IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Before:

Mr. Justice Omar Sial

Mr. Justice Khalid Hussain Shahani

Criminal Jail Appeal No.D-39 of 2020

Imam Bux

V/S

The State

Appellant: Imam Bux son of Muhammad Hayat Brohi

Through Mr. Mr. Habibullah G. Ghouri, Advocate

State: Through Mr. Ali Anwar Kandhro, Additional

Prosecutor General, Sindh.

Date of Hearing: 18.02.2025

Date of Decision: 27.02.2025

J U D G M E N T

Omar Sial, J.- A police party led by S.I. Ghulam Asghar Tunio was on routine patrol duty on 05.02.2020 when it received spy information that a person carrying two black bags over his shoulders was standing outside Police Picket No. 9. The police party reached the identified place and saw the appellant, Imam Buksh. He was detained and searched. From his bags, the following was recovered: 50 kilograms of opium and 2 kilograms of heroin. The narcotics were seized, and he was arrested. FIR No. 34/2020 was registered under section 9(c) of the Control of Narcotic Substances Act, 1997, at the Saddar Police Station in Jacobabad.

2. Imam Buksh pleaded not guilty and claimed trial. The prosecution examined S.I Ghulam Asghar Tunio (the complainant and the investigating officer) as its first witness at trial. The second prosecution witness was P.C. Israr Ahmed Abro. He was the policeman who witnessed the arrest and recovery. P.C. Saeed Ahmed Mangrio was the third prosecution witness. He was the policeman who took the seized narcotics from the police station to the chemical laboratory for analysis.

3. In his section 342 Cr.P.C statement, the appellant professed innocence and said that this false case was registered on the directions of the S.S.P. Jacobabad, with whom he had a dispute over the sale of an excavator. The 1st Additional Sessions Judge Jacobabad on 03.11.2020 found the appellant guilty and sentenced him to suffer rigorous imprisonment for life and pay a fine of Rs. 35,000.

4. We have heard the learned counsel for the appellant and the learned Additional Prosecutor General. Our observations and findings are as follows.

5. The primary argument raised by the learned counsel for the appellant was that the prosecution failed to establish and prove safe custody and transmission of the narcotics. Hence, the conviction could not be sustained. He cited several judgments of the Supreme Court in support of his argument.

6. The record reflects that Imam Buksh was arrested on 05.02.2020, and the narcotics seized from him were deposited with the maalkhana in charge by S.I. Ghulam Asghar Tunio on the same day. On 07.02.2020, the narcotics were taken out of the maalkhana and given to P.C. Saeed Ahmed Mangrio for onward deposit at the chemical laboratory. While the prosecution examined Saeed Ahmed Mangrio i.e., the courier, the maalkhanain charge was not examined at trial. Therefore, the chain of safe custody and transmission from the time of seizure until the time of deposit in the chemical laboratory was broken. In a series of cases, the Supreme Court has held that conviction can not be sustained if the chain is broken.

7. On the contrary, the learned Additional Prosecutor General conceded that the in charge of the maalkhana where the narcotics were deposited was not examined at trial. However, his stance was that the non-appearance at the trial of the maalkhana in charge would not adversely impact the prosecution case. He relied on a judgment reported as Zain Ali vs The State (2023 SCMR 1669). The learned prosecutor is correct that the Supreme Court took a different view in this case. With much respect and humility, however, we are swayed towards the series of judgments passed by the Supreme Court before and after the judgment in the Zain Ali case. Reference may be made to Sarfaraz Ahmed vs The State (2024 SCMR 1571), Asif Ali vs. The State (2024 SCMR 1408), Said Wazir vs. The State (2023 SCMR 1144), Javed Iqbal vs. The State (2023 SCMR 139). We have not mentioned judgments passed before the Zain Ali case for brevity. All these judgments are referred to in the decisions mentioned above.

8. In the present case, the secure transmission was demonstrated, but safe custody was not proved as the maalkhana in charge did not come in as a witness. In the Sarfaraz Ahmed case (supra), it has been held that:

9. In order to prove the safe custody of the parcels of the contraband, Moharrar (Abdul Qayyum) of PS Kalat has not been produced at the trial by the prosecution. In the cases of "Said Wazir v. The State", "Muhammad Shoaib v. The State" and "Ishaq v. The State" it has been held that due to non-appearance of the Moharrar at the trial, the safe custody of the parcel of the contraband as well as the sample parcel has not been established by the prosecution. In the case of "Zahir Shah v. The State" it has been laid as follows by this Court:

"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 Analysis, thus, rendering it incapable of sustaining conviction."

9. We are inclined to agree with the learned counsel's argument that it does seem rather odd and unnatural that a man would, without any rhyme or reason, stand outside a police picket with 52 kilograms of narcotics on his shoulders. Apart from the fact that that is substantial weight to aimlessly carry and stand, the seizure, arrests, investigations, and prosecution in this case and cases of similar nature where a large quantity of narcotics has been recovered are continuously leaving critical legal loopholes in the case. We find it difficult to understand why, when the law has been clarified and repeatedly reiterated by the Supreme Court and High Courts, safe custody and transmission of narcotics have not been ensured in prosecutions. It has been clear for some years that a conviction will not be sustained if an unbroken chain of safe custody and transmission of the narcotics is not proved at trial. Every investigator and law officer should surely know this by now. Still, repeatedly, the prosecution of law enforcement agencies, except the Anti-Narcotics Force, are not ensuring that proper evidence is produced at trials. It is a matter of great concern because, in many cases, unscrupulous people charged with substantial possession have used the lapse to their advantage.

10. The Inspector General of Police will be in a better position to give a more accurate figure, but from the cases coming to Court, it appears that huge seizures are being made in this region, but follow-up in these cases for effective investigation and prosecution is lacking. The Sindh government is in the best position to decide. In addition to the effective measures it has already taken, it may be helpful if it also considers liaison with the specialized anti-narcotic agency, the ANF, to counter this inflow of narcotics. This is because federal anti-narcotic agencies (Excise and Customs) are also making such seizures. The expertise of the ANF will undoubtedly benefit and train investigators and prosecutors in anti-narcotic enforcement.

11. Given the above, and as the maalkhana in charge was not examined at the trial, safe custody of the narcotics was not proved. The conviction can, therefore, not be sustained. There is little point in discussing other aspects of the case. The appeal is allowed, and the impugned judgment is set aside. The appellant may be released if not required in any other custody case.

12. Let a copy of this order be sent to the Federal Secretary, Interior, Chief Secretary, Sindh, and the Prosecutor General Sindh with the request to take note of the observations made in paragraph 9 of this opinion.

Judge

Manzoor