IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

Crl. Appeal No. D- 45 of 2020.

Present:

Mr. Justice Zafar Ahmed Rajput.

Mr. Justice Adnan-ul-Karim Memon.

AllahdadWaswano. …………………...Appellant.

Versus

The State. …………...…..….Respondent.

Mr. Mazhar Ali Bhutto, Advocate for appellant.

Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

Date of hearing: 13.07.2021.

Date of decision: 13.07.2021.

JUDGMENT

Adnan-ul-Karim Memon,J:This appeal is directed by appellant AllahdadWaswano against the judgment dated 10.12.2020 passed by learned 3^rd Additional Sessions Judge/ Model Criminal Trial Court/ Special Judge (CNS) Larkana, in Special Narcotic Case No.54/2020, arising out of crime No.14/2020 of P.S Hatri Ghulam Shah (District Larkana), whereby the appellant was convicted for an offense punishable under Section 9 (c) of CNS, Act 1997 and sentenced to R.I for six years and to pay fine of Rs.30,000/- and in default o payment of fine to undergo S.I for six months more; however benefit of Section 382 (b) Cr.P.C was extended to him.

2. The charge against the appellant is that on 09.9.2020 at 1300 hours at the main Road BanhonJatoiCurve,DehPanjooKhokhar, he was found traveling in a passenger van, transporting and possessing Charas, weighing 4000 grams in the shape of eight slabs,laying in four packets, in one plastic Sack, for selling purpose.The appellant was arrested at the spot and brought to the police station along with recovered chars under mashirnama, such a report of the incident was lodged at Police Station Hatri Ghulam Shah, for an offense punishable under Section 9 (c) of CNS, Act 1997. After investigation, his case was challaned for trial. The report of the Chemical Examiner came positive. The prosecution produced four witnesses in support of its case. In his statement recorded under section 342, Cr.P.C. the appellant denied the allegations leveled against him and pleaded that he is falsely involved in this case. The learned trial court after recording evidence and hearing the parties, convicted the appellant for an offense punishable under Section 9 (c) of CNS, Act 1997, and sentenced to R.I for six years and to pay a fine of Rs.30,000/- and in default of payment of fine to undergo S.I for six months more; however,the benefit of Section 382 (b) Cr.P.C was extended to him.

3. The main contention of the learned counsel for the appellant is that the prosecution miserably failed to establish the traveling of theappellant in a passenger van. Per learned counsel the police failed to record evidence of either driver or passenger of the van, even they were not bothered to prepare mashirnama of the said vehicle, which cast serious doubt in the prosecution story. Learned counsel pointed out various discrepancies in the prosecution evidence and contradictions in the evidence of witnesses. Learned counsel referred to the deposition of ASI Sher Muhammad, who deposed that after registration of FIR of the case he handed over the case property to SHO for further investigation. However, the deposition of SHO explicitly shows that he handed over the case property to WHC Ahmed BuxSial to keep in safe custody under entry No.19. Per learned counsel, the said entry is available on page No.47, which is neither an original or certified copyof entry No.19 of Police Station Hatri Ghulam Shah, even un-dated, which shows malafide intention of the prosecution to book the appellant in the aforesaid crime. Per learned counsel the prosecution failed to record evidence of WHC Ahmed BuxSial to substantiate the claim of safe custody of the case property even he isnot nominated as a prosecution witness in the challan, which factum ought to have seen by the learned trial court, however the same aspect of the case was ignored and appellant was convicted without evidence. He prayed for the acquittal of the appellant in the aforesaid case.

4. On the contrary the learned Prosecutor has supported the version of prosecution as well as a judgment rendered by the learned trial court and has prayed for the dismissal of the instant appeal.

5. We have heard the learned counsel for the parties and have gone through the record of the case with the assistance of learned counsel for the parties.

6. The prosecution examined ASI Sher Muhammad who happened to be the patrolling officer. He deposed that on the fateful day i.e. 09.09.2020 whereby he received spy information that a van was coming towards Larkana city from Nawabshah city in which a person was boarded, in whose lap there was a sack, in which sack narcotic drugwas lying. He rushed towards the place and stopped such a vehicle and found the appellant available with possession of charas. He found four packets were available and conducted a body search of the appellant under mashirnama. The charas was weighed to be 4000 grams which weresealed under mashirnama and registered such FIR of the incident.

7. We have noticed that according to the statement of the complainant Sher Muhammad (PW-1), ASI, he recovered the narcotic drugs from the appellant on 09.09.2020 and prepared the memo of recovery (Ex- 3/B), and handed over the possession of the narcotic drugs to SHO for further investigation. He also admitted that when he left the police station, WHC was in charge of the police station. He also admitted that mashirnama of recovery did not show the number plate of the van, neither name of its driver and its cleaner. He also admitted that no van directly runs from Nawabshah to Larkana.

8. According to the statement of theSajid Hussain(PW-4), SHO, he handed over the recovered narcotic drugs to WHC Ahmed BuxSialalong with inventory (Ex-19) for safe custody.

9. We have also noticed that the letter of the senior superintendent of Police dated 10.9.2020 (Ex 6/f) written to the Chemical Examiner explicitly shows that sealed parcel No.1 is being forwarded to the chemical examiner. The author of this letter was not produced as a witness; even in charge of Police Station WHC Ahmed BuxSial in whose custodythe recovered narcotic drugs was handed over was neither cited as a witness nor examined.

10. in the absence of the statement of the WHC Ahmed BuxSialin-charge of Police Station, at the relevant time, as admitted by (PW-1) in his deposition, it cannot be ascertained whether the narcotic drugs were deposited in the Malkhana by PW-4, who categorically stated in his deposition that he handed over the case property to WHC Ahmed BuxSial, who was neither cited as a witness in the case, nor he was produced before the court to substantiate the fact that he kept the case property in safe custody under proper entry. However, entry No.19 produced before the learned trial court is neither certified nor a true copy of the original entry even the same is un-dated.

11. Upon scrutiny of the evidence brought on record, we are unable to ascertain when and who collected the narcotic drugs from theMalkhana (if deposited, though the record is silent); and who delivered them by hand to the office of the Chemical Examiner; such safe transmission is shrouded in mystery.

12. The chain of custody or safe custody and safe transmission of the narcotic drug begins with seizure of the narcotic drug by thecomplainant Sher Muhammad (PW-1), ASI, handing over and storage of the narcotic drug with Sajid Hussain (PW-4), SHO, and then dispatch of the narcotic drugs to the office of the chemical examiner for examination and testing. This chain of custody must be safe and secure and the chain of custody ensures that correct material reaches 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 makes thetestimony of all the PWs and Report of the Chemical Examiner unsafe and unreliable for justifying conviction of the appellant. The prosecution, therefore, has to establish that the chain of custody has been unbroken and is safe, secure, and indisputable to be able to place reliance on the statements of all the PWs and Report of the Chemical Examiner.

13. Another aspect of the matter is that the appellant put forward his defense by producing a case diary dated 08^thSeptember 2020 in Criminal Case No.20 of 2020 of learned Judicial Magistrate-I,Daur, whereby his presence was recorded in that case on the aforesaid date. However, this defense was not considered by the learned trial court without assigning any cogent reason.

14. We have further noticed that the FIR of the above crime does not speak that the ASI directed the driver and cleaner of the passenger-van to become mashir but in his deposition, he stated that he had asked the driver and cleaner to become mashir but they refused. If this was the position, it was incumbent upon him to record the statements of driver and cleaner of the passenger-van. However, he also failed and neglected to obtain documents of the passengervan and its route permit to substantiate the arrest and recovery of the narcotic drugs from the appellant. It is established from the record that the prosecution failed to secure safe custody of Passenger Van wherefrom the appellant was arrested with Narcotic Substance, in absence of this piece of evidence, which castsserious doubt in the prosecution story that the appellant was arrested from the Passenger Van with such drugs.

15. The facts of the present case reveal that the chain of custody has been compromised and is no more safe and secure, therefore, reliance cannot be placed on the statements of PWs to support the conviction of the appellant. On the aforesaid proposition, we are fortified with the decision of the Honourable Supreme Court in the case of MstSakinaRamzanVs. the State (2021 SCMR 451).

16. For the above reasons we allow this appeal and set aside the conviction and sentence of the appellant awarded by the learned trial court vide judgment dated 10.12.2020. The appellant was acquitted of the charges and directed to be released forthwith, if not required in any other case.

17. Foregoing are the reasons for the short-order dated 13.7.2021, which is reproduced hereunder for convenience:-

“For the reasons to be recorded later on, the instant criminal appeal is allowed. Appellant Allahdad son of BhoongarWaswano is acquitted of the charge by setting aside the conviction and sentence awarded to him under impugned judgment dated 10.12.2020 arisen out of Crime No.14 of 2020 Police Station Hatri Ghulam Shah, District Larkana, for offence under Section 9 (c) of Control of Narcotic Substances Act,1997. He shall be released forthwith by the jail authorities if his custody is not required in any other custody case.”

Judge