THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 401 of 2022

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Amjad Ali Sahito

Appellant : Abdul Basit through Syed Saaduudin Shah advocate

Respondent : The State through Peer Riaz Muhammad Shah DAG

Shahid Ali Qureshi Special Prosecutor Customs

Date of Hearing : 23.11.2023

Date of judgment : 23.11.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Abdul Basit was tried by learned Judge, Special Court-II (CNS) Karachi in Special Case No. 18 of 2020 for offence under Section 9(c) of CNS Act 1997. After regular trial, vide judgment dated 06.06.2022, appellant was convicted under section 9(c) of CNS Act 1997 and sentenced to undergo imprisonment for life and to pay fine of Rs.300,000/- and in default in payment of fine, he was ordered to undergo imprisonment for 03 years. Appellant was extended benefit of section 382(b) Cr.P.C.

2. Brief facts of the prosecution case are that on 01.02.2020 at about 6:00 p.m. at 71 Wing Sachal Ranger, RCD Highway, Customs Mochko Chowk point, Karachi Rangers stopped a coach and searched the passengers travelling in it. Appellant was found in suspicion manner and from his possession Ranger officials recovered 4 packets containing opium weighing 38 K.G. Appellant was got down from the coach and his custody was handed over to the Custom Officials, hence FIR bearing Crime No. ASO-59/2020-HQ for offence under Section 9(c) of the CNS Act 1997 was registered at PS Customs Karachi on behalf of State.

3. During investigation, opium was sent to chemical examiner on 10.02.2020; 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 P.W-01/Complainant P.O Rana Azeem Sarwar, P.W-02 mashir Sepoy Noshad, P.W-03 I.O/PO Shahbaz Ahmed, P.W-04 SI Tayyab Uddin of Rangers and P.W-05 IPS Azmat Hussain, who produced the relevant documents.

6. Trial Court recorded statement of accused/appellant under Section 342 Cr.P.C. Appellant claimed his false implication in the present case. Appellant raised plea that he was picked up by the Rangers from his house two days prior to the registration of FIR and opium has been foisted upon him. However, neither he 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 06.06.2022, 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. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 06.06.2022 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 appellant mainly contended that according to the case of prosecution opium was recovered from the appellant while he was travelling in coach on 01.02.2020 at 6:00 p.m. whereas, mashirnama of recovery was prepared on 01.02.2020 at 1:00 a.m. at ASO Head Quarters, NMB, Wharf, Karachi; that driver and cleaner of coach were not examined by the I.O; that no Roznamcha entry of Rangers is produced before trial Court; that there is delay of 09 days in sending opium to the chemical examiner for which no plausible explanation has been furnished; that safe custody and safe transmission of the opium to the chemical examiner has also not been established before trial Court; that according to the case of prosecution, Rangers officials informed the recovery of opium from the appellant to the Head Quarters, but no communication record was produced before the trial Court; that ticket of the appellant was also not produced by the I.O before the trial Court. Lastly, it is contended that opium has been foisted upon the appellant by the Rangers due to enmity. In support of his contentions, reliance is placed upon an unreported judgment dated 13.12.2022 passed by Apex Court in Criminal Appeal No. 48 of 2021 (re: Ahmed Ali and another vs. The State) and an unreported judgment passed by this Court in Criminal Appeal No. 470/2021.

10. DAG duly assisted by advocate for Customs argued that evidence of Rangers and Custom officials was quite reliable and confidence inspiring and trail court has rightly relied upon their evidence. It is further submitted that evidence of the officials is corroborated by positive report of chemical examiner. As regards to the safe custody and safe transmission to the expert is concerned, DAG submits that delay has been fully explained and there was no allegation of tempering with the substance during custody at the warehouse of the Customs. Lastly, it is argued that appellant has raised a specific plea that he was picked up by Rangers prior to the registration of the FIR but said plea was not substantiated at trial.

11. We have carefully heard learned counsel for the parties and have re-examined the entire evidence. We have come to the conclusion that prosecution has failed to prove its case against the appellant for the reasons that it is a case of prosecution that appellant was travelling in coach on 01.02.2020 and he was caught hold by the Rangers at 6:00 p.m. in the suspicion manner and recovery of opium was effected from his possession, but neither driver nor cleaner or any passenger of said coach was examined by the I.O during investigation. Even ticket of the appellant was not recovered from the possession of the appellant. We have further noticed that mashirnama of seizure (Ex.4/C) was prepared on 02.02.2020 at 1:00 a.m. at ASO Head Quarters, NMB Wharf, Karachi which clearly suggests it was not prepared soonafter the recovery but was prepared at ASO Head Quarters NMB Wharf and not at the place of incident. So far as safe custody and safe transmission of the alleged recovered narcotics is concerned, it is the case of the prosecution that opium was kept in safe custody and it was safely transmitted to the chemical examiner and in support of such claim, prosecution examined P.W-05 Azmat Hussain IPS Customs/ Incharge of State Warehouse Custom. However, we found evidence of P.W-05 Azmat Hussain Incharge of State warehouse Customs is of no help to the case of prosecution as during his cross examination he stated that case property was handed over to him by Rana Azeem on 20.02.2020 i.e. after 19 days of its recovery, whereas, P.W-01/ Rana Azeem Sarwar P.O Customs in his cross examination has stated that case property was kept at Detention Room of ASO H.Q. Prosecution has failed to examine Incharge of Detention Room of ASO H.Q in order to prove that narcotics was kept in safe custody. Record further reflects that opium was recovered on 01.02.2020, whereas, it was received in the official of chemical examiner on 10.02.2020 without any plausible explanation as to where these sample parcels remained from 01.02.2020 to 10.02.2020. Thus prosecution has failed to prove safe custody of the alleged recovered opium and its safe transmission to the chemical examiner. It is the duty of the prosecution to establish that case property was kept in safe custody and it was safely transmitted to the chemical examiner for analysis. 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……..”

12. It would be pertinent to mention here that 9(c) of CNS Act carries capital punishment or imprisonment for life can be awarded even on the testimonies of police officials, in order to bring home guilt against an accused, it is necessary for the prosecution to prove their case through reliable, unimpeachable and confidence inspiring evidence beyond any reasonable doubt. The harder the punishment, the stricter the standard of proof as held in the case of Ahmed Ali and another (supra). In the present case confidence inspiring evidence has not been produced by the prosecution at trial. We hold that trial Court failed to appreciate the evidence according to settled principles of law. 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).

13. Appellant while extending benefit of doubt has already been acquitted by this Court. These are the reasons for our shot order announce on 23.11.2023.

JUDGE

JUDGE