THE HIGH COURT OF SINDH AT KARACHI

Criminal Jail Appeal No. 701 of 2022

Present: Mr. Justice Naimatullah Phulpoto

Justice Mrs. Kausar Sultana Hussain

Appellant : Abdul Ghaffar @ Ghaffar is called absent

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

Date of Hearing : 21.09.2023

Date of judgment : 21.09.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Abdul Ghaffar @ Ghaffar appellant was tried by learned Special Judge, CNS-1/MCTC Thatta for offence under Section 9(b) of CNS Act 1997. After regular trial, vide judgment dated 10.10.2022, appellant was convicted under section 9(b) of CNS Act 1997 and sentenced to 08 months imprisonment and to pay fine of Rs.5,000/- and in default in payment of fine, he was ordered to undergo S.I for 30 days. Appellant was extended benefit of section 382(b) Cr.P.C.

2. Brief facts of the prosecution case are that on 07.01.2022, SIP of 15 QRF left police station along with his subordinate staff and reached at Thatta Sujawal main near Branch Mori, started nap checking and when police signaled a motorcyclist, who was coming from Thatta to stop, but he tried to run away, but he was caught hold and upon personal search, recovered 150 grams of charas from his possession. Mashirnama of arrest and recovery of charas was prepared in presence of mashirs namely PCs Mumtaz Ali and Muhammad Rahim. Thereafter, accused and case property were brought at P.S where FIR No.13/2022 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, they were cross-examined by appellant himself 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.08. 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 assessing the evidence, by judgment dated 10.10.2022, convicted and sentenced the appellant as stated above. Hence, the appellant being dissatisfied with the judgment of conviction against him has filed instant jail appeal through Senior Superintendent Central Jail Hyderabad.

8. Vide order dated 23.12.2022 instant jail appeal was admitted to regular hearing and Senior Superintendent Central Jail Hyderabad was directed to ask from the appellant whether he wishes to engage a counsel of his own choice or to provide him the services of a counsel on state expenses. Appellant responded through Senior Superintendent that he may be provided services of a counsel on state expenses. We have perused jail roll dated 16.05.2023, which reflects that appellant has been released from the prison on 04.05.2023 on completion of his sentence. It appears that after release of the appellant, he did not turn up to contest the appeal on merits. As appeal was admitted to regular hearing, we have decided to dispose of the same on merits.

9. We have heard Addl. P.G for the state and have re-assessed the entire prosecution evidence with his assistance 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 according to SIP Ghulam Asghar, after arrest and recovery, appellant and case property were brought to Police station, lodged the FIR and instead of handing over case property to the incharge Malkhana, it was handed over to the I.O/SIP Qamar-ud-Din, but the evidence of I.O/SIP Qamar-ud-Din is silent to this effect. Record reflects that alleged recovery was effected on 07.01.2022 whereas charas was received in the office of chemical examiner on 12.01.2022 without any plausible explanation as to where remain these sample parcels from 07.01.2022 to 12.02.2022. 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……..”

10. 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).

11. 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 jail appeal is allowed and conviction and sentence passed by learned trial Court are hereby set aside and the appellant is acquitted of the charge. However, since the appellant has been released from prison on completion of his sentence. Therefore, there is no need to issue release writ.

JUDGE

JUDGE