In the High court of Sindh, Circuit Court Larkana
Cr. Appeal No.D-63 of 2024
BEFORE:
Mr. Justice Omer Sial,
Mr. Justice Khalid Hussain Shahani
Appellant: Fatteh Muhammad s/o Muhammad Ibraheem,
Through Mr. Safdar Ali G. Bhutto, Advocate.
State: Through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
Date of hearing: 20-02-2025
Date of order: 27-02-2025
J U D G M E N T
Khalid Hussain Shahani, J. Fatteh Muhammad Bahalkani was convicted for offence u/s 9(c) of the Control of Narcotics Substance Act, 1997 in case bearing crime No.28/2024 PS Guddu, by the learned 1st Additional Sessions Judge (MCTC)/Special Judge CNS Kandhkot; he was sentenced to R.I for 09 years and fine of Rs.80,000/- (eighty thousands). He would have to remain in jail for two years more, if he not pays the fine, with benefit of section 382-B Cr.P.C.
02. The facts giving rise to the prosecution case are, on 29-04-2024 at about 1500 hours, police party headed by ASI Illahi Bux Mirani of PS Guddu apprehended the appellant near Bhatti Muhalla and affected recovery of 1040 gram Chars. He was arrested, and FIR lodged.
03. Bahalkani pleaded “not guilty” and claimed trial. ASI Illahi Bux (the complainant), HC Noor Hassan (Mashir of arrest and seizer), PC Barkat Ali (carrier of Narcotics samples to Chemical Lab, Rohri), SIP Nawab Khan (Investigating officer), and WPC Abdul Majeed (alleged to be Malkhana In-charge) were examined by the prosecution. In his statement u/s 342 Cr.P.C, the appellant denied all wrong doings and claimed, he was taken on 25.04.2024 from Massan Moar Kandhkot by Raja Bhangwar, the Incharge police Madadgar-15 of Eagle Police, illegally detained, for which a Habeas Corpus Application was filed by his brother Sher Khan in the Court of Sessions Judge/Justice of Peace Kandhkot, and subsequently implicated in the case by PS Guddu police.
04. We have heard learned counsel for the appellant and learned Additional Prosecutor General. With their assistance reviewed the evidence brought on the record.
05. At the very outset, learned counsel for the appellant submitted, safe custody of the contraband from time of seizer till its deposit to chemical laboratory was not proved at trial. Several case laws were cited in this respect. Learned Additional Prosecutor General reluctantly agreed that safe custody and transmission as prescribed by the Supreme Court, was not proved.
06. Glance on the record reflects, the appellant was arrested on 29.04.2024 at about 1500 hours and Chars weighing 1040 grams recovered from him near Bhatti Muhalla Kashmore. ASI Illahi Bux Mirani stated, he handed over custody of accused and case property to I.O/SIP Nawab Khoso soon after his arrival at PS at 1650 hours. The case property was deposited in Malkhana and subsequently dispatched to Chemical Laboratory through PC Barkat Ali on 03-05-2024 with delay of 04 days. Record reflects, the property was sent with memorandum No.59 dated 02.05.2024 and received by Chemical Lab at Rohri on 03-05-2024 (Exhibit 05/F). No explanation furnished, where the property remained for one day after dispatch from PS to Chemical Laboratory. Though PC Abdul Majeed examined, said to be the Incharge Malkhana, but he in cross examination admitted (It is correct that I am not In-charge of Malkhana of PS in writing. Voluntarily says, verbal charge of Malkhana is with me. It is correct that in writing, the charge of Malkhana is in custody of WHC. It is correct that neither I nor I.O put signature on Register No.XIX). Means thereby, the In-charge of Malkhana not examined and an unauthorized person has been examined to fill the lacuna, which is not appreciated.
07. In the light of Article 10-A of the Constitution of Pakistan, the right to a fair trial is an inviolable fundamental right of every accused person. This constitutional safeguard mandates that the prosecution ensure the production and examination of all the material witnesses. Failure to examine crucial witnesses particularly the In-charge Malkhana, constitutes a serious legal lapse that directly impacts the credibility of prosecution case.
08. In numerous Judgments, the august Supreme Court has held that if safe custody and transmission of seized Narcotics is not proved at trial, the benefit of such a lapse will go to the accused.
09. 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”.
10. 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”.
11. In the case of Asif Ali and 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”.
12. 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 along with 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 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 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”.
13. 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)”.
14. In the light of dictum laid down by the august Supreme Court and observing that in the present case, Malkhana In-charge not examined, and thus safe custody and safe transmission were not proved. Hence, the defense taken by appellant not lost of sight that on 25-04-2024, he was taken from Massan Curve Kandhkot by Raja Bhangwar, the In-charge Eagle Police, illegally detained, for which Habeas Corpus Application filed by his brother and on report called by the Sessions Judge Kashmore @ Kandhkot, it was informed by the police that he was not with them and subsequently implicated in the case by PS Guddu police. Conviction, therefore, cannot be sustained. As a result, impugned judgment is set aside, appeal allowed, and the appellant is acquitted of the charge. He is released forthwith, if not required in other custody case.
JUDGE
JUDGE
Asghar Altaf/P.A