THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 175 of 2023

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Khadim Hussain Tunio

Appellant : Zafar Ali Talpur advocate for the appellant

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

Date of Hearing : 17.01.2024

Date of Judgment : 24.01.2024

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Zohaib Ali Samo appellant was tried by learned Special Judge, CNS, Thatta in Special Case No. 91 of 2022 for offence under Section 9(c) of CNS Act 1997. After regular trial, vide judgment dated 25.02.2023, appellant was convicted under section 9-3(c) of CNS (Amendment) Act 2022 and sentenced to 10 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 06 months. Appellant was extended benefit of section 382(b) Cr.P.C.

2. Brief facts of the prosecution case are that on 11.10.2022, SIP Manzoor Ali Chandio, posted at CIA Thatta, left P.S along with his subordinate staff for patrolling duty, when police party reached at Attock Petrol Pump National Highway, SIP Manzoor Ali Chandio received spy information that a person was selling charas at Nandi Allahkhai. Police party reached at the pointed place at 1230 hours and found a person standing there, who was carrying a shopper in his hand. On enquiry, accused disclosed his name as Zohaib Ali. It is alleged that said person tried to escape but was apprehended by the police and from his possession one shopper was secured containing four pieces of charas, on weighing, it became 1780 grams. Mashirnama of arrest and recovery was prepared in presence of mashirs namely PCs Ahmed Khan and Ali Nawaz; accused and case property were brought to the police station where FIR vide Crime No. 253/2022 under Section 9(c) of CNS Act, 1997 was registered on behalf of state.

3. During investigation, charas was sent to chemical examiner and positive report was received. On conclusion of 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.9. 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 examining the evidence by judgment dated 25.02.2023, 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. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 25.02.2023 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 prosecution has failed to prove safe custody and safe transmission of the charas to the chemical examiner; that neither Head Moharir of the police station nor PC Rafiq Ahmed, who had taken charas to the chemical examiner has been examined; that even though it was a case of spy information, no private person was associated to witness the arrest and recovery. Lastly, it is argued that prosecution has failed to prove its’ case against the appellant.

10. Mr. Khadim Hussain Addl. P.G argued that evidence of police officials is confidence inspiring, reliable and corroborated by positive report of chemical examiner. As regards safe custody and safe transmission of the charas to the chemical examiner is concerned, he argued that no question with regard to tempering of the charas at Malkhana of the police station was put up to the prosecution witnesses and even report of the chemical examiner depicts that seal on the parcel was intact. Thus, prosecution has established safe custody and safe transmission of the charas. He prayed for dismissal of the appeal.

11. After hearing learned counsel for the parties, we have re-examined the entire prosecution evidence produced before the trial Court and have come to the conclusion that prosecution has failed to prove it’s case against the appellant for the reasons that from the evidence it appears that prosecution has also failed to prove safe custody and safe transmission of the charas to chemical examiner for the reasons that SIP Manzoor Ali Chandio, head of the police party has deposed that he brought accused and case property at P.S where he lodged the FIR against him. No where he has deposed that either he deposited charas with the incharge of Malkhana or handed it over to the I.O of this case. P.W-02 PC Ahmed Khan has also neither deposed that charas was deposited with the Incharge of Malkhana nor it was handed over to the I.O. However, P.W-03 SIP Muhammad Hashim deposed that charas was deposited in the Malkhana. Record reflects that alleged recovery was effected on 11.10.2022, whereas sample parcels were received in the office of chemical examiner on 12.10.2022 without any plausible explanation as to where remain sample parcel from 11.10.2022 to 12.10.2022. Prosecution has failed to establish safe custody and safe transmission of the sealed sample parcel to the chemical examiner as Moharrar, who kept the sample parcel in the Malkhana and PC Rafiq Ahmed, who delivered the sample parcel to the office of Forensic Science Laboratory, were not produced by the prosecution.

12. 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 Muhammad Hazir vs. The State (2023 SCMR 986), the Apex court held that:

“3.    After hearing the learned counsel for the appellant as well as the learned state counsel and perusing the available record along with the impugned judgment with their assistance, it has been observed by us that neither the safe custody nor the safe transmission of the sealed sample parcels to the concerned Forensic Science Laboratory was established by the prosecution because neither the Moharrar nor the Constable Shah Said (FC-2391) who deposited the sample parcels in the concerned laboratory was produced. It is also a circumstance that recovery was affected on 10.02.2015 whereas the sample parcels were received in the said laboratory on 13.02.2015 and prosecution is silent as to where remained these sample parcels during this period, meaning thereby that the element of tampering with is quite apparent in this case. This Court in the cases of Qaiser Khan v. The State through Advocate-General, Khyber Pakhtunkhwa, Peshawar (2021 SCMR 363), Mst. Razia Sultana v. The State and another (2019 SCMR 1300), The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), Ekramullah and others v. The State (2015 SCMR 1002) and Amjad Ali v. The State (2012 SCMR 577) has held that in a case containing the above mentioned defect on the part of the prosecution it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond any reasonable doubt.

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 Zohaib Ali Samo is acquitted of the charge. He shall be released forthwith, if not required to be detained in any other custody case.

JUDGE

JUDGE