THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.636 of 2023

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Khadim Hussain Tunio

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Appellant : Raheel Mama son of Qadeer Qureshi through Mr. Naveed Ahmed Ansari, advocate

Respondent : The State through Mr. Ali Haider Saleem, Additional Prosecutor General

Date of Hearing : 04.03.2024

Date of Judgment : 04.03.2024

JUDGMENT

NAIMATULLAH PHULPOTO, J.-- Appellant Raheel Mama son of Qadeer Qureshi was tried by learned Additional Sessions Judge-I/MCTC-I, Karachi, in Sessions Case No.1839 of 2023, for offence under Section 9(1)3(b) of the Control of Narcotic Substances (Amendment) Act, 2022. After regular trial, vide judgment dated 02.11.2023, appellant was convicted under Section 9(1)3(b) of the Control of Narcotic Substances (Amendment) Act, 2022 and sentenced to five (5) years R.I. and to pay fine of Rs.40,000/-, in default whereof to undergo SI for 3 months more. Benefit of Section 382(b) Cr.P.C was also extended to the appellant.

2. Brief facts leading to the filing of the appeal are that on 19.04.2023, SIP Muhammad Ismail of P.S. Shah Faisal Colony on spy information arrested the appellant from Street at 04:00 p.m. in presence of police mashirs and recovered from his possession a shopper containing 575 grams charas. Accused was arrested, mashirnama of arrest and recovery was prepared. Thereafter, accused and case property were brought at P.S where FIR No.186/2023 u/s 9(1)3(b) of CNS (Amendment) Act, 2022 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 before the trial Court.

4. Trial Court framed Charge against the appellant under the above referred section 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.PC at Ex.08, in which appellant claimed false implication in this case and denied the prosecution allegations. Appellant neither examined himself on oath under section 340(2) Cr.PC in disproof of prosecution allegations nor led any evidence in his defence.

7. Trial Court, after hearing the learned counsel for the parties and assessment of evidence, vide judgment dated 02.11.2023, convicted and sentenced the appellant as stated above.

8. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 02.11.2023 passed by the trial Court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9. We have heard the learned counsel for the parties and re-examined the entire evidence available on the record. We have come to the conclusion that the prosecution has utterly failed to establish its case against the appellant, mainly for the reasons that complainant Muhammad Ismail, head of the police party, in his evidence has deposed that on spy information he arrested the appellant from Street at 04:00 p.m. on 19.04.2023 and recovered from his possession one plastic bag, containing charas measuring 575 grams, it was sealed and arrest and recovery memo was prepared in presence of mashirs. Thereafter, accused and case property were brought to the police station where FIR was lodged against the accused on behalf of the State. Investigating Officer has not mentioned in his evidence that after registration of FIR either he handed over the charas to the IO or deposited the same with the Head Moharar of Police Station in Malkhana. On the point of safe custody and safe transmission of charas, PW Muhammad Ismail has also said nothing. However, Head Moharar of Police Station PW-3 had deposed that charas was deposited by SIP Muhammad Ismail in his Malkhana. At the cost of repetition, it may be mentioned that evidence of SIP Muhammad Ismail and mashirs is silent on the point of safe custody and safe transmission to chemical examiner. No doubt, the report of the chemical examiner produced in evidence is positive but it will not improve the case of the prosecution for the reason that SIP Muhammad Ismail and PC Muhammad Aslam have failed to establish the chains of safe custody and safe transmission of the case property to expert. 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 1997 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 the 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. Learned advocate for the appellant further argued that prior to this case, two more cases of the same nature were lodged by the police against the appellant and he has been acquitted those cases. Thereafter, application was moved on behalf of the appellant to the Director General Rangers that police was trying to involve the appellant in other false cases though he was confined in jail and his house was raided. We have perused the judgments, the same are available in the R and Ps of the trial Court. Those acquittal judgments have been passed in Special Cases Nos.2975/2020 and 3705/2021. Trial Court had also failed to consider the defence plea.

11. We have no hesitation to hold that prosecution has failed to prove its case against the appellant beyond any shadow of 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 vide judgment dated 02.11.2023 are hereby set aside and appellant Raheel Mama son of Qadeer Qureshi is acquitted of the charge. He shall be released forthwith, if not required to be detained in any other custody case.

J U D G E

J U D G E

Gulsher/PS