IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

 

Before:

Mr. Justice Omar Sial

Mr. Justice Khalid Hussain Shahani

 

Criminal Appeal No.D-14 of 2024

 

Muhammad Pathan Jamali and another

V/S

The State

 

Appellants:                                        1.         Muhammad Pathan son of Ghulam

Haidar Jamali

 

2.         Meer Ahmed son of Rehan Jamali

 

Through Mr. Habibullah G. Ghouri, Advocate.

 

 

State:                                                  Through Mr. Aitbar Ali Bullo, Deputy

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.-  Muhammad Pathan was driving a truck on 28.10.2021 with Meer Ahmed, the bus cleaner, beside him. A police party led by Inspector Abdul Hameed Bughio of the Excise Police stopped and searched the truck. Thirty kilograms of charas were recovered from a secret cavity in the truck. Both men were arrested, the charas were seized, and F.I.R. No. 2 of 2021 under section 9(c) of the CNS Act 1997 was registered.

2.         Both men pleaded not guilty and claimed trial. At trial, the prosecution examined the following witnesses. E.C. Muhammad Tariq, the official who took the charas from the maalkhaana to the Chemical Laboratory, was the first witness. Inspector Abdul Hameed, the complainant and the investigating officer, was the second witness. E.C. Kamran Ali witnessed the arrest and recovery and was the third witness. In their respective section 342 Cr.P.C. statements, both the accused professed innocence. The learned 1st Additional Sessions Judge, Larkana, on 05.03.2024, convicted the appellants and sentenced them to life in prison and a fine of Rs. 100,000.

3.         We have heard the learned counsel for the appellants and the learned Deputy Prosecutor General. Their respective arguments are not reproduced for brevity but are reflected in our observations and findings below.

4.         The primary argument made by the learned counsel was that safe custody and transmission of the seized charas were not proved in the trial as the maalkhana in charge was not examined at trial. He cited several judgments to support his argument that conviction could not be sustained due to the prosecution lapse. The record reflects that the arrest and recovery occurred at 4:00 p.m. on 28.10.2021. The case property was deposited in the maalkhana soon after the police party brought the accused to the police station, and the F.I.R. was registered. The next day, the property was sent for analysis through E.C. Mohammad Tariq. While the courier, E.C. Mohammad Tariq, was examined at trial, the maalkhana in charge was not called a witness by the prosecution. In a series of cases, the Supreme Court and the Division Benches of this Court have held that a conviction would not hold if safe custody and transmission of the seized narcotics is not proved at trial. In the present case, secure transmission was demonstrated, but safe custody was not proved as the maalkhana in charge did not come in as a witness. In a recent case reported as Sarfaraz Ahmed vs The State (2024 SCMR 1571), 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."

5.         The learned Additional Prosecutor General submitted that the non-appearance at the trial of the maalkhana in charge would not 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 have swayed towards the series of judgments passed by the Supreme Court before and after the judgment in the Zain Ali case. Apart from the Sarfaraz Ahmed case (supra), reference may also be made to Asif Ali vs. The State (2024 SCMR 1408), Said Wazir vs. The State (2023 SCMR 1144), Javed Iqbal vs. The State (2023 SCMR 139). The Supreme Court in the Sarfaraz case has also referred to previous judgments before the Zain Ali one.

6.         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 appellants may be released if not required in any other custody case.

 

Judge

 

Judge

 

Manzoor