THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 563 of 2022

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Khadim Hussain Tunio

Appellant : Maqsood Ahmed through Mr. Shoukat Hayat advocate

Respondent : The State through Mr. Khadim Hussain Addl. P.G

Date of Hearing : 07.03.2024

Date of Judgment : 07.03.2024

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Maqsood Ahmed appellant was tried by learned I-Additional Sessions Judge/Special Court (CNS), Karachi Central in Special Case No. 565 of 2022 for offence under Section 9(c) of CNS Act 1997. After regular trial, vide judgment dated 07.09.2022, appellant was convicted under section 9(c) of CNS Act 1997 and sentenced to undergo 10 years R.I and to pay fine of Rs.100,000/- and in default in payment of fine, he was ordered to undergo S.I for 03 months. Appellant was extended benefit of section 382(b) Cr.P.C.

2. Brief facts of the prosecution case are that on 22.03.2022 at 1630 hours, SIP Allah Diwayo of PS Bilal Colony along with his subordinate staff during patrolling arrested accused Maqsood Ahmed and recovered from his possession 1100 grams of Charas, cash of Rs.200/- and 20 mobile phones in presence of mashirs. Mashirnama of arrest and recovery was prepared in presence of police constables/mashirs. Thereafter, accused and case property were brought to the police station where FIR vide Crime No. 196/2022 under Section 9(c) of CNS Act, 1997 was registered on behalf of state.

3. During investigation, charas was sent to chemical examiner for analysis 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 and denied the prosecution allegations. Further raised plea that his son has also been falsely challaned by police before Anti-Terrorism Court. 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 07.09.2022, 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. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 07.09.2022 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9. Learned advocate for the appellant mainly argued that P.W-04 SIP Allah Diwayo no where has deposed that he deposited Charas in the Malkhana of the police station; that P.W-02 mashir/HC Abdul Quddus has also not deposed that charas was deposited in the Malkhana of the police station, as such, it is argued that prosecution has failed to prove safe custody and safe transmission of the charas to the chemical examiner. It is further argued that according to the prosecution case 20 cellular phones were recovered from the possession of the appellant and the report collected by the I.O from expert is not adverse to the appellant. It is further submitted that defence plea raised by the appellant during trial that before his arrest, he was taken by SHO PS Sir Syed from his mobile shop along with mobiles and charas was foisted upon him. In order to substantiate such contentions, learned counsel for the appellant referred to the applications moved by the appellant to SHO and SSP concerned, which are part of the R&Ps. However, he argued that trial Court has failed to consider such defence plea raised by the appellant. Lastly, it is argued that prosecution has failed to prove its’ case against the appellant and prayed for acquittal of the appellant in this case.

10. Mr. Khadim Hussain Addl. P.G argued that evidence of police officials is reliable and confidence inspiring and report of chemical examiner is positive. Addl. P.G further argued that entry No.19 of the Malkhana Register has been produced during trial and Incharge of the Malkhana has also been examined by the prosecution, prosecution has established safe custody and safe transmission of the charas to expert. He prayed for dismissal of the appeal.

11. Re-examination of evidence of SIP Allah Diwayo P.W-04, it appears that said SIP along with his subordinate staff left for patrolling on 22.03.2022 at 1000 hours, when reached at abandoned road at 1630 hours, appellant was found in suspicious manner and he was caught hold and his personal search was conducted and one black bag was recovered from him, it contained a slab of charas weighing 1100 grams. During personal search, it is stated that 20 mobile phones were also recovered from the bag; charas was sealed by above named SIP in presence of mashirs namely HC Abdul Quddus and Maidan Ali; case property was sealed. Thereafter, accused and case property were brought at P.S where FIR vide Crime No. 196/2022 for offence under Section 9(c) of CNS Act 1997 was lodged against the appellant. H.C Abdul Quddus P.W-02 has deposed that he was made mashir of the arrest and recovery on 22.03.2022. Thereafter, accused and case property were brought at P.S Bilal Colony where SIP Allah Diwayo lodged FIR on behalf of state. Neither SIP Allah Diwayo nor H.C Abdul Quddus have deposed before the trial Court that charas was handed over to Head Moharir of the police station. Head Moharir has also been examined by the prosecution as P.W-03 before trial Court. He has also not deposed that from whom he received the parcel of charas for depositing the same in Malkhana. We have come to the conclusion that prosecution utterly failed to prove safe custody and safe transmission of the charas from the spot of recovery till its receipt by chemical examiner. This chain of custody is fundamental as the report of Government Analyst is the main evidence for the purpose of conviction. Prosecution must establish that chain of custody was unbroken, safe and secure but in the present case safe custody and safe transmission could not be established as stated above. Thus, conviction recorded by trial Court is not sustainable under the law as held in the case of Zahir Shah alias Shat vs. The State through Advocate General Khyber Pakhtunkhawa (2019 SCMR 2004). Relevant portion is reproduced as under:

“………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……..”

12. Admittedly, defence version has not been considered by the trial Court. Overall, putting two versions in juxtaposition allows that more comprehensive examination and can be powerful tool for the courts to makes their observation more effectively. Unfortunately it was not done by the trial Court.

13. 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).

14. 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 Maqsood Ahmed son of Mqbool Ahmed is acquitted of the charge. He shall be released forthwith, if not required to be detained in any other custody case.

JUDGE

JUDGE