IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Jail Appeal No. D-10 of 2021

PRESENT:

Mr. Justice Omar Sial,

Mr. Justice Khalid Hussain Shahani,

Appellant : Samiullah Pathan,

through M/s Irfan Badar Abbasi and Muhammad

Ayaz Shaikh, Advocates.

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

Additional Prosecutor General.

Date of hearing : 25.02.2025.

Date of Judgment : 04.03.2025.

J U D G M E N T

Omar Sial, J.- A police party of the Excise police station, Jacobabad, intercepted a truck being driven by Samiullah Pathan (the appellant) on 22.06.2020. A search of the truck revealed 660 kilograms of charas hidden in a secret cavity. Samiullah was arrested, and F.I.R. No. 1 of 2020 was registered under section 9(c) of the C.N.S. Act, 1997.

2. Samiullah pleaded ‘not guilty’ and claimed to be tried. The prosecution examined Assistant E.T.O. Ziaul Islam (the complainant and the investigating officer) as its first witness. The second witness was E.C. Asif Majeed, who witnessed the arrest and recovery of the narcotics and also took the samples of the seized narcotics to the chemical analyst. In his section 342 Cr.P.C. statement, the appellant professed innocence.

3. At the end of the trial, the learned Special Judge (C.N.S.) Jacobabad convicted the appellant and sentenced him to life imprisonment and a fine of Rs. 500,000.

4. At the very outset, the learned counsel for the appellant argued that conviction could not be sustained as safe custody and transmission of narcotics were not proved at trial. The learned Additional Prosecutor General most reluctantly agreed that the maalkhana in charge had not been examined by the prosecution but supported the impugned judgment that a very high quantity of charas had been recovered.

5. We have heard the learned counsel and the learned Additional Prosecutor General, reviewed the record, and re-assessed the evidence. Our findings and observations are as follows.

6. The record reflects that the seizure was made at 7:00 p.m. on 22.06.2020. The seized property was supposedly deposited at the maalkhana. The property was taken out on 28.06.2020, given to E.C. Asif Majeed to take to the laboratory, and reached the laboratory the next day, i.e., on 29.06.2020. The maalkhana in charge was not examined at trial. The Supreme Court, in a series of cases, has held that proving an unbroken chain of safe custody and transmission must necessarily be established if conviction is to be sustained.

7. 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). Other judgments of the Supreme Court on this aspect are referred to in the decisions mentioned above; hence, for brevity, they are not being reproduced here.

8. In the present case, the secure transmission was demonstrated, but safe custody was not proved as the maalkhana in charge did not come in as a witness. 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. What also remained unexplained at trial was that if Asif Majeed left Jacobabad for Karachi by car with the samples at 6:00 a.m. on 28.06.2020, then where and how did he keep the narcotics overnight? It was not until the next day that the samples were deposited at the chemical laboratory. The officers making the recovery made sampling errors and could not establish the appellant’s link with the truck. We have not delved deeper into these aspects because safe custody and transmission were not proved at trial, making the conviction unsustainable.

10. As regards the learned Additional Prosecutor General’s submission that as a heavy quantity of narcotics was recovered, no leniency should be shown, we are of the view that following the law as clarified and enunciated by the Supreme Court is not leniency but a duty of all courts to follow in letter and spirit. It has been for several years now that the Supreme Court and the High Courts have been reiterating the importance of proving safe custody and transmission, yet certain law enforcement agencies and the prosecution continue to err in this regard. The fact that a heavy quantity of narcotics was seized is not ground or argument to defy what the Supreme Court has laid down.

11. In a recent judgment passed by this same Bench, we requested the Federal and Provincial governments to take note of this recurring prosecution lapse, which enables many offenders to take advantage.

12. Given the above, as an unbroken chain of safe custody and transmission was not established or proved at trial, a conviction cannot be sustained. The appeal is therefore allowed, and the appellant is acquitted of the charge. He may be released if not required in any other custody case.

JUDGE

Qazi Tahir PA/*