THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 144 of 2023

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Amjad Ali Sahito

Appellant : Nemo

Respondent : The State through Mr. Khadim Hussain Addl. P.G

Date of Hearing : 15.11.2023

Date of judgment : 15.11.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Asif appellant along with co-accused Muhammad Amin was tried by learned VIII-Additional Sessions Judge/MCTC Karachi West in S.C.No.913/2022 for offence under Section 9(c) of CNS Act 1997. After regular trial, vide judgment dated 06.03.2023, both appellant and the co-accused were convicted under section 9(c) of CNS Act 1997 and sentenced to undergo 03 years R.I each and to pay fine of Rs.100,000/- each and in default in payment of fine, they were ordered to undergo S.I for 03 months. Appellant and the co-accused were extended benefit of section 382(b) Cr.P.C.

2. Brief facts of the prosecution case are that on 22.04.2022, ASI Tahir Khan of PS Mouchko left police station along with his subordinate staff for patrolling duty. During patrolling, he received spy information that two persons were selling charas near Ahmed Raza Masjid 500 Quarters, Musharraf Colony. Police party reached at the pointed place at 0115 hours and apprehended two persons. Upon personal search of the appellant, recovered Ice weighing 120 grams and from the possession of co-accused namely Muhammad Ameen recovered charas weight 1005 grams of charas from his possession. Mashirnama of arrest and recovery of charas was prepared in presence of mashirs namely PCs Ali Gul and Ghulam Haider; case property was sealed. Thereafter, accused and case property were brought at P.S where FIR No.171/2022 u/s 9(c) of CNS Act 1997 was lodged against the accused on behalf of state.

3. During investigation, charas was sent to chemical examiner and positive report was received. On conclusion of usual investigation, final report was submitted against the accused under the above referred section.

4. Trial Court framed Charge against appellant under the above referred sections at Ex.02, to which he pleaded not guilty and claimed trial.

5. At trial, prosecution examined three witnesses and positive report of the chemical examiner was produced in evidence. Thereafter, prosecution side was closed.

6. Trial Court recorded statement of accused/appellant under Section 342 Cr.P.C. Appellant claimed his false implication in the present case. Appellant neither examined himself on oath under section 340(2) Cr.P.C in disproof of the prosecution allegations nor led any evidence in his defence.

7. Trial Court after hearing the learned counsel for the appellant, prosecutor and while assessing the evidence, by judgment dated 06.03.2023, convicted and sentenced the appellant as stated above. Hence, the appellant being dissatisfied with the judgment of conviction against him has filed instant appeal.

8. Learned advocate for the appellant is called absent. Mr. Khadim Hussain Addl. P.G read out the evidence of P.W-1 ASI Tahir Khan and frankly conceded that safe custody and safe transmission of the narcotics recovered from the possession of the appellant were not proved by the prosecution at trial. However, Addl. P.G submits that evidence of police officials is trustworthy and reliable and it was corroborated by positive report of chemical examiner. He prayed for dismissal of the appeal.

9. Jail roll was called from the Superintendent Central Prison, Karachi. We have perused jail roll dated 30.10.2023, which reflects that appellant has been released from the prison on 28.06.2023 on completion of his sentence. As appeal was admitted to regular hearing, we have decided to dispose of the same on merits.

10. We have heard Addl. P.G for the state and have re-assessed the entire prosecution evidence with his assistance and have come to the conclusion that prosecution had failed to prove safe custody and safe transmission of the charas to the chemical examiner for the reasons that according to ASI Tahir Khan, after arrest and recovery, appellant and case property were brought to Police station, but no where in his evidence has mentioned that whether alleged recovered narcotics was handed over to the incharge Malkhana or to the SIO. Record reflects that alleged recovery was effected on 22.04.2022 whereas narcotics was received in the office of chemical examiner on 25.04.2022 without any plausible explanation as to where remained these sample parcels from 22.04.2022 to 25.04.2022. It is an established position that the chain of safe custody and safe transmission of narcotics must be safe and secure because, the Report of Chemical Examiner enjoys very critical and pivotal importance under CNS Act and the chain of custody ensures that correct representative samples reach 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 or its representative samples makes the report of the Chemical Examiner fail to justify conviction of the accused. The prosecution, therefore, is to establish that the chain of custody has remained unbroken, safe, secure and indisputable in order to be able to place reliance on the report of the Chemical Examiner. However, the facts of the present case reveal that the chain of custody has been compromised, therefore, reliance cannot be placed on the report of the Chemical Examiner to support conviction of the appellant. In the case of Zahir Shah alias Shat vs. The State through Advocate General Khyber Pakhtunkhawa (2019 SCMR 2004), the Apex court held that:

“………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……..”

11. For what has been discussed above, we are of the view that the prosecution has failed to prove its’ case beyond a reasonable doubt and the benefit of doubt is extended to the appellant. Consequently, instant jail appeal is allowed and conviction and sentence passed by learned trial Court are hereby set aside and the appellant is acquitted of the charge. Since the appellant has been released from prison on completion of his sentence. Therefore, no further orders are passed. Office is directed to send a copy of this judgment to concerned SSP for record.

JUDGE

JUDGE