THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 71 of 2023

Present: Mr. Justice Naimatullah Phulpoto

Justice Mrs. Kausar Sultana Hussain

Appellant : Nemo for appellant Shabbir Ahmed alias Shabbira

Respondent : The State through Ms. Rahat Ahsan Addl. P.G

Date of Hearing : 27.09.2023

Date of Judgment : 27.09.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Shabbir Ahmed alias Shabbira appellant was tried by learned V-Additional Sessions Judge/MCTC Karachi East for offence under Section 9(c) of CNS Act 1997. After regular trial, vide judgment dated 12.01.2023, appellant was convicted under section 9(c) of CNS Act 1997 and sentenced to 04 years R.I and to pay fine of Rs.20,000/-and in default in payment of fine, he was ordered to undergo S.I for 05 months. Appellant was extended benefit of section 382(b) Cr.P.C.

2. Brief facts of the prosecution case are that on 08.03.2022, SIP Muhammad Ejaz Sheikh of PS PIB colony along with his subordinate staff left P.S for patrolling. During patrolling, SIP Muhammad Ejaz received spy information that a narcotics seller is available in the street of Piyala Hotel. Upon such information, police party reached at the pointed place and apprehended the appellant and recovered 2.535 K.G of charas from his possession. 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.91/2022 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 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.9. Appellant claimed his false implication in the present case and raised plea that he was picked up by Rangers on 06.03.2022 and charas was foisted upon him. 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 12.01.2023, 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. Today none appeared on behalf of the appellant. However, with the assistance of Addl. P.G for the state, we have re-assessed the entire prosecution evidence and have come to the conclusion that prosecution has utterly failed to prove its case beyond shadow of reasonable doubt for the reasons that it was a case of spy information, no private person was associated to act as mashir though place of recovery was thickly populated area. Moreover, prosecution has also failed to prove safe custody and safe transmission of the charas to the chemical examiner for the reasons that SIP Muhammad Ejaz no where in his evidence has deposed that after arrest of the appellant/accused when he brought him to the police station he deposited charas in the Malkhana. There is also no evidence that SIP Muhammad Ejaz handed over charas to the I.O of the case. The Investigating Officer had not produced the register of the Malkhana and no evidence was produced to prove safe transmission of the charas from the police station to the chemical examiner. Even Incharge of the Malkhana was also not produced to say that he kept the sample parcels in the Malkhana in safe custody. It is also shrouded in mystery as to where and in whose custody the sample parcel remained. So the safe custody and safe transmission of the sample parcels was not established by the prosecution and this defect on the part of the prosecution by itself is sufficient to extend benefit of doubt to the appellant. 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……..”

11. Even otherwise, it is well settled principle of law 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. Appellant has already been released from jail on 20.06.2023, as per jail roll dated 06.09.2023, on expiry of sentence.

JUDGE

JUDGE