IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Jail Appeal No.D-37 of 2022

BEFORE:

Mr. Justice Omer Sial,

Mr. Justice Khalid Hussain Shahani

Appellants: Muhammad Younis s/o Muhammad Yousif Brohi and Abdul Manan s/o Hazoor Bux Brohi.

Through Mr. Habibullah Ghouri, Advocate.

State: Through Mr. Ali Anwar Kandhro Additional Prosecutor General.

Date of hearing: 25-02-2025

Date of order: 06-03-2025

J U D G M E N T

Khalid Hussain Shahani, J. The appellants, Muhammad Younis and Abdul Manan, were convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997, in connection with Crime No. 43/2017 of Police Station Karim Bux. The learned 1st Additional Sessions Judge (MCTC), Jacobabad, sentenced them to rigorous imprisonment for life along with a fine of Rs. 500,000/- (five lacs) each. In the event of non-payment of the fine, they were to serve an additional one-year imprisonment. The benefit under Section 382-B of the Criminal Procedure Code was extended to the appellants.

02. The prosecution's case originated from an incident on July 07, 2017, at approximately 1500 hours, when, acting on a confidential tip-off, Inspector/SHO Arbelo Khan Bhangwar of PS Karim Bux, along with his subordinates, intercepted a silver-colored Cultus car bearing registration No. ADM-835 at Kamil Curve. Two individuals were seated in the front, and upon inspection, two white-colored bags/Bachkas, each containing 24 kg of Chars, were found in the vehicle, amounting to a total of 48 kg. Consequently, an FIR was registered.

03. During the course of investigation, the Investigating Officer, Qamaruddin, acting on the information provided by the appellants, recovered an additional 18 kg of Chars concealed within the seats of the same car, which was stationed at PS Karim Bux.

04. The appellants pleaded “not guilty” and claimed trial. The prosecution examined Inspector/SHO Arbelo Bhangwar (complainant), PC Abdul Rehman (witness to arrest and seizure), Inspector Qamaruddin (investigating officer), and PC Irfan (carrier of samples to the Chemical Lab). In their statements recorded under Section 342 Cr.P.C., the appellants denied all allegations and disclaimed ownership of the vehicle.

05. At the outset, the learned counsel for the appellants contended that the prosecution failed to establish the safe custody and transmission of the contraband from the time of seizure until its submission to the chemical laboratory. Several case precedents were cited in support of this argument.

06. The learned Additional Prosecutor General conceded, albeit reluctantly, that the prosecution had not satisfactorily proved the safe custody and transmission of the seized contraband in accordance with legal standards set by the superior judiciary.

07. A review of the record indicates that the appellants were arrested, and 48 kg of Chars was recovered from two bags in the vehicle on July 07, 2017. Out of this, 24 kg was sealed for chemical analysis. Subsequently, during the investigation, on July 09, 2017, the investigating officer recovered an additional 18 kg of Chars concealed in the vehicle’s seats, out of which 9 kg was sealed for chemical analysis. However, with an unexplained delay of four days, the sample parcels were only dispatched to the chemical laboratory on July 11, 2017, through LPC Irfan Ali. Inspector Arbelo Khan Bhangwar, in his testimony, claimed that soon after the registration of the FIR, the case property was handed over to I.O. Qamaruddin Mazari of PS R.D-44. However, the I.O. testified that he had handed over the case property, including the Chars, to the WHC of PS Karim Bux, but no official entry proving this transfer was produced. Contradicting these statements, LPC Irfan Ali testified that he received the sample parcel from the WPC of PS R.D-44, raising doubts regarding the chain of custody. Furthermore, neither the In-charge Malkhana of PS Karim Bux nor PS R.D-44 was examined, nor was Form 22.70 of Register XIX, as required under the Police Rules, 1934, produced to establish the safe custody and subsequent transmission of the contraband for chemical analysis.

08. Under Article 10-A of the Constitution of Pakistan, the right to a fair trial is an inviolable fundamental right of every accused. This constitutional safeguard mandates that the prosecution ensure the production and examination of all material witnesses. The failure to examine crucial witnesses, particularly the In-charge Malkhana, constitutes a significant legal defect that directly undermines the credibility of the prosecution’s case.

09. The august Supreme Court has consistently held that if the safe custody and transmission of seized narcotics are not proven at trial, the benefit of doubt must be extended to the accused.

10. In the case of Zahir Shah V. The state (2019 SCMR 2004) it was observed:

“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 the chain of custody was unbroken, unsuspicious, safe, and secure. Any brake 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”.

11. In the case of Javed Iqbal V. The State (2023 SCMR 139) it was held:

“So the safe custody and safe transmission of the sample parcel was not established by the prosecution and this defect on the part of prosecution by itself is sufficient to extent benefit of doubt to the Appellant. It is to be noted that in the cases of 9(c) of NSA, it is the duty of prosecution to establish each and every step from the stage of recovery, making sample parcels, safe custody of sample parcel and safe transmission of sample parcel to the concerned laboratory. This chain has to be established by the prosecution and if any link is missing in such like offences the benefit must have been extended to the accused. Reliance in this behalf can be made upon 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 Buksh and Others (2018 SCMR 2039), Ikramullah and other V. the State (2015 SCMR 1002) and Amjad Ali V. the State (2012 SCMR 577), wherein it was held that in a case containing the above mentioned defects 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 the accused person beyond any reasonable doubt. So the prosecution has failed to prove the case against the petitioner and his conviction is not sustainable in view of the above mentioned defects”.

12. In the case of Asif Ali and another V. The State (2024 SCMR 1408) it was observed:

“In the cases under CNSA, 1997 it was the duty of the prosecution to establish each and every step from the stage of recovery, making of sample parcels, safe custody of sample parcels and safe transmission of sample parcels to the concerned laboratory. This chain has to be established by the prosecution and if any link is missing, the benefit of the same has to be extended to the accused”.

13. In the case of Muhammad Hazir V. The State (2023 SCMR 986) it was observed:

“After hearing the learned counsel for the appellant as well as the learned State counsel and perusing the available record along with the impugned judgment with their assistance, it has been observed by us that neither the safe custody nor the safe transmission of sealed sample parcels to the concerned Forensic Science Laboratory was established by the prosecution because neither the Muharar nor the constable Shah Said (FC-2391) who deposited the sample parcel in the concerned laboratory was produced. It is also a circumstance that recovery was affected on 10-02-2015 whereas the sample parcels were received in the said laboratory on 13-02-2015 and prosecution is silent as to where remained these sample parcels during this period, meaning thereby that the element of tempering with is quite apparent in the case. 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 Baksh 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 defects on the part of prosecution it cannot be held with any degree of certainty that prosecution has succeeded in establishing its case against accused person beyond any reasonable doubt”.

14. In the case of Qaiser Khan V. The State (2021 SCMR 363), the Supreme Court held:

“The Forensic Report reflects that the alleged narcotics were received in the laboratory on 11 December, 2012 but evidence on record is silent that where the same remained for two days i.e from 9^th December, 2012 to 11^th December, 2012. Similarly evidence regarding safe transmission of alleged recovered narcotics to the laboratory for chemical analysis is also missing. The law in this regard is settled by now that if safe custody of narcotics and its transmission through safe hands is not established on the record, same cannot be used against the accused. Reliance in this regard can well be placed on the cases of Mst. Razia Sultana V. The state and another (2019 SCMR 1300) and State through Regional Director, ANF V. Imam Buksh and others (2018 SCMR 2039)”.

15. In the case at hand, neither the Malkhana In-charge of PS Karim Bux nor that of PS R.D-44 was examined, nor was Form 22.70 of Register No. 19 of the Police Rules, 1934, produced. Consequently, the prosecution has failed to establish the crucial elements of safe custody and transmission. As a result, the conviction cannot be sustained.

16. In view of the foregoing, the appeal is allowed. The appellants are acquitted of the charge and shall be released forthwith unless required in another case.

JUDGE

S.Ashfaq/-