THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 148 of 2023

Present: Mr. Justice Naimatullah Phulpoto

Justice Mrs. Kausar Sultana Hussain

Appellant : Farooq Ali through Ms. Farah Awan advocate

Respondent : The State through Mr. Siraj Ali Khan Addl. P.G

Date of Hearing : 19.09.2023

Date of judgment : 19.09.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Farooq Ali appellant was tried by learned I-Additional Sessions Judge/ MCTC, Karachi East for offence under Section 9(c) of CNS Act 1997. After regular trial, vide judgment dated 24.02.2023, appellant was convicted under section 9(c) of CNS Act 1997 and sentenced to 03 years R.I and to pay fine of Rs.100,000/- and in default in payment of fine, he was ordered to undergo S.I for 03 months. Appellant was extended benefit of section 382(b) Cr.P.C.

2. Brief facts of the prosecution case are that on 30.06.2022, SIP Qadir Bux along with his subordinate staff left police station for patrolling, during patrolling SIP received spy information that a person was standing near Jugiyan, Block-1, Gulistan-e-Jauhar, in suspicious manner. Police party reached at the pointed place and found a person in suspicious manner, he was caught hold and upon personal search, recovered 1525 grams of charas from his possession. Mashirnama of arrest and recovery of charas was prepared in presence of mashirs namely PCs Pariyal and Muhammad Rafiq. Thereafter, accused and case property were brought at P.S where FIR No. 568/2022 u/s 9(c) 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 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/appellant under Section 342 Cr.P.C at Ex.14. 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 24.02.2023, 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 it was a case of spy information, but SIP Qadir Bux failed to associate any private person to witness recovery proceedings; that case property was not produced during trial and there are over writing in timing and in the weight of the charas allegedly recovered from the possession of the appellant. Lastly, it is argued that prosecution has failed to prove safe custody and safe transmission of charas to the chemical examiner and prosecution case is doubtful. 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. However, Addl. P.G after looking at mashirnama of arrest and recovery at Ex. 6 admits that there are over writing in the timing as well as in the weight of the charas. 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. We have perused the evidence of SIP Qadir Bux recorded before the trial Court which reflects that case property was not produced before trial Court. So far over writing in mashirnama of arrest and recovery is concerned, there is clear over writing in timing of arrest of the appellant as well as in the weight of the allegedly recovered charas from the possession of the appellant. Learned Addl. P.G could not satisfy the court regarding said over writings. Unfortunately, trial Court failed to notice such over writings. Over writing or tempering with memo of arrest certainly undermines the integrity of arrest process. This makes prosecution case doubtful against the accused. Prosecution has also failed to prove safe custody and safe transmission of the charas to the chemical examiner for the reasons that I.O/SIP Inayatullah stated that he received sealed case property on 30.06.2022, but according to the report of the chemical examiner, the same was received in his office on 01.07.2022 and prosecution has failed to establish that where charas was kept for one day. Even incharge Malkhana has not been examined by the prosecution. 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