THE HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No. 157 of 2023
Present: Mr.
Justice Naimatullah Phulpoto
Justice Mrs. Kausar Sultana Hussain
Appellant
: Abdul Qasim through Mr. Saleem Ahmed advocate
Respondent : The State through Mr. Ali Haider Saleem Addl. P.G
Date of Hearing : 20.09.2023
Date of
judgment : 20.09.2023
JUDGMENT
NAIMATULLAH
PHULPOTO, J.- Abdul Qasim appellant
was tried by learned I-Additional Sessions Judge/Special Court for CNS, Karachi
Central for offence under Section 9(b) of CNS Act 1997. After regular trial,
vide judgment dated 07.02.2023, appellant was convicted under section 9(b) of
CNS Act 1997 and sentenced to 05 years R.I and to pay fine of Rs.40,000/- and
in default in payment of fine, he was ordered to undergo S.I for 15 months.
Appellant was extended benefit of section 382(b) Cr.P.C.
2. Brief facts of the prosecution case are
that on 20.05.2022 at 0050 hours, SIP Aga Madad Ali along with his subordinate
staff left P.S for patrolling. During patrolling, police received spy
information that a person was standing near Eid Gah ground, Nazimabad No.3 in
suspicious manner. Police party reached at the pointed place and found a person
standing in suspicious manner, he was caught hold and upon personal search,
recovered 220 grams of charas from his possession, cell phone and cash of
Rs.120/-. Mashirnama of arrest and recovery of charas was prepared in presence
of mashirs namely PCs Ariz and Tariq Khan. Thereafter, accused and case
property were brought at P.S where FIR No. 245/2022 u/s 9(b) 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.08. 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 assessing the evidence, by
judgment dated 07.02.2023, 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. Learned advocate for the appellant
mainly argued that it was a case of spy information, but SIP Aga Madad Ali failed
to associate any independent person to witness recovery proceedings; that in
the evidence of SIP Aga Madad Ali it is not mentioned that charas was handed
over to WHC for keeping it in safe custody; that defence plea raised by the
appellant was not discussed by the trial Court while assessing the prosecution
evidence; that there was delay in sending the charas to the chemical examiner.
Lastly, it is argued that prosecution has failed to prove safe custody and safe
transmission of charas to the chemical examiner and prosecution case is
doubtful. 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-assessed the entire prosecution
evidence minutely and have come to the conclusion that prosecution had failed
to prove it’s case for the reasons that it was a case of spy information, no
private person was associated to act as mashir. We have perused the evidence of
SIP Aga Madad Ali, according to him, after arrest and recovery, appellant and
case property were brought to Police station and lodged the FIR, but no where,
it was mentioned by him that he handed over case property/ charas to WHC for
safe custody in the Malkhana of the police station. It is the case of the
prosecution that appellant was selling charas, but it was mid night time and no
purchaser was found around the place of arrest of appellant. SIP Mujahid in his
cross-examination admitted that appellant was medically examined by the MLO and
noted injuries on his person but SIP Madad Ali Shah suppressed this fact in his
evidence. We have re-examined the entire evidence and found that the prosecution
has also failed to prove safe custody and safe transmission of the charas to
the chemical examiner for the reasons that ASIP Faisal Luqman stated that
charas was handed over to the I.O on 21.05.2022, but according to the report of
the chemical examiner, the same was received in his office on 23.05.2022 and prosecution is silent as to where
remained these sample parcels during this period, as such, element of tampering
with cannot be ruled out. 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 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