IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Jail Appeal No. D- 31 of 2020.

Present:

Mr. Justice Muhammad Saleem Jessar.

Mr. Justice Zulfiqar Ali Sangi.

Appellant: Abdul Majeed son of Ramzan Gaincho, through Mr. Asif Ali Abdul Razzak Soomro, Advocate.

Respondent: The State, through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

Date of hearing: 11.02.2021.

Date of the decision: 11.02.2021.

Date of reasons: 12.02.2021.

JUDGMENT

Zulfiqar Ali Sangi, J: This criminal jail appeal has been directed against the judgment dated26.08.2020 passed by learned 1^st Additional Sessions Judge/ Special Judge (CNS)/ M.C.T.C, Dadu, in Special Case No.176/2020, arisen out of F.I.R No.81/2020 of P.S Mehar, whereby the appellant was convicted and sentenced under Section 9 (c), CNS Act, 1997, to undergo R.I for six years and to pay fine of Rs.10,000/- and in default shall suffer S.I for five months and fifteen days more. However, appellant was extended benefit of Section 382-B Cr.P.C.

2. The facts of prosecution case in nutshell are that on 14.4.2020 police party headed by Inspector Noor Mustafa Pathan left police-station for patrolling and during patrolling they received spy information that a person having black color polythene bag containing opium was standing at the road leading towards Kazi Arif near Brick-kiln. On receipt of such information the police party reached pointed place, where they saw a person having black color polythene bag, who on seeing police party tried to escape but he was apprehended alongwith polythene bag, which was containing opium. On enquiry, he disclosed his name to be Abdul Majeed Gaincho (appellant) and on his personal search two currency notes of Rs.100/- and one mobile phone was also secured. The opium was weighed, which become 4000 grams; out of it 500 grams were separately sealed for chemical examination, while remaining opium was sealed separately under mashirnama with signatures of police mashirs, namely, PC Abdullah and PC Irshad Ali and ultimately accused and property were brought at police station, where instant F.I.R was registered on behalf of the State.

3. After completing the investigation challan against the appellant was submitted before the competent court and after the legal formalities learned trial Court framed the charge against appellant at Ex.03, to which he pleaded not guilty and claimed to be tried.

4. In order to prove the charge against the appellant, the prosecution examined PW-1 eyewitness/ mashir PC Abdullah at Ex.5, who produced mashirnama of arrest and recovery and mashirnama of place of incident at Ex.5-A and Ex.5-B. PW-2/ Investigation officer Inspector Amanullah Channa was examined at Ex.6, who produced roznamcha entry No.6 and Chemical examiner’s report at Ex.6-A and Ex.6-B, respectively. PW-3 complainant Inspector Noor Mustafa was examined at Ex.7, who produced roznamcha entries No.13 and 16 jointly and F.I.R at Ex.7-A and Ex.7-B, respectively. Thereafter, learned Prosecutor closed the side of prosecution vide statement Ex.8.

5. The statement of appellant/accused was recorded under Section 342 Cr.P.C at Ex.9, in which he denied the allegations of the prosecution leveled against him. He claimed his innocence and false implication in this case. He, did not examine himself on oath, not led any evidence in his defence.

6. After hearing the counsel for the parties, the trial Court convicted and sentenced the appellant as mentioned above hence the appellant preferredinstant jail appeal.

7. Learned counsel for the appellant has argued that the judgment passed by the trial Court is much against the law, facts and equity and liable to be set-aside; that the trial Court has failed to appreciate the factual as well as legal aspects of the case while convicting the appellant. He next argued that the evidence adduced by the prosecution at the trial, which is consist upon only police officials, is not properly assessed and evaluated by the trial Court and the evidence is insufficient to warrant conviction of the appellant. Per learned counsel there is delay of about ten days in sending the alleged samples to the Chemical Examiner, therefore, tampering with the same cannot be ruled out; and that the person viz. H.C Mukhtiar Ahmed who taken sample to laboratory was not examined by the prosecution. It is further contended by learned counsel that the trial Court has erred in concluding that the alleged recovery was effected from the accused in the mode and fashion described by the prosecution and that there are many important and vital contradictions in the evidence of the prosecution witnesses.Lastly, he has prayed for setting-aside the impugned judgment and acquittal of the appellant. In support of his contentions, learned counsel relied upon case of Mst. Razia Sultana v. The State and another (2019 SCMR 1300) and Kamran Shah and others v. The State and others (2019 SCMR 1217).

8. Conversely, learned D.P.G supported the judgment of the trial court on the ground that the prosecution has fully established its case by producing trustworthy ocular as well as circumstantial and documentary evidence. He further added that requirement of protocol was complied with by the police therefore short delay in sending the samples to laboratory as claimed by the defence does not carry weight and submitted that the appeal of the appellant may be dismissed. He relied upon case of Liaquat Ali and another v. The State (2018 P.Cr.L.J 257)andMushtaq Ahmed v. The State and another (2020 SCMR 474).

9. We have heard learned counsel for the appellant so also learned DPG and have gone through the entire evidence and the relevant law including that cited at the bar with their able assistance.

10. On our reassessment of the entire evidence produced by the prosecution we are of the view that the prosecution has failed to prove its case against the appellant beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence.

11. We scan the entire evidence of prosecution witnesses and do not find a single word in their evidence that when the sample for chemical examination and reportwas sent and through whom the same was sent. However investigation officer in his examination-in-chief only deposed that he sent the property for chemical examination.As to ascertain this fact we examined chemical examiners report Ex. 6/b which speaks that parcel received at laboratory on 24-04-2020 with memorandum No. Cr. 81/2020 dated 22-04-2020 from SHO PS Mehar Dadu through HC Mukhtiar Ahmed. Prosecution not examined the said important witness HC Mukhtiar Ahmed who brought the sample at laboratory which cut the chain of evidence to prove the case against the appellant. The prosecution not proved the safe transmission of the property to the chemical examiner which create serious doubt in its case. In this regards Supreme Court in case of Mst. Razia Sultana V. The State and another (2019 SCMR 1300),has held as under:-

2. At the very outset, we have noticed that the sample of the narcotic drugs was dispatched to the Government Analyst for chemical examination on 27.2.2006 through one Imtiaz Hussain, an officer of ANF but the said officer was not produced to prove safe transmission of the drug from the Police to the chemical examiner. The chain of custody stands compromised as a result it would be unsafe to rely on the report of the chemical examiner. This Court has held time and again that in case the chain of custody is broken, the Report of the chemical examiner loses reliability making it unsafe to support conviction. Reliance is placed on State v. Imam Bakhsh 2018 SCMR 2039).

3. For the above reasons the prosecution has failed to establish the charge against the appellant beyond reasonable doubt, hence the conviction and sentence of the appellant is set aside and this appeal is allowed, setting the appellant at liberty unless required in any other case.

In case of Zahir Shah alias Shat V. The STATE through

AdvocateGeneral, Khyber Pakhtunkhwa (2019 SCMR 2004),

SupremeCourt has held as under:-

2. We have reappraised the evidence with the able assistance of learned counsel for the parties and have noticed at the very outset that the Police constable, bearing No.FC-688, who delivered the sealed parcel to the Forensic Science Laboratory, Peshawar on 27.2.2013 was not produced by the prosecution. This fact has been conceded by the learned law officer appearing on behalf of the respondents. 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 Analyst, thus, rendering it incapable of sustaining conviction. Reliance is placed on State v. Imam Bakhsh (2018 SCMR 2039).

12. We also noticed that the recovery was allegedly effected on 14-04-2020 and the sample was sent on 22-04-2020 with the delay of about 09 days and was in violation of Rule 4(2) of theControl of Narcotic Substances (Government Analysts) Rules, 2001. This exercise was required to be completed within 72 hours of the recovery, and for this purpose even there is no plausible explanation brought on record by the prosecution as to why such inordinate delay was caused in the completion of this exercise by the Investigating Officer. This is fatal to the prosecution case. In this regard, reference can be made to the case of Muhammad Aslam v. The State (2011 SCMR 820)and Shamsullah v. The State (2013 MLD 1527).

13. The prosecution also not established the safe custody of the remaining recovered property and there is no evidence about itssafe custody. The prosecution not produced the entry in respect of keeping the remaining property in the malkhana nor produced malkhana incharge in witness box to prove safe custody of the same which was produced before the trial court and same has creates very serious doubt in the case of prosecution.Reliance is placed in the case Javed and 2 others V. The State (2020 YLR 311), wherein the appeal was allowed and it was held as under:-

5. The prosecution has also not produced extract from the relevant Register, which is kept at Police Malkhana for entering therein the recovered and sent contraband. Production of extract from the ibid Register was material so that it could be ascertained that the prosecution version regarding safe custody of the case contraband was corroborated by the relevant record.

14. It is well settled principal of law that the prosecution has to prove its case beyond a reasonable doubt and where even a single circumstance which creates reasonable doubt in the mind of a prudent man comes in the evidence of the prosecution the benefit must go to accused not as a matter of grace or concession but as a matter of right. In this regard reliance is placed on the case of Tariq Pervez v. The State(1995 SCMR 1345).

15 Based on the above discussion and our reassessment of the evidence on record we are of the view that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt, therefore, we allow the instant jail appeal and set-aside the conviction and sentences awarded by the trial court vide judgment dated 26.08.2020 and acquit the appellant by extending him the benefit of the doubt, who shall be released forthwith unless wanted in any other custody case.

16. These are the reasons for our short order dated: 11-02-2021, which is reproduced hereunder:

“Heard learned counsel for appellant and learned D.P.G for the State. For detailed reasons, to be recorded later on, instant appeal is hereby allowed. Consequently, the impugned judgment dated 26.08.2020 penned down by learned Additional Sessions Judge-I/ Special Judge (CNS)/ M.C.T.C, Dadu, in special case No.176/2020, Re; State v. Abdul Majeed Gaincho, which is outcome of Crime No.81/2020 P.S Mehar registered for offences under Sections 9 (c) of Control of Narcotic Substances Act, 1997, is hereby set-aside. Resultantly, appellant Abdul Majeed son of Ramzan Gaincho is acquitted of the charge. He is reportedly confined in jail; he shall be released forthwith, if his custody is not required in any other case.”

Judge