THE
HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No.642
of 2022
Present: Naimatullah Phulpoto, J
Irshad Ali Shah, J
Appellant : Asadullah son of Sherzada through
Mr. Iqbal Shah, Advocate
Respondent : The State through M/s Abrar Ali
Khichi & Ali Hyder Saleem, Addl: Prosecutors General Sindh
Date of Hearing : 24.09.2024
Date of judgment : 24.09.2024
JUDGMENT
NAIMATULLAH
PHULPOTO, J.- Appellant
Asadullah son of Sherzada was tried by learned Special Judge
Narcotics/Additional Sessions Judge-VII/MCTC-2, Karachi Central in Special Case
No.675/2021 (FIR No.251/2021 of PS Paposh
Nagar, under section 9(c) of the Control of Narcotic Substances Act, 1997).
After regular trial, vide judgment dated 26.10.2022, appellant was convicted under section 9(c) of
the Control of Narcotic Substances Act, 1997 and sentenced to 9 years R.I. and
to pay fine Rs.100,000/-, in default whereof to undergo S.I. for one year more.
2. Brief facts leading to the filing of instant
appeal are that on 26.05.2021, SIP Shahid Nawaz left along with his subordinate
staff for patrolling duty, while patrolling at various places, police party
reached at Zakia Masjid at 0340 hours, where saw the present accused standing
in suspicious manner, he was surrounded and caught hold. On enquiry, he
disclosed his name as Asadullah son of Sherzada, from his personal search, one
piece of charas was recovered, on weighment it became 1235 grams. Mashirnama of
arrest and recovery was prepared in presence of mashirs, namely, PCs Kashan and
Kamran and contraband, so recovered was sealed. Accused and case property were
brought to the police station where FIR against accused was lodged on behalf of
State vide Crime No.251/2021 for offence punishable under Section 9(c) of CNS
Act 1997 at PS Paposh Nagar, Karachi. Charas was sent to Chemical Examiner.
Other codal formalities were completed. After completion of investigation and
securing positive report of Chemical Examiner, police filed challan against the
accused before trial Court.
3. After framing charge, prosecution
examined 04 witnesses.
4. After closure of prosecution evidence,
entire incriminating evidence appearing against accused was put to him in his
statement recorded under Section 342 Cr.P.C. Accused denied prosecution’s case
and took the defence of false implication. However, accused examined himself on
oath but did not lead evidence in his defence.
5. After hearing learned counsel for the
parties, trial Court has convicted the accused for commission of offence
punishable under Section 9(c) of CNS Act 1997 and sentenced him as referred
above.
6. Learned counsel for the appellant mainly
contended that police party was patrolling at the relevant time when it is
alleged that appellant was arrested and mashirnama of arrest and recovery was
prepared on the light of cellular phone but such phone was not produced before
the trial Court. It is further submitted that description of charas has not
been mentioned in masahirnama; that there is overwriting in timings when the
police party arrested the appellant on 26.05.2021; that the prosecution has
failed to prove the safe custody and safe transmission of charas to the
Chemical Examiner before the trial Court. Lastly, it is argued that the trial
Court has failed to appreciate the evidence according to the settled principles
of law. Reliance is placed upon the case of Zahir Shah alias Shat vs. The State through Advocate General Khyber
Pakhtunkhawa (2019 SCMR 2004).
7. Learned
Additional Prosecutor General Sindh argued that prosecution has succeeded to
prove its case against the appellant. Additional Prosecutor General Sindh has
no reply with regard to overwriting in timings of arrest and recovery at 0340
hours. Addl. P.G. after going through the evidence submitted that source of
light on which mashirnama of arrest and recovery was prepared was not produced
before the trial Court. However, he prayed for dismissed of appeal.
8. We have carefully heard learned counsel
for the parties and re-examined the entire evidence available on record.
Prosecution has failed to prove its case beyond any reasonable doubt for the
reasons that the police party was on patrolling on the relevant night and it is
alleged that the appellant was found in suspicious manner, near graveyard. P.W-01
along with other police officials nabbed the appellant and recovered 1235 grams
of charas from him, it was taken into possession, mahsirnama of arrest and
recovery was prepared on the light of mobile phone, case property was sealed
and accused was brought to police station, neither
spot was photographed nor video was graphed. It is the case of the
prosecution that appellant was selling charas but no one was found at the place
of incident. We have perused the mashirnama of arrest and recovery, there is
overwriting in the timings i.e. 0340 hours, which is clear with the naked eye,
prosecution has no reply to explain such over-writing made in the mashirnama
Ex.3/B. It is the case of prosecution that mashirnama of arrest and recovery
was prepared on the light of mobile/cellular phone but neither such mobile was
produced before the IO nor before the trial Court. So
far as the description of recovered narcotic substance is concerned, in the
mashirnama it is mentioned that charras was in chitter form but we have perused the report of the chemical
examiner which shows that it was a slab, it is clear contradiction. As regards
to the safe custody and safe
transmission of the sealed parcel to the chemical examiner is concerned, WHC
has also been examined at Ex.6 and he has clearly stated in his evidence that
in Register No.19, Ex.5/J, it is not mentioned that who handed over him the
case property for depositing the same in the malkhana, this omission would be fatal
to the prosecution case.
9. 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 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……..”
10. In view of the discussion made above,
this Court is of the view that the learned trial Court has fallen in error by
relying upon the evidence of police officials, which do not inspire confidence
and no ring of truth has been found in those statements, by this Court, in
judicial re-examination. 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.
11. Consequently,
instant Criminal Appeal is allowed, conviction and sentence recorded by learned
Special Judge CNS Karachi South vide judgment dated 26.10.2022 are set aside.
Appellant Asadullah son of Sherzada is
acquitted of the charges in Special Case
No.675 of 2021 (FIR No.251/2021, registered at P.S. Paposh Nagar, under
section 6/9(c) of the Control of Narcotic Substances Act, 1997). Appellant be released forthwith, if not required
in some other custody case.
12. These are the reasons for the short order
announced on 24.09.2024.
J U D G E
J
U D G E
Gulsher/PS