IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Before:

Mr. Justice Omar Sial

Mr. Justice Khalid Hussain Shahani

Criminal Appeal No.D-19 of 2024

Bahawal Shaikh

V/S

The State

Appellant:                                     Bahawal son of Ghulam Sarwar Shaikh

Through Mr. Abdul Baki Jan Kakar, Advocate.

State:                                          Through Mr. Ali Anwar Kandhro, Additional

Prosecutor General, Sindh.

Date of Hearing:                          04.03.2025

Date of Decision:                         20.03.2025

JUDGMENT

Omar Sial, J.-   Bahawal Sheikh was arrested on 24.09.2023 by A.S.I. Nazir Hussain Chandio from a graveyard when ten kilograms of charas were lying in a bag in front of him. F.I.R. No. 195 of 2023, under section 9(d) of the Control of Narcotic Substances Act, 1997, was registered at the Foujdari police station in Shikarpur.

2.       The prosecution story is that a police party headed by S.I. Nazeer Hussain Chandio and consisting of P.C. Abdullah, P.C. Shafique Ahmed, and D.P.C. Ali Ahmed Brohi was on regular patrol when it received information that notorious drug peddler Bhoroo Shaikh is present in a graveyard with charas in his possession. The police party went to the cemetery and saw a bag lying on the ground. Two people were standing close to it. One of the persons, Bhoroo Shaikh, ran away whereas the other, Bhawal Shaikh, the appellant, was arrested.

3.       Shaikh pleaded not guilty and claimed to be tried. At trial, the prosecution examined S.I. Nazeer Hussain Chandio (the complainant); P.C. Abdullah Lohar Baloch, who witnessed the arrest and recovery, WPC Abdul Wahid, the maalkhana incharge and S.I. Ali Hussain Shah (the investigating officer). In his section 342 Cr.P.C. statement, Shaikh denied any wrongdoing and said that he was arrested from a graveyard on 24.09.2020, and that the charas belonged to Bhoroo Shaikh, whom the police had let go. Shaikh was convicted and sentenced to twenty years and a fine of Rs. 800,000.

4.       We have heard the learned counsels and re-appraised the evidence. For brevity, their specific arguments are not being reproduced but are reflected in our observations and findings below.

5.       We find the story presented by the prosecution to be somewhat unreal. A police party consisting of three armed and able-bodied men receives information from the ever-present "spy" that a notorious drug peddler, Bhoroo Shaikh, is present at an identified place and that he has narcotics with him. The police reach that place, which is a graveyard. In that graveyard, which evidence shows was a 25 acre of land, the police party reaches a spot where they see a white sack lying on the ground in front of two men, the allegedly notorious Bhoroo Shaikh, and the appellant, and while Bhoroo Shaikh manages to make his escape good, rather effortlessly, the appellant Bahawal Shaikh, keeps standing his ground and the police comes to him and arrests him.  To us, the story is illogical and impractical, if not outright absurd. The recovery memo refers to the entire 25-acre graveyard as the place of the occurrence. At trial, the prosecution witnesses struggled to explain precisely where the recovery occurred. The prosecution has no cogent argument to give whether it's even logical that a sane person, albeit a criminal, would stand and watch the police coming straight to him but still keep standing with 10 kgs of charas lying in front of him,all while the kingpin Bhoroo Shaikh manages to effortlessly escape from right under the noses of the raiding party that had come to get him specifically. Bhoroo was never arrested in this case, though the witness admitted that he lived in the same neighborhood. There could be some truth in what the appellant said in his section 342 Cr.P.C. statement that a Shaikh got a Shaikh and that Bhoroo is the actual offender, but the police have let him off due to some reasons.

6.       Our astonishment at the prosecution story apart, we note an important legal aspect in this case. That is one of safe custody and transmission of the narcotics. This is not a run-of-the-mill case in which an important witness is not examined, and hence, the chain is broken. In this case, the prime question is how much relevance should be given to the packing and description of the charas. 

7.       S.I. Nazeer Hussain's testimony reflects that the charas was in a white sack when seized. The chemical analysts' report mentions no color of the bag in which the charas was sent in. Contrary to the witness testimony, the charas de-sealed in court was in a red sack. In his testimony, Nazeer Hussain acknowledged that “it is correct to suggest that the color of the bachka produced today is red with lining. It is correct to suggest that the color of the bachka is not white.”

8.       The memo of recovery or the witness testimonies did not state whether anything was written or printed on the sack in which the charas was kept or on the charas inside. S.I. Nazeer Hussain Chandio had a lapse of memory at trial and claimed that he could not remember whether anything was written; however, the memo of recovery does not record any writing. However, he admitted that the charas de-sealed and shown to him in court, apart from being in a different color bag, also had “555” (on some) and “Black Gold” (on others) written on it. These numbers are not mentioned in the F.I.R or the memo of recovery. The chemical analysts' report shows that there were twenty patties of charas in the bag sent to it and that all the patties had “555” and a gold stamp printed on them. S.I. Nazeer Hussain Chandio. Chandio further acknowledged that plastic wrapping was also available in the sealed bag that was de-sealed in court, the presence of which was also not mentioned in the documentation. He also admitted that though he had recovered ten packets of charas, and the same was recorded in the F.I.R. and memo, the bag opened at trial had twelve pieces of varying sizes of charas in it. This was in contradiction to what P.C. Abdullah Lohar Baloch said. He believed that the recovered chars were all in equally sized pieces. P.C. Abdullah Lohar Baloch also testified that he did not remember anything written on the bag or the charas packets. He justified it by saying that it was dark. We are unconvinced with such an explanation because if there was enough light for the policemen to draft memos on the spot, there would surely be enough light to examine the charas. The seizing officer and the witness also remained at odds on whether they attempted to apprehend the fleeing Bhoroo Shaikh. According to the seizing officer, no attempt or effort was made by any member of the police party, whereas the witness to the recovery said that Bhoroo had been chased on foot by P.C. Shafique Ahmed, but he still managed to flee. Further doubt was created when P.C. Shafique Ahmed noted at trial that “only Allah knew who the actual owner of the charas was.”

9.       The central legal issue in the admissibility of narcotics evidence in court is the collecting officer’s ability to recognize the evidence as the same evidence obtained from the accused or the crime scene. This is possible only if the evidence is collected correctly, marked, handled, and stored, and each step is comprehensively documented. This legal obligation is known as establishing the chain of custody. The chain of custody serves as a documented record detailing who possessed the evidence, from its collection to its destruction. This documentation safeguards the integrity of the evidence. Individuals who have handled the evidence form the "links" in the chain. Each transfer of the evidence introduces a new link. If any link in this chain is not recorded correctly, it compromises the chain, potentially rendering the evidence inadmissible in court.

10.      The narcotics law, as it has evolved in the country, carries stringent punishments and leans heavily in favor of the State. We find it quite remarkable that the prosecution story is identical in nearly a hundred percent of the cases that come to this court (of smaller recoveries). A man is seen carrying a black shopping bag (which used to be inevitably blue in the 2014 to 2016 years) in often a crowded area, and miraculously, a police part on routine patrol sees him and finds him suspicious. Inevitably, narcotics are recovered from this person. Section 25 of the CNS Act, 1997 expressly excludes the applicability of section 103 Cr.P.C., and it has been held that police officers are good witnesses. In most cases, the complainant is the same as the investigator, and one wonders why an investigator would decide against himself. In such a situation, there is very little an innocent person can do if subjected to police excesses. The police often abuse the law to settle their scores. In such a situation, it becomes critical that for the very least, safe custody and transmission of the narcotics from the point of seizure to its deposit in the chemical laboratory is meticulously established and proved at trial. In Ameer Zeb vs The State (PLD 2012 SC 380), it was noted, "We may also observe that in such cases it is the accused person who is at the receiving end of long and stringent punishments and, thus, safeguards from his point of view ought not to be allowed to be sacrificed at the altar of mere comfort or convenience of the prosecution."

11.      The reports that the chemical laboratories, particularly the Rohri laboratory, are issuing are stereotypical and, at times, dubious. A new trend started by the laboratory, which we find suspicious, is that the gross weight of the seized narcotics, according to the laboratory, is always twenty-five or forty grams above the one-kilogram or five-kilogram benchmarks. This happens when the memo of arrest and recovery shows an exact amount of one or five kilograms having been seized. The benchmarks are essential as, in our country, the quantum of sentences is connected not to a sample's toxicity and narcotic content but to its weight. One wonders how when the seizing officer has weighed the narcotics, claims his measurement was accurate, and weighs the seizure with the packing of the narcotics, yet the gross weight he notes in the recovery memo is always twenty-five to forty grams less than what the laboratory weighs it as. There are no descriptions or photographs of the seals affixed on the seizure packets when received by the laboratory, nor are there descriptions or pictures of the seals that the laboratory affixes on the packets after analysis. All that the report says is that the seals were “satisfactory.”  This does not mean anything. We have yet to come across a report which shows that the seals were in an “unsatisfactory” condition. Often, one wonders if the tests that the laboratory claims to have carried out are indeed conducted or if a favorable report stereotypically and mechanically is printed out. We fail to understand why law enforcement agencies do not take photographs of the seizure, sampling, and sealing process. The technology is available on nearly every phone carried by law enforcement. Indeed, the Supreme Court in Criminal Petition No. 1192 of 2023 also raised a similar concern -“If the police and ANF were to use their mobile phone cameras to record and/or take photographs of the search, seizure 3 and arrest, it would be useful evidence to establish the presence of the accused at the crime scene, the possession by the accused of the narcotic substances, the search and its seizure. Non-compliance of law enforcers to take photographs unnecessarily raises doubts that the police may have an ulterior motive to do so. The Punjab Forensic Science Agency (the leading forensic laboratory in the country) recommends that the packet of the narcotic seizure should be sealed with a molten wax seal to document specimen integrity. A reference seal sample must also be attached along with the sealed packet. There is no reason for the chemical laboratories of this province not to do the same.

12.      An accurate description of the commodity seized must be written in the recovery memo. The color and description of the narcotics seized, as well as the description of the packing and any visible marks, signs, photos, logos, and numbers on the seized articles, should be written in the recovery memo. This description should tally with the description noted by the chemical laboratory when the package is sent to it and then with the case property produced at trial. We are guided by the wisdom of the Supreme Court in the Ameer Zeb case (supra) when it noted, “We, reverently and respectfully, tend to agree with the latter view and would like to add that the rule of thumb for safe administration of criminal justice is: the harsher the sentence the stricter the standard of proof." Safe custody and transmission will be compromised if the seizure descriptions do not match.

13.      It would not be out of place to record that a Division Bench of this Court in Mohammad Arif vs The State (2023 YLR 2369) has observed: "According to the prosecution, he had a black bag in his hand, however the same bag finds no further description neither in the memo of arrest and recovery, nor in the FIR. Further description of the same however came forth in the deposition of PW-1 SIP Arz Muhammad who, while being cross-examined, admitted that the bag was in fact of navy blue colour and had "Old is Gold" inscribed on it. As per the prosecution case, the bag contained 10 packets of opium which were weighed and found to be 9.8 kilograms while 4 packets of charas were also found within the bag which were weighed and found to be 5 kilograms. These packets, so recovered, do not find any description as to the nature or content of the outer coverage of the same; whether they were wrapped in plastic, paper or cloth. These omissions strike at the core of the prosecution case as the same would have otherwise helped establish that the case property available in Court is in fact the same."

14.      Another Division Bench of this Court in Khan Afzal and another vs The State (2022 P.Cr.L.J. 52) has observed, "We have also observed that while the samples drawn from each 1 kg packet were stated in the Memo or Arrest and Seizure as well as the depositions of the prosecution witnesses to have been wrapped in white paper and then sealed, the Chemical Examiners Report shows each of the white paper packets received to have contained 4 black brown coloured pieces, each wrapped in plastic. Under the circumstances, this discrepancy casts further doubt in the matter."

15.      The Lahore High Court in Arzi Gul vs The State (2020 P.Cr.L.J 178) has held: "On de-sealing the case property P-1 pertaining to accused Jan Marry the witness admitted it correct that a wrapper of dark brown colour is recovered from the parcel. He admitted that there is no white colour shopping bag in the sealed parcel. He further affirmed that charas present in the court is in the shape of countless small pieces and not in shape of slabs." This state of affairs has also raised question mark about safe custody and production of case property before the Court because case property according to own statement of prosecution witness was in shape of slabs and wrapped in white colour plastic shopping bag but case property produced in court was in wrapper of dark brown color and in shape of countless small pieces; meaning thereby that allegedly recovered charas has not been produced in the Court, which fact has also smashed the case of prosecution. Hence, neither safe custody nor production of allegedly recovered charas in Court could be proved by the prosecution."

16.      In Sherazad vs The State (2012 YLR 1042), it was observed, "However Chemical Analyst states that 5 separate packets were delivered for chemical examination, three packets contained one slab each one packet contained two black and brown slabs each wrapped in a plastic panne and 5th packets contained multiple black, brown colored rods, each wrapped in plastic panne. We may observe here that neither in the F.I.R. nor in the evidence of P.W.1 or P.W.2 any panne have been mentioned. If the sample was taken from 160 packets separately, how could there be three slabs in three packets and one packet containing two slabs? This creates first doubt around the story of the prosecution."

17.      Given the above, the prosecution failed to prove safe and secure custody and transmission, creating doubt. This doubt and the fancy prosecution story make us conclude that the prosecution failed to prove its case beyond a reasonable doubt. 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

Judge

Manzoor