IN THE COURT OF CIVIL/FAMILY JUDGE AND J

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, MIRPURKHAS

Criminal Appeal No. D-04 of 2024 (new)

Criminal Appeal No. D-35 of 2023 (old)

Present:

1. Mr. Zulfiqar Ali Sangi,J.

2. Mr. Khadim Hussain Soomro,J.

Appellants: 1. Ali Gohar s/o Muhammad Saleh.

2. Amjad Ali alias Amjadullah s/o Bhai Khan,

through Mr. Rao Faisal Ali advocate.

State: Through Mr. Shahzado Saleem,

Additional Prosecutor General, Sindh

Date of hearing: 02-07-2024

Date of Judgment: 02-07-2024

Reasons 23-07-2024

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JUDGMENT

KHADIM HUSSAIN SOOMRO. J- The appellants were tried by learned Additional Sessions Judge-I/MCTC/Special Judge for CNSA, Mirpurkhas, in Special Case No.05/2023, arising out of Crime No.62/2022, under Section 9(1)(Sr.3) CNS Amendment Act, 2022, registered at Police Station Taluka Mirpurkhas and by impugned judgment dated 31-03-2023, they have been convicted and sentenced to imprisonment for 09 years and fine of Rs.400,000/= (Four Lacs) each and in the event of failure to pay the fine, they shall additionally undergo simple imprisonment for a period of two years more.

2. The facts of the prosecution case, in a nutshell, are that on 23-12-2022 at 0400 hours, complainant SIP Muhammad Yousuf Ansari, along with police officials including ASI Muhammad Rafique and HC Illahi Bux, duly armed in police uniform while snap-checking at Jara water Mirpurkhas-Umerkot road apprehended appellant Ali Gohar Mahar while appellant Amjad Ali escaped on a motorbike and recovered charas weighing 4089 grams and cash Rs.1500/= from the possession of appellant Ali Gohar Mahar. After sealing the recovered charas and preparing such a memo, they brought appellant Ali Gohar Mahar to P.S. Taluka Mirpurkhas, where he lodged an instant FIR.

3. At trial, on 14-01-2023, a charge was framed against accused persons U/S 9(1)-(Sr. No.03) CCNS Amendment Act, 2022, to which they pleaded not guilty. The prosecution examined complainant SIP Muhammad Yousuf at Ex.03, who produced a memo of arrest and recovery, departure and arrival entries and FIR at Ex.03/A to Ex.03/D. Mashir ASI Rafique Ahmed was examined at Ex.04, and he produced a memo of site inspection at Ex.04-A. PW SIP Khuda Bux (I.O) examined at Ex.05; he produced departure and arrival entries, entry of register No.19, letter addressed to the chemical examiner, sample receipt, chemical report and CRO of appellant Ali Gohar Mahar at Ex.5-A to Ex.5-G. P.W PC Shahid (dispatch official) at Ex.07. P.W WASI Arz Muhammad (in charge of Malkhana) at Ex.08. Thereafter, the learned ADPP closed the prosecution side of the evidence vide statement at Ex.09.

4. The appellants, in their statements recorded under Section 342 Cr. P.C, denied the prosecution allegations by pleading innocence; however, they did not examine themselves on oath or anyone in their defence.

5. On the conclusion of the trial, the appellants were found guilty of the above-said offence and were convicted and sentenced accordingly by the learned trial court by way of impugned judgment.

6. It is contended by learned counsel for the appellants that the appellants, being innocent, have been involved in this case falsely by the complainant at the instance of CIA police; the trial court failed to appreciate that case property, i.e. charas produced before the court was having red plastic Panni but no such description is appearing in FIR; that there was a delay of 05 days in sending the allegedly recovered chars to the chemical examiner; that there are material contradictions in the evidence of complainant and mashir, but the same was not adequately appreciated by the learned trial court; alleged place of arrest and recovery was a busy road but not a single person was associated with acting as mashir, which creates serious doubt regarding the genuineness of prosecution case; the sentence awarded to the appellants is capricious and is based on presumptions, conjectures and surmises. By contending so, he sought the acquittal of the appellants.

7. Learned Addl. P.G for the State, by supporting the impugned judgment, has sought for dismissal of the appeal.

8. We have considered the above arguments and perused the record. The careful re-appraisal of the material brought on the record entails that no doubt the complainant and his witnesses have tried to support the case. Still, their evidence, when scrutinized deeply, was found to be coupled with material contradictions, improbabilities/ infirmities, and irregularities with respect to very crucial and vital points. The roznamcha entry confirms the movement of police from one place to another. In the instant case, the original roznamcha entry has not been produced, which creates doubt in the prosecution case. P.w 1 deposed that he prepared the memo of arrest and recovery while sitting in the police mobile, whereas P.w 2, who is eye eyewitness of the incident, deposed that the memo of arrest and recovery was prepared by the complainant in the standing position.

9. The evidence of I.O. (P.W-3) SIP Khuda Bux reveals that he handed over a sealed parcel to PC Shahid on 28-12-2022, along with a letter. The letter does not show the date on which it was prepared. He deposed that he had handed over the recovered sealed parcel to PC Shahid, whereas the Malkhana incharge (PW-4), Arz Muhammad, deposed that he had handed over the sealed parcel to PC Shahid for depositing it in the office of the Chemical Examiner. It is not clear who handed over the sealed parcel to P.C Shahid, which creates a very serious doubt in the prosecution case. In the case of Qaiser and others v. The State (2022 SCMR 1641), the Supreme Court of Pakistan, in paragraph No. 4 of the judgment, has observed that in the absence of establishing secure custody and transmission, the possibility of tampering cannot be discounted. The chain of custody for sample parcels commences from the seizure of narcotics by the police, including the separation of representative samples, their dispatch to the Malkhana, and subsequent transmission to the testing laboratory. This chain of custody and transmission is crucial as it forms the foundation of the Act of 1997 and the Control of Narcotic Substances (Government Analysts) Rules 2001 (Rules 2001). It is incumbent upon the prosecution to ensure the safe and secure handling of this chain of custody, given the critical importance of the chemical examiner's report under the Act of 1997. Any breach in this chain, whether in the safe custody or transmission of representative samples, renders the chemical examiner's report unreliable and unsuitable for substantiating the conviction of the accused. Such a lapse by the prosecution introduces doubt and undermines the conclusiveness and trustworthiness of the chemical examiner's report. The relevant paragraph of the judgment is reproduced as under:-

"In absence of establishing the safe custody and safe transmission, the element of tempering cannot be excluded in this case. The chain of custody of sample parcels begins from the recovery of the narcotics by the police including the separation of representative samples of the recovered narcotics, their dispatch to the Malkhana and further dispatch to the testing laboratory. The said chain of custody and transmission was pivotal as the entire construct of the Act 1997 and the Control of Narcotic Substances (Government Analysts) Rules 2001 (Rules 20011), rests upon the report of the analyst. It is prosecutions bounded duty that such chain of custody must be safe and secure because the report of chemical examiner enjoined critical importance under the Act 1997, and the chain of custody ensure the reaching of correct representative samples to the office of chemical examiner. Any break in the chain of custody i.e. the safe custody or safe transmission of the representative samples, makes the report of chemical examiner worthless and un-reliable for justifying conviction of the accused. Such lapse on the part of the prosecution would cast doubt and would vitiate the conclusiveness and reliability of the report of chemical examiner."

10. Rule 4 of Control of Narcotics Substance (Government Analysts) Rules, 2001, states that a sealed parcel is to be dispatched for analysis under the cover of a Test Memorandum specified in Form-A at the earliest but not later than 72 hours of the seizure. In the instant case, the alleged recovery was made on 23-12-2022, but the same was sent to the chemical for a reporton 28-12-2022, after the lapse of 5 days; the prosecution has not explained such delay. No doubt the Rules cited above are not mandatory but directory in nature. However, non compliance of the rule put a havey dent on the prosecution case. In this regard, reliance can be placed on the case of Muhammad Aslam v. The State reported in 2011 SCMR 820.

11. This is an established principle of law and equity that it is better that 100 guilty persons should be let off, but one innocent person should not suffer. As the distinguished English jurist William Blackstone wrote, "Better that ten guilty persons escape than that one innocent suffer." Benjamin Franklin, who was one of the foremost figures of early American history, says, "It is better a hundred guilty persons should escape than one innocent person should suffer." After reassessing the evidence presented by the prosecution, which, as discussed above, is based on material contradictions, improbabilities/ infirmities and irregularities with respect to very crucial and vital points, we conclude that the prosecution has not proven its case against the appellant beyond a reasonable doubt and that multiple circumstances creating doubt are not required to extend the benefit of the doubt. If a single circumstance raises a reasonable doubt in the mind of a prudent person about the guilt of the accused, the accused will be entitled to such benefit not as a matter of grace and concession but as a matter of right, as has been held in the case of Tariq Pervez v. The State, reported as (1995 SCMR 1345), wherein the Honourable Supreme Court of Pakistan held as follows:

"The concept of benefit of doubt to an accused person is deep-rooted in our country for giving him If there is a situation that raises reasonable doubt in the opinion of a wise person regarding the accused's guilt, the accused will be entitled to the benefit not as a matter of grace and concession, but as a matter of right."The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048)." The exact same reasoning was reiterated in the case of Abdul Jabbar v. State (2019 SCMR 129) when the apex court held that once a single loophole is observed in a case presented by the prosecution, such as a discrepancy between the ocular account and medical evidence or the presence of doubtful eyewitnesses, the benefit of such loophole or lacuna in the prosecution's case automatically goes in favour of an accused."

12. It is also a well-established principle of criminal administration of justice that no conviction may be handed to an accused unless and until the prosecution presents credible, trustworthy, and unimpeachable evidence with no contradiction throwing doubt on the validity of the prosecution account. In the current instance, we believe that the prosecution's account is surrounded by dense mists of doubt and that the learned trial Court did not examine the evidence in its real context, arriving at an incorrect result by finding the appellants are guilty of the charge. As a result, and for the foregoing reasons, the conviction and sentence awarded by the learned trial Court against the appellants is not sustainable. Consequently, the appeal was allowed by a short order dated 02.07.2024, whereby the appellants Ali Ghoar and Amjad Ali were acquitted of the charge, and these are the reasons for the above-mentioned short order.

Judge