IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

 

Before:

Mr. Justice Omar Sial

Mr. Justice Khalid Hussain Shahani

 

Criminal Jail Appeal No.D-16 of 2019

 

Malik Rashid and another

V/S

The State

 

Appellants:                                        1.         Malik Rashid son of Muhammad

Ashraf Pathan.

 

                                                            2.         Qaisar Khan son of Hawas Khan

Pathan

 

Through M/s. Habibullah G. Ghouri and Abdul Baki Jan Kakar, Advocates.

 

State:                                                  Through Mr. Aitbar Ali Bullo, Deputy

Prosecutor General, Sindh.

 

Date of Hearing:                               27.02.2025

 

Date of Decision:                             11.03.2025

 

 

J U D G M E N T

 

Omar Sial, J.-  On 30.03.2017, Excise department personnel received spy information that narcotics would be transported from Peshawar in a truck. Soon after that, the truck was seen coming on the road. It was being driven by Malik Rashid, the appellant, and Qaiser Khan, the cleaner, was also in the truck. Upon a search of the truck, ninety kilograms of charas were recovered. Malik and Qaiser were arrested, and F.I.R. No. 03 of 2017 under sections6, 8 and 9 of the Control of Narcotic Substances Act, 1997 was registered the same day at the Excise police station.

2.         The accused pleaded not guilty and claimed to be tried. The prosecution examined E.I. Amir Khan (the complainant and the investigating officer) and E.C. Mohammad Ibrahim, who had witnessed the arrest and recovery. The accused denied any wrong in their section 342 Cr.P.C. statement. On 11.04.2019 the 1st Additional Sessions Judge, Kandhkot convicted both men and sentenced them to life imprisonment and a fine of Rs. 100,000 each.

3.         We have heard the learned counsels for the appellants and the learned Additional Prosecutor General. Our observations and findings are as follows.

4.         At the outset, learned counsel for the appellant submitted that though he had several grounds to argue, he would restrict it to only one: that safe custody of the seized property and its safe transmission to the laboratory were not proved at trial. He cited several judgments in this regard. On the contrary, the learned Additional Prosecutor General conceded that the in charge of the maalkhana where the narcotics were deposited nor the courier who took the narcotics to the laboratory were examined at trial. However, his stance was that the non-appearance at the trial of the maalkhana in charge and the courier 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 discussed above.

5.         In the present case, seizure was made at 5:00 a.m. on 30.03.2017. Samples were sent to the laboratory the same day at an unspecified time through E.C. Hakim Ali. The record is silent regarding how and where the seized narcotics and its samples were secured during this period. According to regular police procedure they should have been deposited in the maalkhana. The person in charge of the maalkhana was not identified at trial, nor did he testify. Similarly, the narcotics were sent through E.C. Hakim Ali, but he too did not testify at trial. 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."

6.         The law as enunciated by the Supreme Court provides that if safe custody and transmission are not proved, trial and the maalkhana and courier not examined, conviction could not be sustained.

7.         Given the above, the appeal is allowed and the impugned judgment is set aside. The appellants may be released if not required in any other custody case.

 

Judge

 

Judge

 

Manzoor