IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Appeal No. D-38 of 2024

Appellant		Waheed Ali @ Umair s/o Lutufullah Jatoi,
		Through Mr. Shahbaz Ali M. Brohi, advocate

The State		Through Mr. Ali Anwar Kandhro, Additional Prosecutor General for the State

Date of hearing		11-03-2025
Date of order		13-03-2025

O R D E R

Omar Sial, J.: Waheed Ali, alias Umair Jatoi, was nominated as an accused in crime number 118 of 2022, registered under section 9 of the Control of Narcotic Substances Act, 1997, at the Sturat Ganj police station. He was accused of possessing 5.2 kilograms of charas.

2. The appellant was tried and convicted by the court of the 1^st Additional Sessions Judge/Special Judge Narcotics, Shikarpur vide judgment dated 26.03.2024. He was sentenced to the time he had spent in prison and a fine of Rs. 800,000/-

3. An appeal, Criminal Appeal No. D-22 of 2024, was filed against the judgment mentioned above. On 22.05.2024, this Court set aside the impugned judgment and remanded the case back to the trial court to rewrite the judgment as the sentence awarded was not in accordance with the law.

4. In compliance with the orders of this Court dated 22.05.2024, the 1st Additional Sessions Judge, Shikarpur, rewrote the judgment and sentenced the appellant to twenty years in prison and a fine of Rs. 800,000/-. This judgment has been challenged through this appeal.

5. Learned counsel for the appellant submitted that the presiding officer deceived, coerced, and pressured the appellant into accepting his guilt and told him that if he pleaded guilty, he would be given a lesser sentence. The appellant, an illiterate person and represented by an advocate at State expense, accepted the offer made to him but was shocked to see that the highest possible sentence was given to him.

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

7. We are deeply concerned that this is not the first case from the same court in which a similar complaint has been made. We have refrained from making further observations in this regard but would like to stress that trial courts must ensure that no person is deprived of his fundamental right to a fair trial. Every case must be decided per the law.

8. In this case, the appellant claimed he was not guilty and had claimed to be tried. The prosecution examined S.I. Allah Wadhayo Gadani (the complainant) as its first witness at trial. P.C. Khalid Hassan, a witness to the arrest and recovery, was the second witness. W.H.C. Fateh Mohammad, the maalkhana in charge, was the third prosecution witness. The prosecution closed its side on 26.03.2024 by stating that “all the material witnesses” had been examined because the appellant had confessed his guilt. We have discarded the supposed confession made by the appellant. We have chosen to not delve deeper into this aspect to maintain and preserve the dignity of the judiciary. Suffice it to say that we are satisfied that the confession was not voluntary nor were the requirements preceding such a confession complied with. A bare read of the section 342 Cr.P.C. statement in itself shows that it is a rather unusual and odd one. An application dated 26.03.2024 is on file prima facie showing that the appellant confessed. His statement under Section 342 Cr.P.C. was recorded and a full-fledged judgment was passed on the same day. We appreciate that trial courts deal expeditiously with cases, but are surprised that the entire case, including examination of witnesses, was done on the same day, i.e., 26.03.2024. We have no qualms in recording that the appellant was not given a fair trial.

9. Although the appellant’s counsel only wanted the case remanded and did not argue anything else, we re-evaluated the evidence with the learned Deputy Prosecutor General's assistance. Our observations and findings are as follows.

10. We have observed that the chain of safe custody and transmission was not proven at trial. Narcotics were ostensibly seized on 28.09.2022 and deposited in the maalkhana the same day by the investigation officer S.I. Ghulam Shabbir. The maalkhana in charge W.H.C. Fateh Mohammad appeared as the third prosecution witness to testify that the one sealed parcel containing charas was deposited with him by S.I. Ghulam Shabbir Brohi on 28.09.2022. He further recorded that he took the charas from the maalkhana and handed them over to S.I. Ghulam Shabbir Brohi the next day, i.e. 29.09.2022, so that S.I. Brohi could take them for chemical analysis. The extracts of the maalkhana register no. 19 exhibited at trial do not show any date of time when the charas was deposited and withdrawn from the maalkhana. W.H.C. Fateh Mohammad conceded at trial that he had not produced the original register. The record shows that S.I. Brohi and P.C. Mohammad Hanif took the charas to the laboratory. For reasons best known to the prosecution, the prosecution did not examine the investigating officer, S.I. Ghulam Shabbir Brohi, who was also the person who had taken the narcotics for analysis. Neither was the second policeman who had accompanied S.I. Brohi to the chemical laboratory examined. P.C. Mohammad Hanif examined. Apart from the fact that the safe transmission of the narcotics was not proved at trial (Reference may be made, amongst others, 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) and Javed Iqbal vs. The State (2023 SCMR 139), the absence of the investigating officer at the trial left all the loose ends unaddressed. Under Article 129(g) Qanoon-e-Shahadat Order, 1984, it would be presumed that if the investigating officer had appeared at trial, he would not have supported the prosecution case. All steps he took during the investigation remained uncorroborated.

11. S.I. Allah Wadhayo arrested the appellant. In his testimony, he said that H.C. Khuda Bux and H.C. Nazir Ahmed witnessed the arrest and signed on the memo he prepared. Neither of the two policemen was examined at trial, instead, P.C. Khalid, claiming to be a member of the police party that arrested the appellant and recovered the narcotics, was brought in as a witness. No reason was assigned why the two witnesses did not appear to testify. Their absence will give rise to the presumption contained in Article 129(g) Qanoon-e-Shahadat Order, 1984 that had they appeared they would have not supported the prosecution case. P.C. Khalid did not provide evidence to support his assertion that he was present during the arrest and recovery. S.I. Allah Wadhayo in his testimony did not mention the name of P.C. Khalid as a member of the police party.

12. Given the above, we believe that the prosecution could not prove its case beyond reasonable doubt. Safe transmission of narcotics was also not proved. Conviction cannot be sustained. The appeal is allowed, and the appellant is acquitted of the charge. He may be released forthwith if not required in any other custody case.

JUDGE

Abdul Salam/P.A