THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 170 of 2023

Criminal Appeal No. 186 of 2023

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Amjad Ali Sahito

Appellants : Usman and Muhammad Ramzan through M/s Qazi Inamullah along with Babur Ishaq and Faisal Ahmed A. Memon advocates

Respondent : The State through Mr. Ali Haider Saleem Addl. P.G

Date of Hearing : 08.11.2023

Date of Judgment : 08.11.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Usman and Muhammad Ramzan appellants were tried by learned Special Judge, CNS, Thatta in Special Case No. 96 of 2022 for offence under Section 9(c) of CNS Act 1997. After regular trial, vide judgment dated 14.03.2023, appellants were convicted under section 9-3(c) of CNS (Amendment) Act 2022 and sentenced to undergo imprisonment for 10 years 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 06 months. Appellants were extended benefit of section 382(b) Cr.P.C.

2. Brief facts of the prosecution case are that on 17.10.2022, SIP Abdul Mutalab Jatoi along with his subordinate staff was busy in patrolling duty, when police party reached at Ladhya Bus stop, SIP received spy information that two persons having charas were available at Ladhya Bus Stop. Upon such information, police party reached at the pointed place and apprehended two persons. On inquiry, they disclosed their names as Usman and Muhammad Ramzan. On personal search police recovered shoppers containing four slabs in each shopper, total weight of recovered charas became 4 K.G. Mashirnama of arrest and recovery was prepared in presence of mashirs namely HC Allah Bachayo and PC Jameel Ahmed; accused and case property were brought to the police station where FIR vide Crime No. 100/2022 under Section 9(c) of CNS Act, 1997 was registered on behalf of state.

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

4. Trial Court framed Charge against appellants under the above referred sections at Ex.04, to which they 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 statements of accused/appellants under Section 342 Cr.P.C at Ex.11 and 12. Appellants claimed their false implication in the present case and denied the prosecution allegations. Appellant Muhammad Ramzan raised plea that he was contesting Local Bodies elections of ward councilor and instant case was registered at the influence of candidate of rival party in order to restrain him from contesting such election. Appellant produced order dated 25.06.2022 passed by Appellate Authority for Local Bodies Election, Thatta/ Sujawal and Form-III. However, both the appellants neither examined themselves on oath under section 340(2) Cr.P.C in disproof of the prosecution allegations nor led any evidence in their defence.

7. Trial Court after hearing the learned counsel for the appellant, prosecutor and while examining the evidence by judgment dated 14.03.2023, convicted and sentenced the appellants as stated above. Hence, the appellants being dissatisfied with the judgment of conviction against them have filed instant appeal. By this single judgment, we intend to decide both appeals, as same appreciation of evidence is required.

8. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 14.03.2023 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9. Learned advocate for the appellants mainly argued that prosecution has failed to prove safe custody and safe transmission of the charas to the chemical examiner; that Head Moharir of the police station has not been examined; that though it was a case of spy information but no private person was associated to witness the arrest and recovery. It is further submitted that there are material contradictions in the evidence of prosecution witnesses. Lastly, it is argued that prosecution has failed to prove its’ case against the appellants. In support of their contentions, reliance is placed upon the case of Subhanullah vs. The State (2022 SCMR 1052).

10. Mr. Ali Haider Saleem Addl. P.G argued that prosecution witnesses who are police officers have fully implicated the appellants. As regards safe custody Addl. P.G argued that though prosecution has failed to examine Head Moharir of the police station, but prosecution has examined HC Allah Bachayo who had taken the charas to the chemical examiner for analysis and report of the chemical examiner was positive. He prayed for dismissal of the appeal.

11. After hearing learned counsel for the parties, we have re-examined the entire prosecution evidence produced before the trial Court and have come to the conclusion that prosecution has failed to prove its case against the appellants for the reasons that from the evidence it appears that it was a case of spy information, received by SIP Abdul Mutalab through cellular phone, but call data of said cellular phone has not been produced by SIP at trial. Head of the police party deposed that he asked some private persons to act as mashir but they refused. The particulars of those private persons who refused to act as mashir, were not mentioned. Prosecution has also failed to prove safe custody and safe transmission of the charas to chemical examiner for the reasons that SIP Abdul Mutalab, head of the police party in his evidence has clearly stated that he brought accused and case property at P.S where he lodged the FIR against them. No where he has deposed that either he deposited case property with the incharge of Malkhana or handed over it to the SIO of this case. Record reflects that charas allegedly was recovered on 17.10.2022 and according to the report of the chemical examiner, the charas was deposited on 18.10.2022, prosecution has failed to establish that where charas was kept for one day. Even incharge Malkhana has not been examined by the prosecution.

12. 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……..”

13. Appellant Muhammad Ramzan has also raised specific defence plea that he was contesting Local Government elections from the platform of PTI and in order to prevent him from contesting such election, instant case has falsely been registered against him. Copy of his Nomination form has also been placed on record. I.O. failed to examine such defence plea during investigation even trial Court ignored defense evidence without assigning cogent reasons. We have also noticed that P.W-1 SIP Abdul Mutalab deposed that after receiving information, he informed SHO concerned, but from the case diary Roznamcha entry No. 23 dated 16.10.2022, it appears that he was SHO PS Sakro. Furthermore, P.W-2 mashir Allah Bachayo in cross-examination admitted that his statement under Section 161 Cr.P.C was recorded on 16.10.2022, whereas alleged incident has taken place on 17.10.2022, one day prior to the incident.

14. We have also noticed that there are material contradictions in the evidence of the prosecution witnesses on material facts. It is well settled that for the purposes of extending the benefit of doubt to an accused, it is not necessary that there be multiple infirmities in the prosecution case or several circumstances creating doubt. A single or slightest doubt, if found reasonable, in the prosecution case would be sufficient to entitle the accused to its benefit, not as a matter of grace and concession but as a matter of right. Reliance in this regard may be placed on the case reported as Tajamal Hussain v. the State (2022 SCMR 1567).

15. 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 appellants. Consequently, instant appeals are allowed and conviction and sentence passed by learned trial Court are hereby set aside and the appellants namely Muhammad Ramzan son of Muhammad Murad and Usman son of Haji Sulleman @ Kumbhar are acquitted of the charge. They shall be released forthwith, if not required to be detained in any other custody case.

JUDGE

JUDGE