THE HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No. 615 of 2022
Present: Mr.
Justice Naimatullah Phulpoto
Justice Mrs. Kausar
Sultana Hussain
Appellant
: Muhammad Kashif
@ Khelo through M/s Muhammad Jamil and Sarosh Jamil advocates
Respondent : The State through Mr. Ali Haider
Saleem Addl. P.G
Date of Hearing : 11.09.2023
Date of
judgment : 11.09.2023
JUDGMENT
NAIMATULLAH
PHULPOTO, J.- Muhammad
Kashif @ Khelo was tried by
learned I-Additional Sessions Judge/ Special Court (CNS), Karachi Central for
offence under Section 9(c) of CNS Act 1997. After regular trial, vide judgment
dated 30.09.2022, appellant was convicted under section 9(c) of CNS Act 1997
and sentenced to 07 years R.I and to pay fine of Rs.100,000/- and in default in
payment of fine, he was ordered to undergo for 15 days. Appellant was extended
benefit of section 382(b) Cr.P.C.
2. Brief facts of the prosecution case leading
to the filing of instant appeal are that on 11.05.2022 at about 1130 hours, SIP
Shahid Nawaz of PS Paposh
Nagar left P.S along with his subordinate staff found appellant in suspicious
condition at the outer gate of Tanveer Shaheed Park, Paposh Nagar,
Karachi, appellant was caught hold and from his personal search white plastic
shopper containing a piece of charas wrapped in red color plastic weighing 1080
grams and cash of Rs.2600/- were recovered. Mashirnama of arrest and recovery of charas was
prepared in presence of mashirs. Thereafter, accused and case property were
brought at P.S where FIR No. 167/2022 u/s 9(c) of CNS Act 1997 was lodged
against the accused on behalf of state.
3. During investigation, charas was sent
to chemical examiner and positive report was received. On conclusion of usual 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 four 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.8. Appellant claimed his false
implication in the present case. 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 30.09.2022, 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. Learned advocate for the appellant
mainly argued that charas has been foisted upon the appellant by the police;
that prosecution has failed to prove safe custody and safe transmission of the
alleged recovered charas to the chemical examiner; that there are material
contradictions in the evidence of the prosecution witnesses; that allegedly it
was day time and private persons were present at the park from where the
appellant was arrested, but no private person was associated to witness the
arrest and recovery. Lastly, it is argued that prosecution has failed to prove its
case against the appellant beyond shadow of reasonable doubt. In support of his
submissions, reliance is placed upon the case of Zahir Shah alias Shat vs. The State through
Advocate General Khyber Pakhtunkhawa (2019 SCMR 2004).
9. Learned Addl. P.G for the state argued
that charas recovered from the possession of the appellant was sent to chemical
examiner and report of chemical examiner was positive. He further argued that evidence
of police official was reliable and confidence inspiring. Lastly, argued that prosecution
has proved its case against the appellant and prayed for dismissal of the
appeal.
10. After hearing learned counsel for the
parties, we have re-examined the entire prosecution
evidence minutely and have come to the conclusion that prosecution had failed
to prove safe custody and safe transmission of charas to the chemical examiner
as P.W-1 SIP Shahid Nawaz, who was head of the police
party, deposed that from personal search of appellant 1080 grams charas was
recovered, memo of arrest and recovery was prepared in presence of P.Cs. Babo Abdul Rauf and Ishaq Khan. Thereafter, accused and case property were
brought at P.S. However, evidence of SIP Shahid Nawaz
is silent in respect of handing over of recovered charas to the incharge Malkhana of the police
station. Rightly it is argued before us that safe custody and safe transmission
of the charas have not been proved. Learned Addl. P.G has also conceded that
the prosecution has failed to prove safe custody and safe transmission before
trial court. It is settled law 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. 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……..”
11. We have also noticed that appellant was
arrested during day time at outer gate of the park but no private person was
associated by the police to witness the arrest and recovery. 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).
12. 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,
instant 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