IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.
Special Crl. Jail Appeal No.D-106 of 2016
Present:
Mr. Justice Yousuf Ali Sayeed,J
Mr.
Justice Zulfiqar Ali Sangi,J.
Appellant: Sajid
Ali son of Abdul Ghafoor by caste Bhutta through M/s Mehfooz Ahmed Awan and
Farhan Ali Shaikh, advocates for the appellant
The State: Through
Mr.
Aftab Ahmed Shar, Additional P.G.
Date of hearing: 17.10.2023.
Date of decision: 13.12.2023.
J U D G M E N T
Zulfiqar
Ali Sangi, J.– The
appellant named above has filed instant Crl. Jail Appeal through Senior
Superintendent Central Prison and Correctional Facility Sukkur, whereby he has
impugned the judgment dated 25.05.2016 passed by Sessions Judge/Special Judge
for CNSA, Ghotki in Special Case No.14/2013 (Re. The State Vs. Sajid Ali Bhutta)
arising out of Crime No. 01/2013 offence u/s 9 (c) CNS Act, 1997 registered at EPS
Ubauro, District Ghotki, whereby he was convicted and sentenced to suffer
imprisonment for life and to pay fine of Rs.100,000/- or in default to suffer S.I
for one year more with benefit of 382-B Cr.P.C, hence he preferred the instant
appeal.
2.
Precisely, the facts of the case are
that on 22.05.2013, Excise Inspector Hussain Bux Larik lodged FIR at police
station Excise Ubauro, alleging therein that on that day he along with ETI
Hassan Ali Dashti, ETI Abdul Sami Pitafi, ETI Fahim Ali Bhutto and ETI Jam Ali
Baboo Dahar, subordinate staff EC Ghulam Murtaza, EC Farhan Ali, EC Javed, EC
Khalid Hussain, EC Illahi Bux, EC Muhammad Ramzan was present at EPS Ubauro,
where he received spy information on mobile phone that one truck bearing
registration No. K-7802 having load of urea bags containing Chars which is going
towards Sukkur from Sadiqabad, will cross at any time. On receiving such
information, they all proceeded vide entry No. 01, and at 06.00 am they reached
at National Highway at Imtiaz Petrol pump in order to snap the informed truck.
It was about 07.00 a.m, they stopped the truck which was cautioned to be stop in
which only driver was sitting and he was alighted and interrogated who
disclosed his name to be Sajid Ali son of Abdul Ghafoor by caste Bhutta r/o Khan
Wala Taluka Jatoi, District Muzafargarh. He disclosed that urea bags are loaded
in the truck, being suspect, he was searched in presence of mashirs ETI Hassan
Ali Dashti and EC Ghulam Murtaza Khaskheli, from his front pocket currency notes
of Rs.4000/-, a driving license and copy of his CNIC were recovered. They
boarded on the truck and found bags of Sona Urea and under which gunny bags of
different colors were lying. On opening the same, they found packets of
different color containing Chars which were counted and became 60 gunny bags,
20 packets of chars were found in each gunny bag, total packets became 1200,
which were weighed on the spot and became one Kilogram each, total became 1200
kilograms. They separated 100 grams from each packet and sealed in white paper
for Chemical Examination and remaining packets were separately sealed in same
gunny bags. During further search of truck, one registration book, route permit
in the name of Ghulam Shah Son of Gharat Shah Resident of Maroof Khel Taluka
Bara Agency were recovered. Thereafter, mashirnama of arrest and recovery was
prepared in presence of above named mashirs. Then, accused and case property were brought to EPS Ubauro where FIR against
the present appellant was lodged on behalf of the State. It was recorded vide
crime No.01/2013 u/s 9 (c) of CNS Act, 1997.
3. The
investigation officer recorded 161 Cr.P.C. statements of the PWs, samples were
sent to the chemical examiner for report through EC Javed Ahmed. Positive
report of the chemical examiner was received. On the conclusion of usual
investigation, challan was submitted against the appellant/accused u/s 9 (c) of
CNS Act, 1997.
4. After
completing legal formalities, the trial Court framed charge against accused to
which he pleaded not guilty and claimed to be tried.
5. At
the trial, prosecution examined PW-1 complainant /IO Inspector Hussain Bux
Larik, who produced mashirnama, FIR, attested copy of roznamcha entry, letter
through which samples were sent to Chemical Examiner Laboratory, letter issued to
registration authority, receiving letter of Chemical Examiner, Chemical
Examiner Report and letter of ownership of truck, PW-2 mashir ETI Hassan Ali
Dashti was examined in support of the evidence of complainant. Thereafter the
side of the prosecution was closed.
6. The
appellant was examined under section 342 Cr.PC, wherein he denied the
allegations leveled against him and pleaded his innocence. After hearing the
parties and assessment of the evidence against the accused, trial Court
convicted and sentenced the accused as stated above against the said conviction
accused preferred the appeal.
7. Learned counsel for the appellant mainly
argued that the appellant is innocent and has been falsely implicated in this
case; that no independent witnesses were associated despite information in
advance which makes the case doubtful; that the mode and manner of the incident
shown by the prosecution is not appealable to a prudent mind; that major
contradictions were available in the evidence of witnesses but the same were
not considered by the trial court; that all the witnesses are police officials
and the mashir is subordinate of the complainant, therefore, their evidence
cannot be relied upon; that the trial court ignored the provisions of section
367 Cr.P.C while passing the impugned judgment. Lastly, he submits that the
entire case of the prosecution is doubtful therefore by extending the benefit
of doubt the appellant may be acquitted by allowing his appeal. In support of
contentions he relied upon the cases of Muhammad Siddique vs. The State (2018
SCMR 71), Imtiaz alias Taj vs. The State (344), Abdul Ghafoor vs. The State and
another (2022 SCMR 819), Mureed Majeedano vs. The state (2023 P Cr. L J 961),
Bashir Begum vs. The State (2019 YLR 1585).
8. On the other hand, learned APG has
contended that the prosecution has successfully proved its case by examining
the P.Ws, who have no enmity with the appellant; that there are eyewitnesses
who deposed that in their presence the appellant were arrested and narcotics was
recovered from them under the mashirnama of arrest and recovery; that no major
contradiction is pointed out by the defence counsel; that all the P.Ws have
supported the prosecution case, therefore, conviction and sentence awarded by
the trial court requires no interference by this court and the appeal of the
appellant is liable to be dismissed. He relied upon the cases of Abdul Wahab
and another vs. The State (2019 SCMR 2061), Liaqat Ali and another vs. The
State (2022 SCMR 1097), Zain Ali vs. The State (2023 SCMR 1669) and an
unreported judgment of this court dated: 29-05-2023 in Sp. Cr. Jail Appeal No.
D-85 of 2018, Zanwar Hussain vs. The State.
9. We have heard learned counsel for the
appellant as well as learned APG for the State and perused the material
available on record with their able assistance.
10. As per the mashirnama of recovery 100/100
grams were separated from each packet as samples for chemical examination and
each sample was wrapped in white paper and all samples were sealed separately.
The remaining property was packed and sealed in same 60 bags each bag contains
20 packets of chars. Mashirnama and the FIR does not disclosed about the
sealing of the samples in different bags. The complainant (PW-1) who is also
the investigation officer of the case at the time of recording his
examination-in-chief deposed that the samples were sealed in three bortas
(begs), each borta was containing 400 grams of chars. The mashir (PW-2) in his
examination-in-chief does not support the version of complainant in respect of
the sealing of the samples in three bags and each bag contains 400 grams. The
chemical examiner’s report also not support the version of complainant
(investigation officer) as the same does not reflect receiving the samples in three
bortas (bags). This aspect alone is sufficient to hold that the recovery as
alleged by the prosecution is doubtful. Further the complainant during his
cross-examination stated that chars present in court is consisting of plastic
wrappers of different brand names such as Caffe Crema etc and the same descriptions
are not mentioned in the mashirnama of recovery or in the FIR. The complainant
also admitted during the cross-examination that the samples sent for chemical
examination do not match with remaining property. The urea bags which were 178
in number among them bags containing chars were recovered and the same urea bags
were not produced before the trial court. The above-noted contradictions and the deficiencies clearly indicate that
the complainant and mashir were not the true eye-witnesses of the incident and no
such incident of arrest of accused and recovery of chars had occurred as
alleged by the prosecution. Taking notice of the above situation, we are clear
in our mind that the prosecution failed to prove its case against the appellant
beyond shadow of reasonable doubt and the recovery has not been satisfactorily
proved.
11. As per the case of prosecution the recovery
was affected on 22-05-2013 whereas the chemical examiner’s report reflects that
samples received on 23-05-2013, where the samples were in between the interval
period there is no evidence. The complainant not deposed a single word that
either the samples were deposited in the Malkhana or the same were handed over
to anyone for keeping the same in safe custody. In view of the above it can
safely be held that the safe custody of samples has not been proven by the
prosecution. The safe transmission of the samples is also under the clouds as
none of the witness deposed a single word that who took the samples for
depositing at the chemical laboratory. From perusal of the chemical examiner’s
report it reflects that the samples were deposited by EC Javed Ahmed and
prosecution failed to examine EC Javed Ahmed. The letter authorizing the EC
Javed Ahmed for depositing the samples in the laboratory and the RC (road
certificate) for transmission of the samples has also not been
produced/exhibited by the prosecution before the trial court. It is observed
that mere heinousness of the charge and recovery of huge quantity of the
alleged contraband is no ground to convict accused. The prosecution is under a
bounden responsibility to drive home the charge by proving each limb of its
case that essentially included production of the witness, tasked with the
responsibility of transmitting the samples to the office of Chemical Examiner.
Failure is devastatingly appalling with unredeemable consequences that cast
away the entire case. In this regards the Supreme Court in case of Mst. Razia Sultana vs. The State and another
(2019 SCMR 1300), has held as under:-
2.
At the very outset, we have noticed that the sample of the narcotic drugs was
dispatched to the Government Analyst for chemical examination on 27.2.2006
through one Imtiaz Hussain, an officer of ANF but the said officer was not
produced to prove safe transmission of the drug from the Police to the chemical
examiner. The chain of custody stands compromised as a result it would be
unsafe to rely on the report of the chemical examiner. This Court has held time
and again that in case the chain of custody is broken, the Report of the
chemical examiner loses reliability making it unsafe to support conviction.
Reliance is placed on State v. Imam Bakhsh 2018 SCMR 2039).
3. For the above reasons the
prosecution has failed to establish the charge against the appellant beyond
reasonable doubt, hence the conviction and sentence of the appellant is set
aside and this appeal is allowed, setting the appellant at liberty unless
required in any other case.
In another case of Zahir Shah alias Shat vs. The State
through Advocate General, Khyber Pakhtunkhwa (2019 SCMR 2004), the Supreme Court has held as under:-
2.
We have reappraised the evidence with the able assistance of learned counsel
for the parties and have noticed at the very outset that the Police constable,
bearing No.FC-688, who delivered the sealed parcel to the Forensic Science
Laboratory, Peshawar on 27.2.2013 was not produced by the prosecution. This
fact has been conceded by the learned law officer appearing on behalf of the
respondents. 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. Reliance is placed on
State v. Imam Bakhsh (2018 SCMR 2039).
12.
Recently the Supreme Court of Pakistan
in the case of Qaiser and another vs. 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 prosecution’s
bounden 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. The State
(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.
After our reassessment of the evidence
we have found that in the present case there are also a number of legal
infirmities/lacunas, which have created serious doubt in the prosecution case.
It is a settled principle of law that for extending the benefit of the doubt
there do not need to be multiple circumstances creating doubt. 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 Hon'ble
Supreme Court 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 9 be
many circumstances creating doubt. If there is a 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.
Thus based on the particular facts and
the circumstances of the present case and by relying on the above precedents of
the Apex Courts, we find that the prosecution has failed to prove the case
against the appellant beyond a reasonable doubt by producing reliable,
trustworthy and confidence-inspiring evidence. Therefore, we allow the instant
appeal, set aside the impugned judgment dated 25-05-2016, passed by the Session
Judge/Special Judge (CNSA), Ghotki in special CNSA case No. 14/2013 arising
from Crime No.01/2013 U/s 9(C) CNS Act, 1997 of P.S. Excise Ubauro and acquit
the appellant Sajid Ali Bhutto s/o Abdul Ghafoor from the charges by extending
him the benefit of the doubt. He shall be released forthwith if not required in
any other custody case.
15.
The above Criminal Jail appeal is disposed of in the above terms.
JUDGE
JUDGE