THE HIGH COURT OF SINDH AT KARACHI

 

Criminal Jail Appeal No.780 of 2022

 

Present:         Mr. Justice Naimatullah Phulpoto

                                                                                   Justice Mrs. Kausar Sultana Hussain

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Appellant                  :           Abdul Ghaffar alias Ghaffar son of Zulfiqar Umrani

 

 

Respondent               :           The State through Mr. Ali Haider Saleem, Additional Prosecutor General

 

Date of Hearing        :          07.08.2023

 

Date of Judgment     :          07.08.2023

 

 

JUDGMENT

 

 

NAIMATULLAH PHULPOTO, J.--  Abdul Ghaffar alias Ghaffar son of Zulfiqar Umrani appellant was tried by learned Special Judge, Control of Narcotic Substances-I/Model Criminal Trial Court, Thatta in Special Case No.08/2022 for offence under 9(b) of the Control of Narcotic Substances Act, 1997. After regular trial, appellant was found guilty and was convicted under section 9(b) of the Control of Narcotic Substances Act, 1997 and sentenced to One (1) year and three (3) months R.I. with fine of Rs.9000/-, in default whereof to undergo S.I. for three months and 15 days more. The appellant being dissatisfied, filed appeal through Superintendent, Central Prison, Hyderabad, it was admitted to regular hearing.

2.         Jail Roll dated 05.05.2023 is received, which shows that appellant Abdul Ghaffar alias Ghaffar son of Zulfiqar Umrani has been released from Central Prison, Hyderabad on 04.05.2023, on completion of his sentence.

3.         Learned Additional Prosecutor General Sindh submits that the appeal has become infructuous.

4.         Report reflects that the appellant has been released from jail on 04.05.2023. Since then, he did not appear before this Court to contest the appeal on merits. We have re-examined the evidence recorded by the trial Court and the impugned judgment. It appears that the trial Court in para No.15 of the judgment has assigned following reasons for convicting the appellant:

“15.    The outcome of my above discussion is that, the prosecution with cogent, well standard and unimpeachable character evidence has succeeded to establish the guilt of both the accused at home. No reasons of whatsoever have been advanced for false implication of accused persons in this crime by the police but both accused only claims that they are innocent and noting was recovered from their possession, however, no strong proof for false arraignment whatsoever has been advanced by both the accused and such plea of false implication cannot be considered without substantial piece of evidence. No doubt, whole recovered property was sent to the office of chemical examiner with the delay of three days, therefore, it create doubt in the prosecution case but in this context, it may be stated that main purpose to send the recovered substance was charas or otherwise. In spite of delay the chemical report is positive with all clarity which supports the prosecution version, however defence side has not challenged the validity of said chemical report.”

 

5.         On our re-assessment of the evidence, we have come to the conclusion that the prosecution utterly failed to prove its case against the appellant. Trial Court in its judgment has mentioned that there was delay in sending charas to the chemical examiner, which creates doubt in the case of prosecution. It is sufficient to allow this appeal. Moreover, evidence with regard to the safe custody and safe transmission of charas to the chemical examiner before the trial Court has not been established. In the recent judgment 2023 SCMR 1144 (Said Wazir vs. State), the Hon’ble Supreme Court of Pakistan has held as under:

“It has been observed by us that recovery was effected on 09.06.2016 whereas sample parcels were received in the office of chemical examiner on 13.06.2016 without any plausible explanation as to where remain these sample parcels from 09.06.2016 to 13.06.2016. The safe custody and safe transmission of the sealed sample parcels has also not been established by the prosecution as Moharrar, who kept the sample parcel in the Malkhana and the concerned Constable (FC No. 1374), who delivered the sample parcel to the office of Forensic Science Laboratory, were not produced by the prosecution. Even the prosecution failed to prove the ownership of the vehicle. This court in the cases of Qaiser Khan v. The State through Advocate General, Khyber Pakhtunkhwa, Peshawar (2021 SCMR 363), Mst. Razia Sultana v. The State and another (2019 SCMR 1300), The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), Ikramullah and others v. The State (2015 SCMR 1002) and Amjad Ali v. The State (2012 SCMR 577) has held that in a case containing the above mentioned defect on the part of the prosecution, it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond any reasonable doubt.”

 

6.         For the above stated reasons, we have come to the conclusion that the prosecution has failed to prove its case and trial Court has failed to appreciate the evidence according to the settled principles of law, therefore, the appeal is allowed. Conviction and sentence recorded by the trial Court is set aside. Appellant is acquitted. It may be observed that the appellant has already been released from the jail on conclusion of sentence.

 

J U D G E

 

                                                                                                J U D G E  

 Gulsher/PS