THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeals No. 142 and 160 of 2023

Present: Mr. Justice Naimatullah Phulpoto

Justice Mrs. Kausar Sultana Hussain

Appellants : Punhoon Jamali through M/s Qazi Inamullah and Babar Ishaque advocates

Abdul Ghafoor through M/s. Zakir Hussain Bughio and Ghulam Mustafa Katpar advocates

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

Date of Hearing : 09.08.2023

Date of judgment : 09.08.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Punhoon and Abdul Ghafoor appellants were tried by learned Special Judge (CNS), Thatta for offence under Section 9(c) of CNS Act 1997. After regular trial, vide judgment dated 05.02.2023, appellants were convicted under section 9(c) of CNS Act 1997 and sentenced to 10 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 06 months. Appellants were extended benefit of section 382(b) Cr.P.C.

2. Brief facts of the prosecution case as disclosed by SIP Abdul Mutalib in his evidence are that on 18.10.2022, he left police station along with his subordinate staff for patrolling duty and received spy information that at Faizo Hotel appellants were carrying black colored shoppers in their hands and were standing at Ladhya stop for conveyance. Police party proceeded there and saw both the appellants on head lights of vehicle at about 2330 hours. They were caught hold by the police; from personal search of appellant Punhoon, four big pieces of charas weighing 2000 grams were recovered; from personal search of appellant Abdul Ghafoor, three big pieces of charas weighing 1500 grams were recovered. Thereafter, mashirnama of arrest and recovery was prepared in presence of mashirs ASI Ghulam Haider Janwari and PC Jameel Ahmed, case property was sealed at spot and brought accused and case property to the police station where FIR vide Crime No. 103/2022 under Section 9(c) of CNS Act, 1997 was registered at P.S Mirpur Sakro 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 appellant under the above referred section. FIR/case was entrusted to SIP Ali Khan Rahojo for further investigation.

4. Trial Court framed Charge against appellant under the above referred sections at Ex.03, 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 statement of accused/appellants under Section 342 Cr.P.C at Ex.9 & 10 respectively. Appellants claimed their false implication in the present case and raised plea that they have been implicated in this case falsely at the behest of one Iqbal Khaskheli as an amount of Rs.150,000/- was outstanding against him. 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 appellants, prosecutor and while examining the evidence by judgment dated 25.02.2023, convicted and sentenced the appellants as stated above. Hence, the appellants being dissatisfied with the judgment of conviction against him has filed instant appeals.

8. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 25.02.2023 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9. Learned advocates for the appellants made the following submissions:

(i) That WHC Abdul Hussain/Incharge Malkhana of PS Mirpur Sakro has not been examined by the prosecution at trial.

(ii) PC Jameel Ahmed had taken narcotics substance to chemical examiner has not been examined by the prosecution at trial.

(iii) That there are material contradictions in the evidence of the prosecution witnesses on the point of presence of private persons at the place of recovery.

(iv) That there is overwriting in entry No.42 at Ex.No.6/D, prosecution has failed to explain it.

(v) That safe custody and safe transmission of the charas to the chemical examiner have not been established by the prosecution before trial Court.

(vi) That defence plea raised by the appellants before the trial Court has not been discussed by the trial Court while assessing the prosecution evidence.

In support of their contentions reliance has been placed upon the cases reported as Akthar Gul vs. The State ( 2022 SCMR 1627), Abdul Ghani vs. The State (2022 SCMR 2121) and Lal Jan vs. The State (2023 SCMR 1009).

11. Learned Addl. P.G for the state argued that appellants were arrested by the police officials on 18.10.2022 at Ladhya stop and from their possession charas was recovered, report of chemical examiner was positive. He further argued that evidence of police official was reliable and confidence inspiring. Lastly, argued that prosecution has proved its’ case against the appellants and prayed for dismissal of the appeals.

12. After hearing learned counsel for the parties, we have re-examined the entire prosecution evidence minutely 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 appellant were arrested on 18.10.2022 at Ladhya stop, accused and case property were brought to the police station where, the case property was handed over to WHC Abdul Hussain of police station for its’ safe custody at Malkhana of P.S. Admittedly, incharge Malkhana has not been examined by the prosecution. Record further reflects that as per chemical report (Ex.6/E), the sealed sample parcel was delivered in the office of chemical examiner by PC Jameel Ahmed, he has also not been examined by the prosecution. Non-examination of these two material witnesses draws an adverse presumption against the prosecution under Article 129(g) of Qanun-e-Shahadat Order, 1984, so safe custody and safe transmission of the sample parcel to the chemical examiner has not been proved by the prosecution. In the case reported as Said Wazir and another vs. The State and others (2023 SCMR 1144), the apex Court has held as under:

“3.    Heard and perused the record. It has been observed by us that recovery was effected on 09.06.2016 whereas sample parcels were received in the office of chemical examiner on 13.06.2016 without any plausible explanation as to where remain these sample parcels from 09.06.2016 to 13.06.2016. The safe custody and safe transmission of the sealed sample parcels has also not been established by the prosecution as Moharrar, who kept the sample parcel in the Malkhana and the concerned Constable (FC No. 1374), who delivered the sample parcel to the office of Forensic Science Laboratory, were not produced by the prosecution. Even the prosecution failed to prove the ownership of the vehicle. This court in the cases of Qaiser Khan v. The State through Advocate General, Khyber Pakhtunkhwa, Peshawar (2021 SCMR 363), Mst. Razia Sultana v. The State and another (2019 SCMR 1300), The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), Ikramullah and others v. The State (2015 SCMR 1002) and Amjad Ali v. The State (2012 SCMR 577) has held that in a case containing the above mentioned defect on the part of the prosecution, it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond any reasonable doubt.”

13. Admittedly, defence version has not been considered by the trial Court. Overall, putting two versions in juxtaposition allows that more comprehensive examination and can be powerful tool for the courts to makes their observation more effectively. Unfortunately it was not done by the trial Court.

14. Even otherwise, 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 cases reported as Tajamal Hussain v. the State (2022 SCMR 1567), Sajjad Hussain v. the State (2022 SCMR 1540), Abdul Ghafoor v. the State (2022 SCMR 1527 SC), Kashif Ali v. the State (2022 SCMR 1515), Muhammad Ashraf v. the State (2022 SCMR 1328), Khalid Mehmood v. the State (2022 SCMR 1148), Muhammad Sami Ullah v. the State (2022 SCMR 998), Bashir Muhammad Khan v. the State (2022 SCMR 986), The State v. Ahmed Omer Sheikh (2021 SCMR 873), Najaf Ali Shah v. the State (2021 SCMR 736), Muhammad Imran v. the State (2020 SCMR 857), Abdul Jabbar v. the State (2019 SCMR 129), Mst. Asia Bibi v. the State (2019 PLD 64 SC), Hashim Qasim v. the State (2017 SCMR 986), Muhammad Mansha v. the State (2018 SCMR 772), Muhammad Zaman v. the State (2014 SCMR 749 SC), Khalid Mehmood v. the State (2011 SCMR 664), Muhammad Akram v. the State (2009 SCMR 230), Faheem Ahmed Farooqui v. the State (2008 SCMR 1572), Ghulam Qadir v. the State (2008 SCMR 1221) and Tariq Pervaiz v. the State (1995 SCMR 1345).

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, these appeals are allowed and conviction and sentence passed by learned trial Court are hereby set aside and the appellants are acquitted of the charge. They shall be released forthwith, if not required to be detained in any other custody case.

16. These are the reasons for the short order announced on 09.08.2023.

JUDGE

JUDGE