THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 149 of 2023

Present: Mr. Justice Naimatullah Phulpoto

Justice Mrs. Kausar Sultana Hussain

Appellant : Alamzaib (Alamzail) through Syed Ehsan Raza advocate

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

Date of Hearing : 08.08.2023

Date of Judgment : 08.08.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellant Alamzail Khan was tried by learned Sessions Judge /Special Judge (CNS) Karachi South for offence under Section 9(b) of CNS Act 1997. After regular trial, vide judgment dated 02.03.2023, appellant was convicted under section 9(b) of CNS Act 1997 and sentenced to 01 year and 03 months R.I and to pay fine of Rs.9000/-and in default in payment of fine, he was ordered to undergo S.I for 03 months and 15 days. Appellant was extended benefit of section 382(b) Cr.P.C.

2. Brief facts of the prosecution case are that on 04.02.2022, ASI Imran Ahmed Khan was posted at PS Mithdar. On the said date, he along with subordinate staff left PS for patrolling in the area. During patrolling at 2230 hours, appellant appeared on motorcycle, he was signaled to stop but he did not stop and his motorcycle slipped, he fell down and sustained injuries. Police caught him hold. Appellant was found in suspicious manner, his personal search was conducted, during search from his possession Charas weighing 230 grams was recovered. ASI Imran Ahmed Khan prepared mashirnama of arrest and recovery in presence of mashirs, sealed the case property and brought accused and case property to the police station where FIR vide Crime No. 45/2022 under Section 9(b) 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 he pleaded not guilty and claimed trial.

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

6. Trial Court recorded statement of accused/appellant under Section 342 Cr.P.C at Ex.7. Appellant claimed his false implication in the present case and denied the prosecution allegations. Appellant neither 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 examining the evidence by judgment dated 02.03.2023, 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 02.03.2023 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 argued that prosecution has failed to examine the Head Moharir of police station, to whom case property was handed over by ASI for keeping in safe custody in Malkhana. 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 appellant. 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 230 grams Charas was recovered from the possession of the appellant in presence of mashirs 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 had failed to prove safe custody and safe transmission of the charas to the chemical examiner for the reasons that appellant was arrested on 24.02.2022, at the time of arrest, appellant had slipped from his motorcycle and he had sustained injuries, accused and case property were brought to the police station. It has come in evidence that case property was deposited by the I.O before chemical examiner, but to prove the safe custody and safe transmission of the charas, neither Head Moharar nor PC Rashid Mehmood, who had taken case property to the chemical examiner as deposed by the I.O have been examined . Law is very much settled that prosecution is bound to prove safe custody and safe transmission of the charas to the chemical examiner before trial Court as held in the case of Subhanullah vs. The State (2022 SCMR 1052). Relevant portion is produced as under:

“2.    After hearing the learned counsel for tile petitioner, learned counsel for the State and perusal of the available record as well as the impugned judgment it has been observed by us that prosecution has failed to establish the safe custody of sample parcels in the Malkhana as the Moharar was not produced, who allegedly kept in safe custody in Malkhana. Even Constable No. FC-410 was not produced who allegedly transmitted the sample parcels to the concerned laboratory, hence prosecution ailed to prove safe transmission of sample parcel to concerned laboratory. There is no explanation on the file for withholding such important piece of evidence which is a requirement of law in light of the judgments of this Court in the cases of Amjad Ali v. The State (2012 SCMR 577), Ikramullah and others v. The State (2015 SCMR 1002), Taimoor Khan and another v. The State and another (2016 SCMR 621), The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039) and Khair-ul-Bashar v. The State (2019 SCMR 930), wherein it has been held that in a case containing the above mentioned defect on the part of the prosecution it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond any reasonable doubt. Learned counsel for the State conceded that safe custody and safe transmission of sample parcel could not be established by the prosecution. Due to this legal defect a dent was caused to the prosecution case creating serious doubt regarding the veracity of contraband allegedly recovered from the vehicle.”

12. Due to this legal defect a dent was caused to the prosecution case creating serious doubt regarding the veracity of contraband allegedly recovered from the possession of the appellant. According to prosecution case, appellant at the time of his arrest slipped from the motorcycle and sustained injuries but there is no medical evidence to corroborate version of the police official.

13. 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 cases reported as Tajamal Hussain v. the State (2022 SCMR 1567), Sajjad Hussain v. the State (2022 SCMR 1540), Abdul Ghafoor v. the State (2022 SCMR 1527 SC), Kashif Ali v. the State (2022 SCMR 1515), Muhammad Ashraf v. the State (2022 SCMR 1328), Khalid Mehmood v. the State (2022 SCMR 1148), Muhammad Sami Ullah v. the State (2022 SCMR 998), Bashir Muhammad Khan v. the State (2022 SCMR 986), The State v. Ahmed Omer Sheikh (2021 SCMR 873), Najaf Ali Shah v. the State (2021 SCMR 736), Muhammad Imran v. the State (2020 SCMR 857), Abdul Jabbar v. the State (2019 SCMR 129), Mst. Asia Bibi v. the State (2019 PLD 64 SC), Hashim Qasim v. the State (2017 SCMR 986), Muhammad Mansha v. the State (2018 SCMR 772), Muhammad Zaman v. the State (2014 SCMR 749 SC), Khalid Mehmood v. the State (2011 SCMR 664), Muhammad Akram v. the State (2009 SCMR 230), Faheem Ahmed Farooqui v. the State (2008 SCMR 1572), Ghulam Qadir v. the State (2008 SCMR 1221) and Tariq Pervaiz v. the State (1995 SCMR 1345).

14. 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 appellant. Consequently, this appeal is allowed and conviction and sentence passed by learned trial Court are hereby set aside and the appellant is acquitted of the charge. He shall be released forthwith, if not required to be detained in any other custody case.

JUDGE

JUDGE