IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.
Criminal Appeal No. D-35 of 2019
Present:
Mr. Justice Amjad Ali Sahito.
Mr. Justice Jan Ali Junejo.
Appellant : Ali Asghar Brohi through Mr. Shahbaz Ali Brohi, Advocate,
Complainant : The State/ANF through Mr. Bilawal Bhutto, Special Prosecutor ANF.
Date of hearing : 22.04.2025
Date of decision : 22.04.2025
JUDGMENT
AMJAD ALI SAHITO, J;- This judgment shall dispose of the fate of the instant Criminal Appeal filed by the above-named appellant/accused, assailing the judgment dated 08.05.2019, passed by learned Session Judge Shikarpur/Special Judge, for Control of Narcotics Substance Act, Shikarpur, in Special Case No.723 of 2015 (Re.The State Vs.Ali Asghar), the outcome of FIR bearing No.17 of 2015, offence under sections 9 (c) of Control of Narcotic Substance Act, 1997, registered with Police Station, ANF Sukkur, whereby he was convicted for an offence punishable U/S: 9 (c) of Control of Narcotics Substance Act, 1997, and sentenced to undergo rigorous imprisonment for life and to pay a fine of rupees one million and in default thereof, to undergo simple imprisonment for six months more, with the benefit of Section 382-B Cr.PC.
2. The gist of the prosecution case is that on 10-09-2015 at 0800 hours near Taj CNG station situated Jacobabad road bye pass Shikarpur, accused Ali Asghar was found possessing charas weighing 100 kilograms in shape of 100 pieces of one KG each lying in a car No.AQQ-034, engine No.X7442042, chassis No.NZE120-6089526 of sliver colour, cash of Rs.1200/-, one original CNIC and key of car by police party headed by Inspector/SHO Muhammad Asim Raza of ANF, Sukkur in presence of mashirs namely; HC Ayaz Ahmed Malik and HC-Sher Muhammad. The substance was retained by accused without legal authority in contravention of section 6 of the Control of Narcotics substances, Act 1997 as such committed an offence punishable under section 9(c) CNS Act, 1997, as such, the appellant was booked in the instant case.
3. After completion of the usual investigation, the investigation officer submitted a report under section 173 Cr.PC before the competent Court of law and thereafter the case papers were supplied to the accused under receipt.
4. The charge against present appellant/accused was framed to which he pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case, examined mashir H.C Ayaz Ahmed produced memo of as (Pw.1)at Ex.5 who arrest/recovery at Ex.5/A and complainant/1.0 Inspector Muhammad Asim Raza as p.w.2 at Ex. 6 who produced attested copy of departure entry, FIR, entry of register No.XIX, copies of letters sent to chemical Examiners Rohri & Karachi, report of chemical Examiner Karachi, letters written to E&TO Karachi about car and calling details of criminal record of accused at Ex.6/A to 6/1 respectively. Special Prosecutor for ANF was not appearing and P.W/ASI Sher Muhammad was in attendance as such order Dated. 19.3.2019 was passed authorizing DDPP Mr. Liaquat Ali Mahar to proceed with the case where after evidence of ASI Sher Muhammad who took property for analysis at Karachi, was recorded at Ex.8. He saw receipt at Ex.6/E and admitted to be same where after side of the prosecution was closed by the learned Special Prosecutor for ANF vide statement Ex.9.
6. Statement of the accused u/s 342 Cr.P.C was recorded at Ex.10. He denied the allegations and claimed innocence. He further stated that he has got enmity with Mashooq Ali Brohi posted as Assistant Director in ANF Sukkur over matrimonial affairs. Complainant arrested him at the instance of Mashooq Ali Brohi from the house of his father in law situated at Truk stand Shikarpur on 9.9.2015 detained him at ANF PS Sukkur. Mashooq Ali provided charas to complainant and he then foisted it upon him. Nothing was recovered from his possession. He prayed for justice. However, he neither examined himself on oath u/s 0340(2) Cr.P.C nor led evidence in his defence.
7. The learned trial Court on evaluation of the evidence and after hearing the counsel for the parties, convicted and sentenced the appellant/accused vide Judgment dated 08.05.2019, which he has impugned before this Court by preferring instant Criminal Appeal.
8. Learned Counsel for the appellant inter-alia contended that as per prosecution the sample was sent to chemical examiner on 10.10.2015 through HC Sher Muhammad and received on 12.10.2015 with delay of two days when the office of chemical examiner situated at Karachi can be reached safely within one day , hence tampering with the case property during search period could not be ruled out so also safe custody and safe transit of alleged Narcotics substance has not been proved by the prosecution witnesses; that the appellant was arrested on 10.09.2015 and the case property was sent to the office of chemical examiner on 10.10.215 with delay of about one month, further it is not established that the property was kept in safe custody; that the appellant is innocent and has been falsely implicated in this case at the instance of relative with whom there is an immoveable property dispute; that there are material contradictions in the evidence of both the prosecution witnesses which created doubt in the prosecution and it is a well settled law that if a single circumstance creates doubt, its benefit goes to the accused, but the learned trial court did not consider the same. Lastly prayed for the acquittal of the accused.
9. Learned counsel for the appellant, further added that the appellant is only bread earner of his family members and submits that if acquittal is not possible then he does not wish to contest this appeal and leave the appellant at the mercy of the Court. He states that if this Court while maintaining the conviction reduces the sentence to one he has already undergone.
10. Conversely, learned Special Prosecutor for the ANF while supporting the impugned judgment, has argued that prosecution has proved its case against the appellant; that ANF officials have no enmity to foist such a huge quantity of charas upon the appellant; that the recovered charas was sent to the Chemical Examiner; that arrival and departure entries have been produced in the evidence and positive report of Chemical Examiner has also been produced in evidence; he therefore, prayed that the appeal may be dismissed.
11. We have heard the learned counsel for the appellant and learned Special Prosecutor for the ANF and gone through the evidence with their assistance.
12. The case of prosecution is that on the tip of information arrested the appellant and recovered 100 packets of charas from the car driven by him. The recovered charas was weighed and found 100 kilograms. Ten grams were separated from each packets for chemical examiner and remaining charas was sealed on the spot.
13. After re-examining evidence as well as record, we have observed that the complainant who is also investigation officer furnished his testimony as to the recovery of Narcotics (Chars), and the investigation steps taken thereafter, the chain of custody remains shrouded in mystery as nothing was brought on record to show why the parcel was kept in malkhana for one month (Date of incident was 10.09.2015) prior to being sent to the Chemical Examiner, though the latter prepared in this regard by him addressed to Chemical Examiner Karachi showing its memorandum date 10.10.2015 whereas the alleged Narcotics received in the office of Chemical Examiner demonstrating its receipt date as 12.10.2015, therefore, where the alleged Chars was available in between 10th October to 12th October 2015 has not been established by the prosecution suggesting a reason to observe that tempering cannot be ruled out. I.O also failed to explain the delay of one month for keeping the parcel with malkhana or sending to the office of chemical examiner. Needless to note that, for the Chemical Examiner’s Report to have real probative value, the sanctity of the chain of custody is absolutely imperative. It is prosecution’s responsibility that such chain of custody must be safe and secure because the report of the Chemical Examiner carries critical importance under the Act, 1997, and the proof of chain of custody can only ensure the reaching of recovered material to the office of the Chemical Examiner. We are fortified in this regard by the Judgment of the Honourable Supreme Court in the cases reported as The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), as well as, a more recent Judgment in Criminal Appeal No.184 of 2020, titled Mst. Sakina Ramzan v. The State, wherein it was held as under:
“The chain of custody or safe custody and safe transmission of narcotic drug begins with seizure of the narcotic drug by the law enforcement officer, followed by separation of the representative samples of the seized narcotic drug, storage of the representative samples and the narcotic drug with the law enforcement agency and then dispatch of the representative samples of the narcotic drugs to the office of the chemical examiner for examination and testing. This chain of custody must be safe and secure. This is because, the Report of the Chemical Examiner enjoys critical importance under CNSA and the chain of custody ensures that correct representative samples reach the office of the Chemical Examiner. Any break or gap in the chain of custody i.e., in the safe custody or safe transmission of the narcotic drug or its representative samples makes the Report of the Chemical Examiner unsafe and unreliable for justifying conviction of the accused. The prosecution, therefore, has to establish that the chain of custody has been unbroken and is safe, secure and indisputable in order to be able to place reliance on the Report of the Chemical Examiner.”
14. As regards the last contention of learned counsel that the appellant is the only bread earner of his family members, therefore, sentence may be reduced into the period already undergone and requested for departure from case of ‘Ghulam Murtaza and another v. The State’ [PLD 2009 Lahore 362], while placing reliance on the case of ‘The State v. Mujahid Naseem Lodhi’ [PLD 2017 SC 671], wherein it is held that;
“In a particular case carrying some special features relevant to the matter of sentence a Court may depart from the norms and standards prescribed above but in all such cases the Court concerned shall be obliged to record its reasons for such departure.”
15. From the above case law the Hon’ble Supreme Court of Pakistan has held that from departure of case of ‘Ghulam Murtaza and another v. The State’ [PLD 2009 Lahore 362] in a particular cases may depart from the sentencing policy but have to give the reasons. Let’s see whether there has been any justification to depart from normal sentencing policy. Learned counsel for the appellant has strongly pleaded reduction in sentence while pleading that the appellant is the only bread earner of his family members. In the case in hand the appellant, who is in jail for last twenty four years and 26 days, the family of the appellant, per him, is passing miserable life due to confinement of the appellant in jail. The position, being so, would be nothing but a misery where the parents of appellant have suffered too for act of the appellant, the peculiar facts and circumstances, so pleaded by the counsel for the appellant, having gone unchallenged by prosecution may well be taken into consideration for departing from the normal practice. No complaint in respect of the conduct of appellant from jail authorities is received. The appellant is first offender and has no previous criminal record/history in his credit. Besides, the appellant claims himself to be only male member of the family and has served major portion of his sentence, therefore, it is appropriate that appellant may be given an opportunity to improve himself as a law abiding citizen so also being bread earner of his family provide them basic necessity in a good manner.
16. Considering the above facts and circumstances of the case, the Jail Roll was called which reflects that the appellant has also physically served nine years, seven months and 12 days and earned remission of 14 years 03 months and 14 days upto 22.04.2025, as such, including remission the appellant has remained in custody for about more than twenty four years and 26 days. In such circumstances, in our humble view, it would serve both the purposes of deterrence and reformation, if the sentence, awarded to appellant, is reduced to one already undergone by him. Accordingly, the sentence of the appellant is altered and reduced to the period which he has already undergone, which include the period he was to undergo in lieu of fine. Consequently, instant Criminal Appeal is dismissed but with modification that the sentence including fine amount is reduced to one as already undergone. In view of above position, office is directed to issue release writ for the appellant if he is not required in any other custody case.
17. Criminal Appeal stands disposed of along with pending application with above modification.
JUDGE