THE HIGH COURT OF SINDH AT KARACHI

Criminal Jail Appeal No. 04 of 2023

Present: Mr. Justice Naimatullah Phulpoto

Justice Mrs. Kausar Sultana Hussain

Appellant : Ghulam Yaseen through Mr. Abbas Hyder Gaad advocate

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

Date of Hearing : 04.10.2023

Date of judgment : 04.10.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Ghulam Yaseen appellant was tried by learned VII-Additional Sessions Judge/MCTC-II, Karachi Central for offence under Section 9(c) of CNS Act 1997. After regular trial, vide judgment dated 10.02.2022, appellant was convicted under section 9(c) of CNS Act 1997 and sentenced to 04 years and 06 months 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 04.02.2021 ASI Sajid Hussain along with his subordinate staff left P.S for patrolling. During patrolling, police received spy information that a person was selling charas at Haji Mureed Goth, Pulliya. Police party reached at the pointed place and found a person standing in suspicious manner, he was caught hold and upon personal search, recovered 1215 grams of charas from his possession as well as cash of Rs.130/-. Mashirnama of arrest and recovery of charas was prepared in presence of mashirs namely HC Tanveer and PC Zeeshan. Thereafter, accused and case property were brought at P.S where FIR No. 46/2021 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.08. Appellant raised plea that he was picked up from outside of his house by police party and demanded illegal gratification and on his refusal, police booked him 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 10.02.2022, convicted and sentenced the appellant as stated above. Hence, the appellant being dissatisfied with the judgment of conviction against him has filed instant appeal from jail.

8. Learned advocate for the appellant mainly argued that it was a case of spy information, but ASI Sajid Hussain failed to associate any independent person to witness recovery proceedings; that in the evidence of ASI Sajid Hussain stated that he handed over charas to Head Moharir for keeping it in safe custody in Malkhana but Head Moharir has not been examined by the prosecution; that defence plea raised by the appellant was not discussed by the trial Court while assessing the prosecution evidence; that there was delay of 04 days in sending the charas to the chemical examiner; that defence plea raised by the appellant was not discussed by the trial Court while assessing the prosecution evidence. 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; that prosecution has proved safe custody of charas. Lastly, argued that prosecution has proved its’ case against the appellant and prayed for dismissal of the appeal.

10. 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, but ASI Sajid Hussain had failed to associate any private person to act as mashir from Haji Mureed Goth. It is the case of the prosecution that appellant was selling charas, but no purchaser was found around the place of arrest of appellant. The prosecution has also failed to prove safe custody and safe transmission of the charas to the chemical examiner for the reasons that charas was recovered on 04.02.2021, whereas sample parcels were received in the office of chemical examiner on 08.02.2021 without any plausible explanation as to where remained these sample parcels for 04 days. The safe custody and safe transmission of the sealed sample parcels have also not been established by the prosecution as Head Moharrar to whom charas was handed over for keeping it in the Malkhana has not been examined. Perusal of extract of Registrar No.19 (Ex.6/H), reflects that no where it is mentioned that when the charas was handed over to the I.O for its safe transmission to the chemical examiner, 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 1997 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. 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