In the High court of Sindh, Circuit Court Larkana
BEFORE:
Mr. Justice Omer Sial,
Mr. Justice Khalid Hussain Shahani
Cr. Appeal No.D-27 of 2019
Appellant: Farooque Khan s/o Deenar Khan Rind,
Through Mr Asif Ali Abdul Razak Soomro, Advocates.
Cr. Appeal No.D-31 of 2019
Cr. Appeal No.D-33 of 2019
Appellants: Tallah Muhammad s/o Ali Muhammad Pathan and Ali Bakhsh s/o Muhammad Pannah Soomro
Through Mr. Imdad Ali Malik, Advocate.
State: Through Mr. Ali Anwar Kandhro, Additional Prosecutor General, Sindh.
Date of hearing: 20-02-2025
Date of order: 27-02-2025
J U D G M E N T
Khalid Hussain Shahani, J. Appellants Farooque Khan Rind, Tallah Muhammad Pathan and Ali Bakhsh Soomro were convicted for offence u/s 9(c) of the Control of Narcotics Substance Act, 1997 in a case bearing crime No.83/2016 PS Kareem Buksh, by the learned 1st Additional Sessions Judge (MCTC)/Special Judge CNS Jacobabad; they were sentenced to imprisonment for life and fine of Rs.100,000/- (one lacs). They would have to remain in jail for another year, if they not pay the fine, with benefit of section 382-B Cr.P.C.
02. The facts that led the registration of the case are, on 18-11-2016 at about 12:30 p.m (noon) on a spy tip, SHO/Inspector Muhammad Pannah Brohi of PS Kareem Buksh intercepted appellants near Hairo Bridge, Taluka Thul, transporting 200 K.Gs Chars, in a Land Cruiser.
03. Appellants pleaded “not guilty” and claimed trial. To substantiate its case, the prosecution examined SHO/Inspector Muhammad Pannah (complainant/I.O), ASI Rato Khan (mashir) and PC Jan Muhammad (the carrier of Chars to Chemical Laboratory, Rohiri).
04. At the outset, learned counsel for the appellants submitted that safe custody and safe transmission from time of seizer till its deposit at the chemical laboratory was not proved at trial. The property was sent for chemical analysis with four days delay, the In-charge Malkhana WHC Haider Ali not examined and no efforts whatsoever made during the investigation about the owner of the vehicle. The Prosecutor General reluctantly agreed that safe custody as directed by the Supreme Court was not proved.
05. The complainant Inspector Muhammad Pannah testified at trial deposed, after arrest and seizer, he brought the case property duly sealed in eight bags at PS, which was deposited in Malkhana. Record reflects that the case property was deposited at chemical laboratory, Rohiri with delay of four days i.e on 22-11-2016. Neither WHC Haider Ali the In-charge Malkhana examined, nor form 22.70 of Register No.XIX, required under Police Rules, 1934 produced, to suggest its safe custody and safe transmission for chemical analysis.
06. Glance on the record also reflects that no efforts were taken by the complainant/I.O to establish, as to who was owner of the vehicle/Land Cruiser, as he admitted (It is correct to suggest that I had not issued any letter regarding verification of registration number and owner of the Land Cruiser).
07. In numerous judgments, the august Supreme Court considering the facts referred hereinabove held, if safe custody and transmission of seized narcotics are not proved at trial, its benefit is accorded to the accused.
08. 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 brake 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”.
09. In the case of Javed Iqbal V. The State (2023 SCMR 139), it was held:
“So the safe custody and safe transmission of the sample parcel was not established by the prosecution and this defect on the part of prosecution by itself is sufficient to extent benefit of doubt to the Appellant. It is to be noted that in the cases of 9(c) of NSA, it is the duty of prosecution to establish each and every step from the stage of recovery, making sample parcels, safe custody of sample parcel and safe transmission of sample parcel 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 Buksh and Others (2018 SCMR 2039), Ikramullah and other 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 the 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”.
10. In the case of Asif Ali & another V. The State (2024 SCMR 1408), it was observed:
“In the cases under CNSA, 1997 it was 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 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”.
11. In the case of Muhammad Hazir V. 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 alongwith the impugned judgment with their assistance, it has been observed by us that neither the safe custody nor the safe transmission of sealed sample parcels to the concerned Forensic Science Laboratory was established by the prosecution because neither the Muharar nor the constable Shah Said (FC-2391) who deposited the sample parcel 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 laboroty on 13-02-2015 and prosecution is silent as to where remained these sample parcels during this period, meaning thereby that the element of tempering with is quite apparent in the 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 Baksh and others (2018 SCMR 2039), Ikramullah 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 defects on the part of prosecution it cannot be held with any degree of certainty that prosecution has succeeded in establishing its case against accused person beyond any reasonable doubt”.
12. In the case of Qaiser Khan V. The State (2021 SCMR 363), the Supreme Court held:
“The Forensic Report reflects that the alleged narcotics were received in the laboratory on 11 December, 2012 but evidence on 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 State through Regional Director, ANF V. Imam Buksh and others (2018 SCMR 2039)”.
13. In the light of dictum laid down by the Honorable Supreme Court and observing that in the present case, neither In-charge Malkhana examined, nor the property was sent for chemical analysis within stipulated period, nor form 22.70 of Register No.XIX of Police Rules, 1934 produced, and thus, safe custody and safe transmission were not proved. Conviction, therefore, cannot be sustained, impugned judgment is set aside. Consequent upon, the appeals are allowed, and the appellants are acquitted of the charge. They be released forthwith, if not required in other custody case.
JUDGE
JUDGE
Asghar Altaf/P.A