THE HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No. 401 of 2022
Present: Mr. Justice Naimatullah
Phulpoto
Mr. Justice Amjad
Ali Sahito
Appellant
: Abdul Basit
through Syed Saaduudin Shah advocate
Respondent : The State through Peer Riaz
Muhammad Shah DAG
Shahid Ali Qureshi Special Prosecutor Customs
Date of Hearing : 23.11.2023
Date of
judgment : 23.11.2023
JUDGMENT
NAIMATULLAH
PHULPOTO, J.-
Abdul
Basit was tried by learned Judge, Special Court-II
(CNS) Karachi in Special Case No. 18 of 2020 for offence under Section 9(c) of
CNS Act 1997. After regular trial, vide judgment dated 06.06.2022, appellant was
convicted under section 9(c) of CNS Act 1997 and sentenced to undergo imprisonment
for life and to pay fine of Rs.300,000/- and in default in payment of fine, he
was ordered to undergo imprisonment for 03 years. Appellant was extended
benefit of section 382(b) Cr.P.C.
2. Brief facts of the prosecution case are
that on 01.02.2020 at about 6:00 p.m. at 71 Wing Sachal
Ranger, RCD Highway, Customs Mochko Chowk point, Karachi Rangers stopped a coach and searched
the passengers travelling in it. Appellant was found in suspicion manner and
from his possession Ranger officials recovered 4 packets containing opium
weighing 38 K.G. Appellant was got down from the coach and his custody was
handed over to the Custom Officials, hence FIR bearing Crime No. ASO-59/2020-HQ
for offence under Section 9(c) of the CNS Act 1997 was registered at PS Customs
Karachi on behalf of State.
3. During investigation, opium was sent to
chemical examiner on 10.02.2020; positive report was received. On conclusion of
usual investigation, final report was submitted against the accused under the
above referred section.
4. Trial Court framed Charge against appellant
under the above referred sections at Ex.02, to which he pleaded not guilty and
claimed trial.
5. At trial, prosecution examined P.W-01/Complainant
P.O Rana Azeem Sarwar, P.W-02 mashir Sepoy Noshad, P.W-03 I.O/PO Shahbaz Ahmed, P.W-04 SI Tayyab
Uddin of Rangers and P.W-05 IPS Azmat Hussain, who
produced the relevant documents.
6. Trial Court recorded statement of
accused/appellant under Section 342 Cr.P.C. Appellant claimed his false implication
in the present case. Appellant raised plea that he was picked up by the Rangers
from his house two days prior to the registration of FIR and opium has been
foisted upon him. However, neither he examined himself on oath under section
340(2) Cr.P.C in disproof of the prosecution allegations nor led any evidence
in his defence.
7. Trial Court after hearing the learned
counsel for the appellant, prosecutor and while assessing the evidence, by
judgment dated 06.06.2022, convicted and sentenced the appellant as stated
above. Hence, the appellant being dissatisfied with the judgment of conviction
against him has 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 06.06.2022 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 appellant mainly
contended that according to the case of prosecution opium was recovered from
the appellant while he was travelling in coach on 01.02.2020 at 6:00 p.m.
whereas, mashirnama of recovery was prepared on 01.02.2020 at 1:00 a.m. at ASO
Head Quarters, NMB, Wharf, Karachi; that driver and cleaner of coach were not
examined by the I.O; that no Roznamcha entry of
Rangers is produced before trial Court; that there is delay of 09 days in
sending opium to the chemical examiner for which no plausible explanation has
been furnished; that safe custody and safe transmission of the opium to the
chemical examiner has also not been established before trial Court; that
according to the case of prosecution, Rangers officials informed the recovery
of opium from the appellant to the Head Quarters, but no communication record
was produced before the trial Court; that ticket of the appellant was also not
produced by the I.O before the trial Court. Lastly, it is contended that opium
has been foisted upon the appellant by the Rangers due to enmity. In support of
his contentions, reliance is placed upon an unreported judgment dated
13.12.2022 passed by Apex Court in Criminal Appeal No. 48 of 2021 (re: Ahmed
Ali and another vs. The State) and an unreported judgment passed by this Court
in Criminal Appeal No. 470/2021.
10. DAG duly assisted by advocate for Customs
argued that evidence of Rangers and Custom officials was quite reliable and
confidence inspiring and trail court has rightly relied upon their evidence. It
is further submitted that evidence of the officials is corroborated by positive
report of chemical examiner. As regards to the safe custody and safe
transmission to the expert is concerned, DAG submits that delay has been fully
explained and there was no allegation of tempering with the substance during
custody at the warehouse of the Customs. Lastly, it is argued that appellant
has raised a specific plea that he was picked up by Rangers prior to the
registration of the FIR but said plea was not substantiated at trial.
11. We have carefully heard learned counsel
for the parties and have re-examined the entire evidence. We have come to the conclusion that prosecution has failed to
prove its case against the appellant for the reasons that it is a case of prosecution that appellant was travelling in coach on
01.02.2020 and he was caught hold by the Rangers at 6:00 p.m. in the suspicion
manner and recovery of opium was effected from his possession, but neither
driver nor cleaner or any passenger of said coach was examined by the I.O
during investigation. Even ticket of the appellant was not recovered from the
possession of the appellant. We have further noticed that mashirnama of seizure
(Ex.4/C) was prepared on 02.02.2020 at 1:00 a.m. at ASO Head Quarters, NMB
Wharf, Karachi which clearly suggests it was not prepared soonafter
the recovery but was prepared at ASO Head Quarters NMB Wharf and not at the
place of incident. So far as safe custody and safe transmission of the alleged
recovered narcotics is concerned, it is the case of the prosecution that opium
was kept in safe custody and it was safely transmitted to the chemical examiner
and in support of such claim, prosecution examined P.W-05 Azmat
Hussain IPS Customs/ Incharge of State Warehouse
Custom. However, we found evidence of P.W-05 Azmat
Hussain Incharge of State warehouse Customs is of no
help to the case of prosecution as during his cross examination he stated that
case property was handed over to him by Rana Azeem on 20.02.2020 i.e. after 19 days of its recovery,
whereas, P.W-01/ Rana Azeem
Sarwar P.O Customs in his cross examination has stated
that case property was kept at Detention Room of ASO H.Q. Prosecution has
failed to examine Incharge of Detention Room of ASO
H.Q in order to prove that narcotics was kept in safe custody. Record further reflects that opium was
recovered on 01.02.2020, whereas, it was received in the official of chemical
examiner on 10.02.2020 without any plausible explanation as to where these
sample parcels remained from 01.02.2020 to 10.02.2020. Thus prosecution
has failed to prove safe custody of the alleged recovered opium and its safe
transmission to the chemical examiner. It is the duty of the prosecution to establish that case property was
kept in safe custody and it was safely transmitted to the chemical examiner for
analysis. 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. It would be pertinent to mention here
that 9(c) of CNS Act carries capital punishment or imprisonment for life can be
awarded even on the testimonies of police officials, in order to bring home
guilt against an accused, it is necessary for the prosecution to prove their
case through reliable, unimpeachable and confidence inspiring evidence beyond
any reasonable doubt. The harder the punishment, the stricter the standard of
proof as held in the case of Ahmed Ali and another (supra). In the present case confidence inspiring evidence has not
been produced by the prosecution at trial. We hold that trial Court failed to
appreciate the evidence according to settled principles of law. We have also
noticed that there are material contradictions in the evidence of the
prosecution witnesses on material facts. 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. Appellant while extending benefit of
doubt has already been acquitted by this Court. These are the reasons for our
shot order announce on 23.11.2023.
JUDGE
JUDGE