PWs are subordinates to the complainant therefore they are hostile against the appellant; that the Chemical Examiner’s report has not been put to the accused while recording his statement Under Section 342 Cr.PC; that there is no independent piece of evidence available with the prosecution against the present appellant/accused to show his involvement in the present case. Concluding his contentions, the learned defence counsel submitted that accused was apprehended by the police prior to date of alleged recovery and was falsely arraigned in this case by foisting recovery of Charas upon him by the police. He lastly prayed that the case of prosecution is doubtful and the appellant is entitled to his acquittal in the circumstances of the case. In support of his contentions, he relied upon unreported judgments passed by this Court in cases relating to C.N.S Act and other documents to prove innocence of the appellant.

8. Conversely, learned Addl.P.G for the State submits that all the witnesses have fully supported the case of prosecution and no any material contradiction has been noticed in their evidence; that the appellant is habitual offender which is also apparent from copies of FIRs produced by him in his defence, in that situation, learned trial Court finding the appellant/accused guilty of offence has rightly convicted and sentenced him by way of impugned judgment which calls for no interference by this Court, therefore, the appeal filed by him being devoid of merits is liable to its dismissal.

9. Heard arguments of learned counsel for the parties and perused the material made available on record with their able assistance.

10. The meticulous re-assessment of the material brought on record reflects that all the witnesses have tried to support the case of prosecution but their evidence when scrutinized deeply, was carrying some material defects/improbabilities. For instance, the complainant in his cross-examination deposed the Kanta was brown coloured and computerized containing cells and its’ weighing capacity was about 05 KG while the mashir has contracted his version by deposing that Charas was weighed by the complainant on computerized Kanta and its’ capacity was about 40 KGs. Moreover, it was quite incredible and do not attract to the judicial conscience, the alleged recovered contraband material was got weighed through digital scale but there is no mention either in memo of arrest and recovery nor in FIR as to where it was weighed. Furthermore, the R.C through which the property was sent to the Chemical Laboratory does not reflects the name of a person through whom it was sent but on perusal of report of Chemical Examiner it reflects that PC Rafique had deposited the same but said PC Rafique was not examined by the prosecution for no obvious reasons, which has created further dent in the case regarding safe custody/transmission of the contraband material. Charas was said to be kept in Malkhana but no such entry of Register No.19 regarding keeping of Charas in Malkhana was brought on record. Moreover, the alleged contraband material was dispatched to the laboratory one day after its recovery but no any satisfactory explanation whatsoever has been furnished by the prosecution that where it was kept for such intervening period, which obviously lead to an adverse inference against the prosecution about the safe custody of the Charas. All these improbabilities in the case have rendered the entire claim of the police party to be highly doubtful. It is settled principle of law that when the chain of custody is broken, the Report of the Chemical Examiner loses its sanctity and cannot be relied upon safely to convict an accused. Reliance is placed on case of the State v. Imam Bakhsh (2018 SCMR-2039). However, on careful scrutiny of statement of the appellant recorded Under Section 342 Cr.PC, it surfaced that the Chemical Examiner’s report has not been put to the appellant which as per the recent dictum laid down by the Honourable Apex Court cannot be used against him.

11. Recently, the Honourable Supreme Court of Pakistan in the case of Qaiser and another v. The State(2022 SCMR 1641), has observed that “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 representative samples of the recovered narcotics, their dispatch to the Malkhana and further dispatch to the testing laboratory. 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 2001), 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 safe transmission of the representative samples, makes the report of chemical examiner worthless and un-reliable for justifying conviction of the accused. Such lapse on the part of the prosecution would cast doubt and would vitiate the conclusiveness and reliability of the report of chemical examiner. Reliance can be made upon the judgments rendered by three members benches of this court i.e. Ikramulah v. The State (2015 SCMR 1002), The State v. Imam Bakhsh (2018 S'CMR 2039), Abdul Ghani v. The State (2019 SCMR 608), Kamran Shah v.The State (2019 SCMR 1217), Mst. Razia Sultana v.TheState (2019 SCMR 1300), Faizan Ali v. The State (2019 SCMR 1649), Zahir Shah alias Shat v.State through AG KPK (2019 SCMR 2004), Haji Nawaz v. The State (2020 SCMR 687), Qaiser Khan v.The State (2021 SCMR 363), Mst. Sakina Ramzan v.The State (2021 SCMR 451), Zubair Khan v.The State (2021 SCMR 492), Gulzar v.The State (2021 SCMR 380).”

12. It is also an established principle of law that an accused person is presumed to be innocent until and unless he is proved guilty beyond a reasonable doubt and this presumption of his innocence continues until the prosecution succeeds in proving the charge against him beyond a reasonable doubt on the basis of legally admissible, confidence-inspiring, trustworthy and reliable evidence. It has also been held by the Superior Courts that conviction must be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. The rule of giving the benefit of doubt to an accused person is essentially a rule of caution and prudence and is deep-rooted in our jurisprudence for the safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (Peace Be Upon Him): “Avert punishments (hudood) when there are doubts” and “Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader's mistake in pardon is better than his mistake in punishment.” The Hon’ble Supreme Court has quoted probably the latter part of the last-mentioned saying of the Holy Prophet (PBUH) in the case of Ayub Masih v. State (PLD 2002 SC 1048) "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent." The same principle has also been followed by the Honourable Supreme Court of Pakistan in the recent Judgment in the case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600). It is also settled principle of law that if a single circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez v. The State reported as (1995 SCMR-1345), wherein the Honourable Supreme Court of Pakistan has held as under:-

"The concept of benefit of doubt to an accused person is deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is any circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right".

13. For what has been discussed above, we are of the unanimous view that the prosecution has miserably failed to establish the guilt against present appellant beyond shadow of reasonable doubt. Consequently, the conviction and sentence awarded to the appellant by learned trial Court vide impugned judgment are set aside and the instant appeal is allowed and he is acquitted of the charge by extending him benefit of such doubt. Office is directed to issue release writ, directing the concerned jail authority to release the appellant forthwith in the present case if he is no more required in any other custody case.

14. The instant Criminal Appeal is disposed of accordingly together with listed application.

JUDGE

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