THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 72 of 2022

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Amjad Ali Sahito

Appellants : Rahamuddin and Abdul Saeed through Mr. Muhammad Farooq advocate

Respondent : The State through Mr. Ali Haider Saleem Addl. P.G

Date of Hearing : 23.10.2023

Date of Judgment : 23.10.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Rahamuddin and Abdul Saeed appellants were tried by learned VIII-Additional Sessions Judge/MCTC Karachi West for offence under Section 9(c) of CNS Act 1997. After regular trial, vide judgment dated 12.01.2022, appellants were convicted under section 9(c) of CNS Act 1997 and sentenced to life imprisonment each and to pay fine of Rs.100,000/- each and in default in payment of fine, they were ordered to undergo S.I for 06 months. Appellants were extended benefit of section 382(b) Cr.P.C.

2. Brief facts of the prosecution case are that on 09.11.2021, SIP Fazal-ur-Rehman of SIU, along with his subordinate staff, left P.S for patrolling in the area. During patrolling, police received spy information that some persons were supplying charas from Balochistan in rickshaw at MPR colony Peerabad, Karachi. On receipt of such information, police reached at the pointed place at 0100 hours and on the pointation of spy informer, stopped a rickshaw wherein one person was found sitting on the rear seat. On inquiry driver of rickshaw disclosed his name as Abdul Saeed, whereas, other accused disclosed his name as Raheemuddin. On search of rickshaw, SIP recovered two plastic bags containing white 15 packets of charas wrapped in yellow color tape in each bag; weight of each packet was 1200 grams, total weight of recovered charas became 36 K.G. SIP Fazal-ur-Rehman prepared mashirnama of arrest and recovery in presence of mashirs namely Muhammad Shakeel and HC Muhammad Sajid, sealed the case property and brought accused and case property to the police station where FIR vide Crime No. 360/2022 under Section 9(c) of CNS Act, 1997 was registered on behalf of state.

3. During investigation, charas was sent to chemical examiner and positive report was received. On conclusion of investigation, final report was submitted against the appellant under the above referred section.

4. Trial Court framed Charge against appellant under the above referred sections at Ex.02, to which they pleaded not guilty and claimed trial.

5. At trial, prosecution examined four witnesses and positive report of the chemical examiner was produced in evidence. Thereafter, prosecution side was closed.

6. Trial Court recorded statements of accused/appellants under Section 342 Cr.P.C at Ex.8 and 9. Appellants claimed their false implication in the present case and denied the prosecution allegations. Appellants neither examined themselves on oath under section 340(2) Cr.P.C in disproof of the prosecution allegations nor led any evidence in their defence.

7. Trial Court after hearing the learned counsel for the appellant, prosecutor and while examining the evidence by judgment dated 12.01.2022, convicted and sentenced the appellants as stated above. Hence, the appellants being dissatisfied with the judgment of conviction against them have filed instant appeal.

8. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 12.01.2022 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9. Learned advocate for the appellants mainly argued that prosecution has failed to prove safe custody and safe transmission of the charas to the chemical examiner; that Head Moharir of the police station has not been examined; that first mashir who was private person has not supported the case of prosecution but even then he was not declared hostile by the prosecution. It is further submitted that there are material contradictions in the evidence of prosecution witnesses. Lastly, it is argued that prosecution has failed to prove its’ case against the appellants. In support of his contentions, reliance is placed upon the case of Subhanullah vs. The State (2022 SCMR 1052).

10. Mr. Ali Haider Saleem Addl. P.G argued that first mashir did not support the case of prosecution but other police officers have fully implicated the appellants. As regards safe custody Addl. P.G conceded that though prosecution has failed to examine Head Moharir of the police station, but prosecution examined SIP Naeemuddin Sheikh who had taken the charas to the chemical examiner for analysis and report of the chemical examiner was positive. He prayed for dismissal of the appeal.

11. After hearing learned counsel for the parties, we have re-examined the entire prosecution evidence produced before the trial Court and have come to the conclusion that prosecution has failed to prove its case against the appellants as according to prosecution evidence time of arrest and recovery was midnight and source of light was torch but said torch was not produced before the trial Court. Moreover, first mashir namely Muhammad Shakeel (Ex-3), who is private person has not supported the prosecution case. He has specifically stated before trial Court that he could not identify the accused at the time of arrest and recovery, “I could not identify the accused persons on the spot because there were masks on their faces. The police also disclosed to me that these accused persons were arrested on last night”. Even prosecution has failed to declare him hostile. Prosecution has also failed to prove safe custody transmission of the charas for the reasons that no where in the evidence of SIP Fazal-ur-Rehman, it is mention that to whom he had handed over the charas. I.O/SIP Naeemuddin Sheikh in his examination-in-chief has stated that on 10.11.2021, he received police papers, accused as well as case property and he sent the charas to the chemical examiner. However, in cross-examination, he stated that on 10.11.2021, he himself went to the office of the chemical examiner for chemical examination of the charas. However, according to the report of the chemical examiner, the charas was deposited on 11.11.2021, prosecution has failed to establish that where charas was kept for one day. Even incharge Malkhana has not been examined by the prosecution. It is an established position that the chain of safe custody and safe transmission of narcotics must be safe and secure because, the Report of Chemical Examiner enjoys very critical and pivotal importance under CNS Act and the chain of custody ensures that correct representative samples reach the office of the Chemical Examiner. Any break or gap in the chain of custody i.e., in the safe custody or safe transmission of the narcotic or its representative samples makes the report of the Chemical Examiner fail to justify conviction of the accused. The prosecution, therefore, is to establish that the chain of custody has remained unbroken, safe, secure and indisputable in order to be able to place reliance on the report of the Chemical Examiner. However, the facts of the present case reveal that the chain of custody has been compromised, therefore, reliance cannot be placed on the report of the Chemical Examiner to support conviction of the appellant. In the case of Zahir Shah alias Shat vs. The State through Advocate General Khyber Pakhtunkhawa (2019 SCMR 2004), the Apex court held that:

“………This court has repeatedly held that safe custody and safe transmission of the drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory must be satisfactorily established. This chain of custody is fundamental as the report of the Government Analyst is the main evidence for the purpose of conviction. The prosecution must establish that chain of custody was unbroken, unsuspicious, safe and secure. Any break in the chain of custody i.e., safe custody or safe transmission impairs and vitiates the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction……..”

12. Even otherwise, it is well settled that for the purposes of extending the benefit of doubt to an accused, it is not necessary that there be multiple infirmities in the prosecution case or several circumstances creating doubt. A single or slightest doubt, if found reasonable, in the prosecution case would be sufficient to entitle the accused to its benefit, not as a matter of grace and concession but as a matter of right. Reliance in this regard may be placed on the case reported as Tajamal Hussain v. the State (2022 SCMR 1567).

13. For what has been discussed above, we are of the view that the prosecution has failed to prove its’ case beyond a reasonable doubt and the benefit of doubt is extended to the appellants. Consequently, instant appeal is allowed and conviction and sentence passed by learned trial Court are hereby set aside and the appellants are acquitted of the charge. They shall be released forthwith, if not required to be detained in any other custody case.

JUDGE

JUDGE