IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Cr. Jail Appeal No. D-31 of 2023

Appellants		Muhammad Punhal s/o Fatteh Mohammad Gopang and Muhammad Yaqoob s/o Budhal Khan Umrani,
		Through Mr. Rukhsar Ahmed M. Junejo, advocate

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

Date of hearing		18-03-2025
Date of order		21-03-2025

J U D G M E N T

OMAR SIAL, J.- Mohammad Punhal was driving a truck and Mohammad Yaqoob was sitting next to him on 01.01.2022 when the truck was stopped and searched by an Excise police party. 240 kilograms of charas were recovered from the truck. Both men were arrested, and F.I.R. No. 1 of 2022 under section 9(c) of the Control of Narcotic Substances Act, 1997, was registered at the Excise police station in Jacobabad.

2. Both pleaded not guilty and claimed to be tried. At trial the prosecution examined two witnesses A.E.T.O. Zia-ul-Islam, who was the complainant and the investigation officer; E.C. Mir Jeand who was a witness to the arrest and recovery and who also took the seized narcotics to the chemical analyst. The appellants professed innocence in their respective section 342 Cr.P.C. statements.

3. On 11.09.2023, the learned Special Judge convicted and sentenced both men to life imprisonment and a fine of Rs. one million.

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

5. No description of the seized charas or their packing was stated in the memo of recovery except that 240 slabs of charas were found and that they were sealed in four bags with 60 slabs in each. Each bag was white. The bags that were produced in court were of a different color. A.E.T.O. Zia-ul-Islam acknowledged that “it is correct that the four bachkas of charas present in court are of half white color. It is correct that the some prints and green lines are available on top to bottom of each backhka of charas present in court and such fact is not mentioned in F.I.R. or memo of recovery. The same witness acknowledged that the charas shown to him in court had a yellow plastic wrapping, which he had not mentioned in the recovery memo. This witness also admitted that one of the four bachkas produced in court was not sealed.

6. In another unreported case (Crl Appeal No D-19 of 2024), we held that: “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.”

7. The seizure occurred on 01.01.2022, and the chemical analyst received the case property on 03.01.2022. No explanation was given by the prosecution where the case property was stored in the interim. The maalkhana in charge was not identified. He was not examined at trial. As mentioned, neither witness explained where and how the property was secured in the interim.

8. In Sarfaraz Ahmed vs The State (2024 SCMR 1571), 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."

9. Being guided by the wisdom of the Supreme Court and as an unbroken chain of safe custody and transmission was not established by the prosecution at trial, the impugned judgment is set aside. The criminal jail appeal is allowed, and the appellants acquitted of the charge. They may be released forthwith if not required in any other custody case.

Judge

Abdul Salam/P.A