THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 461 of 2023

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Zulfiqar Ali Sangi

Appellant : Mukhtiar Khan through Mr. Maroof Hussain Hashmi advocate

Respondent : The State through Mr. Khadim Hussain Addl. P.G

Date of Hearing : 14.05.2024

Date of announcement : 14.05.2024

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Mukhtiar Khan appellant was tried by learned IV-Additional Sessions Judge/Special Court (CNS), Malir Karachi in S.C.No. 1123/2023 for offence under Section 9(1)(3)(c) of CNS Act 1997. After regular trial, vide judgment dated 30.08.2023, appellant was convicted under section 9(1)(3)(c) of CNS Act 1997 and sentenced to undergo 10 years R.I and to pay fine of Rs.300,000/- and in default in payment of fine, he was ordered to undergo S.I for 04 months. Appellant was extended benefit of section 382(b) Cr.P.C.

2. Brief facts leading to filing of the appeal are that on 17.03.2023 SIP Nadeem Riaz was posted at P.S Quaidabad. On the same date he left P.S along with his subordinate staff for patrolling. During patrolling when police party reached at Rehri road near Ahson ground and found appellant standing there in suspicious manner. It was 0530 hours, appellant was arrested and his personal search was conducted in presence of mashirs namely PCs Abdul Rehman and Samiullah. During search, one plastic shopper containing one packet of charas wrapped in yellow solution tape weighing 1040 grams as well as mobile phone G-five golden color were recovered. Charas was sealed in presence of mashirs. Thereafter, accused and case property were brought to the police station Quaidabad, where FIR vide Crime No. 164/2023 under Section 9(1)(3)(c) of CNS Act, 1997 was registered on behalf of state. Charas was handed over to the Incharge Malkhana for the safe custody.

3. During investigation, charas was sent to chemical examiner for analysis 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 and denied the prosecution allegations. 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 30.08.2023, 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. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 30.08.2023 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9. Learned advocate for the appellant mainly argued that place of recovery was Rehri road near Ahson ground, it was morning time, no private person was associated by the police officials; that P.W-02 SIP Nadeem Riaz has deposed that after arrest and recovery police party came to the police station and handed over Charas to head Moharir for safe custody but on the same point, evidence of P.W-03/mashir Abdul Rehman is silent. It is also argued that according to case of prosecution, charas was recovered from the possession of the appellant on 17.03.2023 but it was dispatched to the chemical examiner beyond 72 hours on 20.03.2023 for which no plausible explanation has been furnished. Lastly, learned advocate for the appellant argued that there are material contradictions in the case of prosecution. He has referred to the evidence of P.W-02 who was head of patrolling party; he has deposed before the trial Court that after arrest of accused, case property was sealed at spot but P.W-03/mashir Abdul Rehman has deposed that case property was sealed at P.S. Learned advocate for the appellant lastly argued that prosecution has failed to prove safe custody and safe transmission of the charas to the chemical examiner; that prosecution case is doubtful.

10. Mr. Khadim Hussain Addl. P.G argued that police party headed by SIP Nadeem Riaz arrested appellant at Rehri road and recovered from his possession 1040 grams of Charas and cellular phone; mashirnama of arrest and recovery was prepared, case property was sent to chemical examiner and according to Addl. P.G report was positive. Learned Addl. P.G submits that prosecution has succeeded to prove its’ case against the appellant. So far contradictions in the case of prosecution are concerned, he argued that these contradictions are minor in nature and are not fatal to the case of prosecution. There is huge evidence to connect the appellant in the offence. Addl.P.G prayed for dismissal of the appeal.

11. We have carefully heard learned counsel for the parties, re-examined the whole prosecution evidence and come to the conclusion that prosecution has failed to establish its’ case against the appellant for the reasons that P.W-02 SIP Nadeem Riaz, head of patrolling party has deposed that after arrest of the appellant, charas weighing 1040 grams was recovered from his possession and sealed at spot in presence of mashirs. However, P.W-03 Abdul Rehman has deposed that charas was sealed at police station. P.W-02 SIP Nadeem Riaz deposed that he handed over case property to head Moharir as soon as he reached at P.S. P.W-03 Abdul Rehman, who is mashir and was accompanied with the P.W-02, is silent in this regard. Prosecution has also failed to bring on record that who was head Moharir at the relevant time at police station. Charas was recovered from possession of appellant on 17.03.2023 and dispatched to chemical examiner on 20.03.2023. Delay in sending charas to chemical examiner has not been explained by prosecution. Prosecution utterly failed to prove safe custody and safe transmission of the charas from the spot of recovery till its receipt by chemical examiner. This chain of custody is fundamental as the report of Government Analyst is the main evidence for the purpose of conviction. Prosecution must establish that chain of custody was unbroken, safe and secure but in the present case safe custody and safe transmission could not be established as stated above. Thus, conviction recorded by trial Court is not sustainable under the law as held in the case of Zahir Shah alias Shat vs. The State through Advocate General Khyber Pakhtunkhawa (2019 SCMR 2004). Relevant portion is reproduced as under:

“………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……..”

12. According to prosecution case, appellant was arrested by the police on 17.03.2023 from Rehri road, near Ahsan ground and from his possession 1040 grams Charas and cellular phone were recovered but SIP Nadeem Riaz, head of patrolling party failed to collect material/evidence through modern devices at the time of arrest of the appellant and recovery of charas from him as required under the provisions of Qanun-e-Shahadat Order, 1984.

13. 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).

14. 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 Mukhtiar Khan son of Laj Burkhan 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

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