In the High court of Sindh, Circuit Court Larkana
Cr. Appeal No.D-71 of 2023
BEFORE:
Mr. Justice Omer Sial,
Mr. Justice Khalid Hussain Shahani
Appellant: Mujahid Khan s/o Khair Wali Khan
Through Mr. Rashid Mustafa Solangi, Advocate.
State: Through Mr. Asif Hussain Chandio, Law Officer Customs and Mr. Oshaq Ali Sangi, Assistant Attorney General.
Date of hearing: 13-02-2025
Date of order: 27-02-2025
J U D G M E N T
Khalid Hussain Shahani, J. Appellant Mujahid Khan was convicted for offence u/s 9(c) of the Control of Narcotics Substance Act, 1997, in a case bearing crime No.02/2021-22 PS Custom Office, Sukkur, by the learned 1st Additional Sessions Judge (MCTC)/Special Judge CNS Jacobabad; he was sentenced to imprisonment for life and fine of Rs.800,000/- (eight lacs). He would have to remain in jail for another year, 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 September 28, 2021 at about 04:30 a.m, during snap checking at Customs Check Post Jacobabad, Inspector Agha Tariq Ahmed of Customs along with subordinates signaled a truck bearing registration No.GPA-369 to stop, but the driver accelerated it and leaving the truck near Mehar Shah Graveyard made his escape good. It was found loaded with scrap. On search, 650 packets of Chars were found concealed in driver’s cabin. Consequent upon, FIR was lodged.
03. After usual investigation, report was submitted against the appellant alleged to be owner of truck by showing him absconding. He on having knowledge, voluntarily surrendered and joined the trial.
04. Appellant pleaded “not guilty” and claimed trial. Inspector Tariq Ahmed (complainant), Sepoy Wazeer Ali (mashir of arrest and seizer) and Inspector Ayaz Hussain (investigating officer) were examined by the prosecution. In his statement u/s 342 Cr.P.C, the appellant denied all wrong doings by asserting that he was registered owner of Hino Truck with same Engine and Chassis number, which he produced before the investigating officer along with relevant documents.
05. We have heard learned counsel for the appellant and learned Additional Prosecutor General. With their assistance reviewed the evidence brought on the record.
06. 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. He added that appellant was not arrested from the spot, but on knowledge when his CNIC was blocked, voluntarily surrendered before the court and investigating officer with relevant documents and produced Hino truck with same registration number. 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.
07. Glance on the record reflects that vehicle was recovered from Mehar Shah Graveyard, loaded with scrap. Neither any person was found at the spot, nor was effort made to search for the person/driver, who made his escape good. The truck was brought at Customs Check Post Jacobabad, de-loaded, and from its driver cabin 650 K.Gs chars recovered.
08. The complainant Inspector Tariq Ahmed deposed that immediately after reaching at Sukkur, the recovered case property including vehicle was handed over to Inspector Mumtaz Ali Mahar, the In-charge warehouse for stacking. However, neither such Inspector has been examined, nor scrap produced as case property, nor form 22.70 of register XIX under Police Rules 1934 produced to suggest its safe custody and subsequent safe transmission, as the property was received on the following day by the Chemical Laboratory Sukkur on 29.09.2021 for analysis.
09. Admittedly, the name of appellant was introduced on the pretext that, the vehicle was registered in his name, and was shown absconding in report u/s 173 Cr.P.C. Record reflects that on knowledge, the appellant voluntarily surrendered not only before the court, but also the investigating officer, produced the truck with same registration, chassis and engine numbers, coupled with relevant documents. In response to letter issued by Assistant Collector (Preventive) Custom Sukkur, the Examiner of the Vehicle Section (FSL), Forensic Division Larkana vide letter No.FSL/OR/VH/235/2022, dated 28-12-2022, opined that no other number has been deciphered under the present Chassis serial number sent for verification. Such fact suggests that the Chassis and Engine number were not tempered with. The only piece of evidence against the appellant is/was a letter issued by Assistant Manager National Sales Hinopak Motors Limited, stating that as per their record, no vehicle with same Chassis number was manufactured by the company. Admittedly, the Assistant General Manager of Hino Pak has not been examined to that extent. 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 and Assistant Manager of Hino Pak, constitutes a serious legal lapse that directly impacts the credibility of prosecution case. In numerous cases, 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.
10. In 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”.
11. In 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”.
12. In 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”.
13. In 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”.
14. In 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)”.
15. In the light of dictum laid down by the august Supreme Court and observing that in the present case, neither warehouse In-charge, nor Assistant Manager of Hino Pak examined, nor scrap recovered from truck, nor form 22.70 of Register No.19 of Police Rules, 1934 produced, and thus, safe custody and safe transmission were not proved. Conviction, therefore, cannot be sustained. As a result impugned judgment is set aside, appeal is allowed, and the appellant is acquitted of the charge. He may be released forthwith, if not required in other custody case.
JUDGE
JUDGE
Asghar Altaf/P.A