THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 125 of 2023

Present: Mr. Justice Naimatullah Phulpoto

Justice Mrs. Kausar Sultana Hussain

Appellant : Rafaqat Ali @ Munna through Syed Amir Shah advocate

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

Date of Hearing : 22.08.2023

Date of judgment : 22.08.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Rafaqat Ali @ Munna was tried by learned I-Additional Sessions Judge/ Special Court (CNS), Karachi Central for offence under Section 9(b) of CNS Act 1997. After regular trial, vide judgment dated 09.02.2023, appellant was convicted under section 9(b) of CNS Act 1997 and sentenced to 05 years R.I and to pay fine of Rs.40,000/- and in default in payment of fine, he was ordered to undergo S.I for 15 days. Appellant was extended benefit of section 382(b) Cr.P.C.

2. Brief facts of the prosecution case are that on 15.10.2022 at 0100 hours, SIP Shahid Nawaz of PS Azizabad along with his subordinate staff apprehended the appellant from Chota Gate, Yaseenabad graveyard, Block-08 Federal B. Area Karachi on spy information and recovered 520 grams of charas from his possession. Mashirnama of arrest and recovery of charas was prepared in presence of mashirs. Thereafter, accused and case property were brought at P.S where FIR No. 877/2022 u/s 9(b) 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 appellant 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 four 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 at Ex.8. 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 examining the evidence by judgment dated 09.02.2023, 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 mainly argued that charas has been foisted upon the appellant by the police; that the appellant has been falsely implicated in the present. Lastly, it is argued that prosecution has failed to prove safe custody and safe transmission to the chemical examiner. In support of his submissions, reliance is placed upon the case of Zahir Shah alias Shat vs. The State through Advocate General Khyber Pakhtunkhawa (2019 SCMR 2004).

9. Learned Addl. P.G for the state argued that charas recovered from the possession of the appellant was sent to chemical examiner and 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 appellant and prayed for dismissal of the appeal.

10. 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 it’s case for the reasons that it was a case of spy information, no private person was associated to act as mashir. Prosecution evidence is silent on the point that to whom appellant was selling charas. Moreover, prosecution as failed to prove safe custody and safe transmission of the charas to the chemical examiner for the reasons that appellant was arrested on 15.10.2022 at 0100 hours from chota gate, Yaseenabad graveyard, Block-8, F.B. Area, Karachi, accused and case property were brought to the police station where, the case property was handed over to ASIP/HM Amjad Zahid of police station for its’ safe custody at Malkhana of P.S. However, perusal of Register of Malkhana it transpired that nowhere it is mentioned that charas was received by him in sealed condition. During his cross examination, he admitted that he did not mention that whether he had received the property in sealed condition or not. Register of Malkhana also reflects that charas was handed over to the I.O on 16.10.2022, which was deposited by him on the next day. 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. 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 case reported as Tajamal Hussain v. the State (2022 SCMR 1567).

12. 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 appeal is allowed and conviction and sentence passed by learned trial Court are hereby set aside and the appellant is acquitted of the charge. He shall be released forthwith, if not required to be detained in any other custody case.

JUDGE

JUDGE