In the High court of Sindh, Circuit Court Larkana
Cr. Jail Appeal No.D-32 of 2022
BEFORE:
Mr. Justice Omer Sial,
Mr. Justice Khalid Hussain Shahani
Appellant: Muhammad Tahir s/o Muhammad Paryal Mahar,
Through Mr Abdul Rehman Bhutto, Advocates.
State: Through Mr. Ali Anwar Kandhro, Additional Prosecutor General for the State.
Date of hearing: 20-02-2025
Date of order: 27-02-2025
J U D G M E N T
Khalid Hussain Shahani, J. Appellant Muhammad Tahir Mahar was convicted for offence u/s 9(c) of the Control of Narcotics Substance Act, 1997 in a case bearing crime No.03/2021 PS Excise Jacobabad, by the learned 1st Additional Sessions Judge (MCTC)/Special Judge CNS Jacobabad; He was sentenced to Rigorous Imprisonment for life and fine of Rs.500,000/- (five lacs). He would have to remain in jail for a year more, if fails to pay the fine, with benefit of section 382-B Cr.P.C.
02. The facts that led the registration of the case are, on 11-03-2021 at about 11:00 a.m, whilst snap checking, AETO Zia-ul-Islam found accused Tahir transporting 140 K.Gs Chars, concealed in secret cavities of fuel tank of a Bedford truck.
03. Accused Muhammad Tahir pleaded “not guilty” and claimed trial.
04. To substantiate its case, the prosecution examined AETO Zai-ul-Islam (the complainant/I.O), E.C Mir Jeeand (mashir of arrest and seizer).
05. At the outset, learned counsel for the appellant submitted that safe custody and safe transmission from time of seizer till its deposit at the chemical laboratory was not proved at trial. It was next contended that neither evidence has been brought on the record, with whom case property remain from 11-03-2021 to 12-03-2021, nor name of In-charge Malkhana introduced, nor examined to prove the property remained in safe custody. The Prosecutor General reluctantly agreed that safe custody, as directed by the Supreme Court, was not proved.
06. The complainant Zia-ul-Islam testified at trial deposed, after arrest and seizer, he brought the case property duly sealed from place of occurrence to Excise PS Jacobabad, wherefrom the sample was sent to Chemical Laboratory Sukkur at Rohri on next day viz; 12-03-2021. Surprisingly, neither the complainant has uttered a single word, with whom the recovered Chars was lying at PS in safe custody, nor identity of In-charge Malkhana furnished, nor examined, nor form 22.70 of Register No.XIX, required under Police Rules, 1934 produced, to suggest its safe custody and subsequent transmission for chemical analysis. The complainant further testified the memo of arrest and seizer was prepared by him. The mashir E.C Jeeand contradicting such fact deposed that it was prepared by E.C Asif Majeed. Means thereby, the author of such an important memo, on which all the case hinges upon, has not been examined. In the light of Article 10-A of Constitution of Pakistan, the right to a fair trial is an inviolable fundamental right of every accused person. This constitutional safeguard mandates that prosecution ensures the production and examination of all material witnesses to substantiate its case beyond reasonable doubt. The failure to examine a crucial witness, particularly, the author of the recovery memo, constitutes a serious legal lapse that directly impacts the credibility of prosecution case.
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 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”.
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 identity of In-charge of Malkhana introduced, nor examined, nor the author of arrest and seizer memo examined, 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 appeal is allowed, and the appellant is acquitted of the charge. He be released forthwith, if not required in other custody case.
JUDGE
JUDGE
Asghar Altaf/P.A