IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Appeal No. D-87 of 2019

PRESENT:

Mr. Justice Omar Sial,

Mr. Justice Khalid Hussain Shahani,

Appellant : Moosa Jan Pathan,

through Mr. Muhammad Ali Napar, Advocate.

Respondent : The State, through Mr. Ali Anwar Kandhro,

Additional Prosecutor General.

Date of hearing : 18.02.2025.

Date of Judgment : 27.02.2025.

J U D G M E N T

Omar Sial, J.- A police party led by A.S.I Ashiq Ali Lashari was on routine patrol duty on 17.09.2019 when it received spy information that a car coming from Balochistan was transporting charas and opium. Soon after that, the identified car was seen and stopped. The appellant, Moosa Jan, was driving the car, and upon checking the car, 60 kilograms of charas and 32 kilograms of opium were recovered. The car and the narcotics were seized, and Moosa Jan was arrested. FIR No. 162/2019 was registered under section 9-C of the CNS Act 1997 at the Saddar Police Station in Jacobabad.

2. Moosa Jan pleaded ‘not guilty’ and claimed trial. The prosecution examined the complainant, A.S.I Ashiq Ali Lashari, at trial as its first witness. The second prosecution witness was P.C. Israr Ahmed Abro. He was the policeman who witnessed the arrest and recovery. Inspector Shabbir Ahmed, the third prosecution witness, was the investigating officer. The fourth and last witness for the prosecution was P.C. Saeed Ahmed Mangrio. He was the policeman who took the seized narcotics from the police station to the chemical laboratory for analysis.

3. In his section 342 Cr.P.C statement, the appellant professed innocence and said that this false case was registered on the directions of the S.S.P. Jacobabad to whom another agency had handed over the appellant after being in their custody for two months. The 1st Additional Sessions Judge, Jacobabad, on 30.11.2019, found the appellant guilty and sentenced him to suffer rigorous imprisonment for life and pay a fine of Rs. 100,000.

4. We have heard the learned counsel for the appellant and the learned Additional Prosecutor General. Our observations and findings are as follows.

5. The learned counsel for the appellant argued that the prosecution failed to establish and prove safe custody and transmission of the narcotics, so the conviction could not be sustained. He cited several Supreme Court judgments in support of his argument.

6. The record reflects that Moosa Jan was arrested on 17.09.2019, and the case property was handed over to S.I. Shabbir Ahmed Saihto, who then handed it over to the maalkhana in charge. On the next date, that is, 18.09.2019, he gave the narcotics to P.C. Saeed Ahmed for onward deposit at the chemical laboratory. While the prosecution examined Saeed Ahmed Mangrio, i.e., the courier, the maalkhana in charge was not examined at trial. Therefore, the chain of safe custody and transmission from the time of seizure until the time of deposit in the chemical laboratory was broken. In a series of cases, the Supreme Court has held that conviction can not be sustained if the chain is broken.

7. On the contrary, the learned Additional Prosecutor General conceded that the in charge of the maalkhana where the narcotics were deposited was not examined at trial. However, his stance was that the non-appearance at the trial of the maalkhana in charge would not adversely impact the prosecution case. He relied on a judgment reported as Zain Ali vs The State (2023 SCMR 1669). The learned prosecutor is correct that the Supreme Court took a different view in this case. With much respect and humility, however, we are swayed towards the series of judgments passed by the Supreme Court before and after the judgment in the Zain Ali case. Reference may be made to Sarfaraz Ahmed vs The State (2024 SCMR 1571), Asif Ali vs. The State (2024 SCMR 1408), Said Wazir vs. The State (2023 SCMR 1144), Javed Iqbal vs. The State (2023 SCMR 139). We have not mentioned judgments passed before the Zain Ali case for brevity. All these judgments are referred to in the decisions mentioned above.

8. In the Sarfaraz Ahmed case (supra), it has been held that:

9. In order to prove the safe custody of the parcels of the contraband, Moharrar (Abdul Qayyum) of PS Kalat has not been produced at the trial by the prosecution. In the cases of "Said Wazir v. The State", "Muhammad Shoaib v. The State" and "Ishaq v. The State" it has been held that due to non-appearance of the Moharrar at the trial, the safe custody of the parcel of the contraband as well as the sample parcel has not been established by the prosecution. In the case of "Zahir Shah v. The State" it has been laid as follows by this Court:

"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 Analysis, thus, rendering it incapable of sustaining conviction."

9. Given the above, and as the maalkhana in charge was not examined at the trial, safe custody of the narcotics was not proved. The conviction can, therefore, not be sustained. There is little point in discussing other aspects of the case. The appeal is allowed, and the impugned judgment is set aside. The appellant may be released if not required in any other custody case.

JUDGE

Qazi Tahir PA/*