IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No. D- 39 of 2022.

Present:

Mr. Justice Adnan Iqbal Chaudhry

Mr. Justice Zulfiqar Ali Sangi

Appellant	:	Ghulam Nabi @ Naboo @ Nabi Bux, Through Mr. Safdar Ali Ghouri, Advocate.
The State	:	Through Mr. Ali Anwar Kandhro, Additional Prosecutor General, Sindh.

Date of hearing	:	11.01.2023
Date of decision	:	24.01.2023

JUDGMENT

ZULFIQAR ALI SANGI, J ;- Through listed Criminal Appeal, the appellant has assailed the judgment dated 01.10.2022, passed by learned Special Judge for CNS/Sessions Judge, Kashmore @ Kandhkot, in Special Case No.15 of 2022 (Re. State Vs. Ghulam Nabi alias Naboo alias Nabi Bux Machhi), outcome of FIR bearing Crime No.22 of 2022 for the offence punishable U/S.9 (c) C.N.S, Act, 1997, registered with Police Station, Tangwani, whereby he has been convicted for an offence punishable U/S.9(c) of Control of Narcotics Substance, Act,1997 and sentenced to undergo R.I for five years and six months with fine of Rs.25,000/- and in default whereof to undergo S.I for five months and fifteen days, with benefit of Section 382-B Cr.PC.

2. Succinctly, the facts of prosecution case are that on 18.05.2022, at about 1700 hours, a police party of P.S Tangwani, led by SIP Abdul Sattar Malik while patrolling on receipt of spy information apprehended the present accused from Haibat Shaheed Railways Crossing and recovered a black colour shopper containing 2050 grams of Charas wrapped in envelope with cash of Rs.300/-. Such mashirnama of arrest and recovery was prepared in presence of mashirs HC Khadim Hussain and PC Ghulam Muhammad. On return to Police Station, the instant case was registered against him on behalf of the State.

3. After usual investigation, the charge sheet against present appellant was submitted before learned trial Court where after completing the legal formalities together with supply of the copies of papers, the charge against him was framed to which he pleaded not guilty and claimed trial.

4. At the trial, the prosecution examined four (04) witnesses including complainant ASI Abdul Sattar Malik, mashir of arrest and recovery namely HC Khadim Hussain, Investigating Officer/SIP Rano Khan Mahar and PC Muhammad Yousif who had taken the property to the Chemical Laboratory who produced documents and items to support the prosecution case.

5. The present appellant in his statement recorded in terms of Section 342 Cr.PC denied the allegations leveled against him by pleading his innocence, stating therein that he has falsely been implicated in this case by foisting the case property. He further added that he was arrested by police from his house on 16.05.2022 and kept in illegal confinement and his mother filed application U/S.491 Cr.PC on 19.05.2022 and produced copy of certain applications, he lastly prayed for justice. He, however, neither examined himself on oath in disproof of the charge nor led any evidence in his defence.

6. The learned trial Court after hearing the counsels for the parties and evaluation of the material brought on record convicted and sentenced the appellant through impugned judgment, as stated above.

7. Per learned defence counsel, the appellant is innocent and has been falsely implicated in this case with malice; that there is conflict in between the evidence of the prosecution witnesses which has shattered the veracity of their evidence; that the learned trial Court has not considered the contradictory piece of evidence brought on record; that the recovery of narcotics substance has been foisted against the present appellant by the police of its own; that the safe custody and transmission of the case property is questionable and that there is also delay in dispatching the case property to the chemical laboratory, in these circumstances, the prosecution has miserably failed to prove the charge against the appellant beyond a shadow of reasonable doubt. Lastly, he prayed for setting aside the impugned judgment and for acquittal of the appellant by extending him benefit of the doubt. In support of his arguments, learned counsel relied upon the case laws reported in 1995 SCMR-1345, PLD 2001 Karachi-369, 2017 YLR-1292, 2017 PCr.LJ-501 and 2018 MLD-1025.

8. On the other hand, learned Additional P.G for the State contended that the prosecution has successfully proved the charge against the appellant by producing trustworthy and confidence inspiring evidence and that there was no enmity of the police to foist such a huge quantity of narcotics substance against the appellant at its own resources, therefore, the prosecution has successfully proved its case against the appellant beyond shadow of a reasonable doubt and the impugned judgment does not call for any interference by this Court. He lastly prayed for dismissal of the instant criminal appeal.

9. We have given due consideration to the arguments advanced by learned counsel for parties and have minutely examined the material made available on the record.

10. The careful assessment of the material brought on record is entailing that all the witnesses tried to support the case of prosecution but their evidence when scrutinized deeply, was found coupled with material improbabilities. For instance, the complainant in his cross examination deposed that entry No.23 was written by WHC, while the mashir deposed that it was kept by WPC. Furthermore, the complainant deposed that HC Khadim Hussain arrested accused whose hands were tied with towel by him, but the mashir has contradicted this version by deposing that they all police party arrested accused and he applied handcuffs to accused. The complainant further deposed that memo of arrest and recovery was prepared by WPC and he himself admitted that it is not mentioned in the FIR that WPC was available with them, while the mashir deposed that memo of arrest and recovery was prepared by SIP on clip board. In addition to this, the mashirnama of arrest and recovery as well as the FIR speak about recovery of Charas in shape of two slabs but the evidence of the complainant and his mashir is totally silent about it. Further, the investigation officer in his cross-examination deposed that WPC Jalal authored mashirnama of inspection of place of incident while the mashir deposed that memo of inspection of place of vardat was written by WHC and that the memo of vardat itself does not speak about availability of WPC Jalal or WHC with them during inspection of place of vardat.

11. As per evidence of investigating officer/SIP Rano Khan Mahar, WPC Fida Hussain recorded entry in daily diary about receipt of custody of accused, case property and FIR from complainant SIP Abdul Sattar, however, the prosecution has also failed to examine said WPC Fida Hussain which also creates serious doubt. Moreover, the alleged contraband material was dispatched to the laboratory two days after its recovery but no explanation whatsoever has been furnished by the prosecution that where it was kept for such intervening period which obviously leads to an adverse inference against the prosecution about the safe custody of the Charas. All these improbabilities in the case have rendered the entire claim of the police party to be highly doubtful. It is settled principle of law that when the chain of custody is broken, the Report of the Chemical Examiner loses its sanctity and cannot be relied upon safely to convict an accused. Reliance is placed on case of the State v. Imam Bakhsh (2018 SCMR-2039).

12. Recently the Honourable Supreme Court of Pakistan in the case of Qaiser and another v. The State(2022 SCMR 1641), has observed that “In absence of establishing the safe custody and safe transmission, the element of tempering cannot be excluded in this case. The chain of custody of sample parcels begins from the recovery of the narcotics by the police including the separation of representative samples of the recovered narcotics, their dispatch to the Malkhana and further dispatch to the testing laboratory. The said chain of custody and transmission was pivotal as the entire construct of the Act 1997 and the Control of Narcotic Substances (Government Analysts) Rules 2001 (Rules 2001), rests upon the report of the analyst. It is prosecutions bounded duty that such chain of custody must be safe and secure because the report of chemical examiner enjoined critical importance under the Act 1997, and the chain of custody ensure the reaching of correct representative samples to the office of chemical examiner. Any break in the chain of custody i.e. the safe custody or safe transmission of the representative samples, makes the report of chemical examiner worthless and un-reliable for justifying conviction of the accused. Such lapse on the part of the prosecution would cast doubt and would vitiate the conclusiveness and reliability of the report of chemical examiner. Reliance can be made upon the judgments rendered by three members benches of this court i.e. Ikramulah v. The State (2015 SCMR 1002), The State v. Imam Bakhsh (2018 S'CMR 2039), Abdul Ghani v. The State (2019 SCMR 608), Kamran Shah v.The State (2019 SCMR 1217), Mst. Razia Sultana v.TheState (2019 SCMR 1300), Faizan Ali v. The State (2019 SCMR 1649), Zahir Shah alias Shat v.State through AG KPK (2019 SCMR 2004), Haji Nawaz v. The State (2020 SCMR 687), Qaiser Khan v.The State (2021 SCMR 363), Mst. Sakina Ramzan v.The State (2021 SCMR 451), Zubair Khan v.The State (2021 SCMR 492), Gulzar v.The State (2021 SCMR 380).”

13. It is also an established principle of law that an accused person is presumed to be innocent until and unless he is proved guilty beyond a reasonable doubt and this presumption of his innocence continues until the prosecution succeeds in proving the charge against him beyond a reasonable doubt on the basis of legally admissible, confidence-inspiring, trustworthy and reliable evidence. It has also been held by the Superior Courts that conviction must be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. The rule of giving the benefit of doubt to an accused person is essentially a rule of caution and prudence and is deep-rooted in our jurisprudence for the safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (Peace Be Upon Him): “Avert punishments (hudood) when there are doubts” and “Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader's mistake in pardon is better than his mistake in punishment.” The Hon’ble Supreme Court has quoted probably the latter part of the last-mentioned saying of the Holy Prophet (PBUH) in the case of Ayub Masih v. State (PLD 2002 SC 1048) "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent." The same principle has also been followed by the Honourable Supreme Court of Pakistan in the recent Judgment in the case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600). It is also settled principle of law that if a single circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez v. The State reported as (1995 SCMR-1345), wherein the Honourable Supreme Court of Pakistan has held as under:-

"The concept of benefit of doubt to an accused person is deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is any circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right".

14. For what has been discussed above, we are of the unanimous opinion that the prosecution has miserably failed to establish the guilt against the present appellant beyond shadow of reasonable doubt. Consequently, the conviction and sentence awarded to the appellant by learned trial Court vide impugned judgment are set aside and the instant appeal is allowed. Office is directed to issue release writ, directing the concerned jail authority to release the appellant forthwith in the present case if he is no more required in any other custody case.

15. The instant Criminal Appeal is disposed of accordingly together with listed application.

JUDGE