IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Before:

Mr. Justice Omar Sial

Mr. Justice Khalid Hussain Shahani

Criminal Appeal No.D-88 of 2019

Criminal Appeal No.D-90 of 2019

Criminal Appeal No.D-02 of 2020

Ali Ahmed Brohi and 2 others

V/S

The State

Appellants: 1. Ali Ahmed Brohi.

2. Mst. Nida Bhatti

Through Mr. Faiz Muhammad Larik, Advocate.

3. Mohammad Younis

Through Mr. Muhammad Afzal Jagirani, Advocate.

State: Through Mr. Ali Anwar Kandhro,

Additional Prosecutor General, Sindh.

Date of Hearing: 11.02.2025

Date of Decision: 13.02.2025

J U D G M E N T

Omar Sial, J.- A police party of the Saddar police station in Jacobabad was on routine patrol duty on 14.10.2019 when its in charge, S.I. Ghulam Asghar Tunio, received spy information that two men and a woman carrying narcotics were coming from Balochistan in a vehicle. The police party soon saw and stopped the identified vehicle. Ali Ahmed Brohi was driving the car while Mohammad Younus and Nida Bhatti sat in the rear passenger seats. Two hundred sixty kilograms of charas were recovered from the vehicle. The record shows that each of the appellants had 20 kilograms each. The three individuals were arrested, and F.I.R. No. 203 of 2019 was registered under section 9(c) of the Control of Narcotic Substances Act, 1997, at the Saddar police station on information provided by S.I. Ghulam Asghar Tunio.

2. The arrested accused pleaded not guilty and claimed trial. The prosecution examined P.C. Israr Ahmed as its first witness. This person acted as a witness to the arrest and recovery. S.I. Ghulam Asghar Tunio (the case's complainant and investigating officer) was the second prosecution witness.

3. Appellant Ali Ahmed Brohi had also filed appeal bearing Criminal Appeal No.D-88 of 2019, however, the same stands abated vide order dated 16.05.2023 due to his death.

4. At the outset, the learned counsel for the appellants submitted that safe custody of the narcotics from the time of seizure till its deposit in the laboratory was not proved at trial. He cited several cases on this aspect. The learned Additional Prosecutor General most reluctantly agreed that safe custody, as directed by the Supreme Court, was not proved. We have heard the learned counsel for the appellants and the learned Additional Prosecutor General and have also perused the record with their assistance. Our findings and observations are as follows.

5. The record reflects that the appellants were arrested and charas recovered between 9:15 a.m. and 10:30 a.m. on 14.10.2019. In his testimony, the complainant said that he deposited the recovered charas in the maalkhanna of his police station immediately upon his return from the scene of the incident at about 11:00 a.m. The next day, i.e., on 15.10.2019, the charas were sent with P.C. Qalati Khan to the laboratory. The record reveals that the prosecution examined neither the maalkhanna in charge nor P.C. Qalati, the courier.

6. In several cases, the Supreme Court has held that if safe custody and transmission of the seized narcotics are not proved at trial, the benefit of such a lapse will go to the accused.

7. In the case of Zahir Shah v. The State (2019 SCMR 2004) it was observed:

“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 the 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 Analysis, thus, rendering it incapable of sustaining conviction.”

8. In Javed Iqbal vs The State (2023 SCMR 139) the Supreme Court held:

“So the safe custody and safe transmission of the sample parcels was not established by the prosecution and this defect on the part of the prosecution by itself is sufficient to extend benefit of doubt to the appellant. It is to be noted that in the cases of 9(c) of CNSA, it is duty of the prosecution to establish each and every step from the stage of recovery, making of sample parcels, safe custody of sample parcels and safe transmission of the sample parcels to the concerned laboratory. This chain has to be established by the prosecution and if any link is missing in such like offences the benefit must have been extended to the accused. Reliance in this behalf can be made upon 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), Ikramullah and others v. The State (2015 SCMR 1002) and Amjad Ali v. The State (2012 SCMR 577) wherein it was held that in a case containing the above mentioned defects 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. So the prosecution has failed to prove the case against the petitioner and his conviction is not sustainable in view of the above mentioned defects.”

9. In Asif Ali and another vs The State (2024 SCMR 1408) it was observed:

“In the cases under CNSA 1997 it is the duty of the prosecution to establish each and every step from the stage of recovery, making of sample parcels, safe custody of sample parcels and safe transmission of the sample parcels to the concerned laboratory. This chain has to be established by the prosecution and if any link is missing, the benefit of the same has to be extended to the accused.”

10. In Muhammad Hazir vs The State (2023 SCMR 986) it was observed:

“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.”

11. In Qaiser Khan vs The State (2021 SCMR 363) the Supreme Court held:

“The Forensic Report reflects that the alleged narcotics were received in the laboratory on 11th December, 2012 but evidence on the record is silent that where the same remained for two days i.e. from 9th December, 2012 to 11th December, 2012. Similarly evidence regarding safe transmission of alleged recovered narcotics to the laboratory for chemical analysis is also missing. The law in this regard is settled by now that if safe custody of narcotics and its transmission through safe hands is not established on the record, same cannot be used against the accused. Reliance in this regard can well be placed on the cases of Mst. Razia Sultana v. The State and another (2019 SCMR 1300) and The State through Regional Director, ANF v. Imam Bakhsh and others (2018 SCMR 2039).”

12. Given the above position of law as clarified by the Supreme Court and observing that in the present case, neither the maalkhanna in charge nor P.C. Qalati, who took the narcotics to the laboratory, were examined, and thus safe custody and transmission were not proved. Conviction, therefore, cannot be sustained. The appeals are allowed, and the appellants are acquitted of the charge. They may be released forthwith if not required in any other custody case.

JUDGE