IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Appeal No.D-77 of 2019

BEFORE:

Mr. Justice Omer Sial,

Mr. Justice Khalid Hussain Shahani.

Appellant: Ferozdin s/o Badaruddin Shaikh

Through Messer Asif Ali Abdul Razzak Soomro and Akbar Ali Dahar, Advocates.

State: Through Mr. Ali Anwar Kandhro, Additional Prosecutor General, Sindh.

Date of hearing: 13-03-2025

Date of Judgment: 18-03-2025

J U D G M E N T

Khalid Hussain Shahani, J.- The appellant Ferozdin Shaikh was convicted for offence u/s 9(c) of the Control of Narcotic Substances Act, 1997, in a case bearing Crime No.134/2019, PS Saddar Jacobabad, by the learned 1st Additional Sessions Judge (MCTC), Jacobabad, and sentenced to rigorous imprisonment for life and imposed a fine of Rs.100,000/- (one lac). In default of payment of the fine, the appellant was directed to undergo an additional one year of imprisonment, with benefit of Section 382-B Cr.P.C.

02. The prosecution’s version of events alleges that on 30.08.2019, at about 1000 hours, police party headed by ASI Azizullah Katto of PS Saddar, Jacobabad, on spy tip, stopped a silver color Corolla car bearing registration No.AXS-616, at Umrani Laro, Quetta road, situated in Deh Umrani, District Jacobabad, apprehended appellant Ferozdin and allegedly recovered 115 Kilograms of Chars from back seat of the car; however, co-accused Riaz Ahmed Bozdar made his escape good. Pursuant to this recovery, the appellant was arrested, and an FIR lodged.

03. The appellant, pleaded not guilty. The prosecution, in an attempt to establish its case, examined ASI Azizullah Katto (complainant), PC Altaf Hussain (mashir of arrest and seizure) and SIP Shabir Ahmed Sahto (investigating officer). In his statement recorded under Section 342 Cr.P.C, the appellant categorically denied all allegations and claimed his innocence.

04. At the outset, the learned counsel for the appellants contended that the prosecution failed to establish the safe custody and transmission of the contraband from the time of seizure until its submission to the chemical laboratory. Several case precedents were cited in support of his argument.

05. The learned Additional Prosecutor General conceded, albeit reluctantly, that the prosecution had not satisfactorily proved the safe custody and transmission of the seized contraband in accordance with legal standards set forth by the superior judiciary.

06. A review of the record indicates that the appellant was arrested, and 115 KGs of Chars was recovered from back seat of the car on August 30, 2019. Out of this, 57½ KGs was sealed for chemical analysis. However, beyond the requisite period, with an unexplained delay of 04 days, the sample parcels were dispatched to the chemical laboratory on September 03, 2019, through WPC Qalati. Complainant ASI Azizullah, in his testimony, claimed that soon after the registration of the FIR, the case property was handed over to I.O/SIP Shabir Ahmed Sahto. However, the I.O. testified that he had deposited the Chars in Malkhana of PS Saddar through WHC. Neither, WHC of PS Saddar being Malkhana Incharge named nor examined, examined to corroborate, in fact the property was kept in safe custody, nor Form 22.70 of Register XIX required under the Police Rules, 1934, produced to establish the safe custody and subsequent transmission of the contraband for chemical analysis.

07. Furthermore, the complainant Azizullah and Mashir PC Altaf Hussain with one voice in their testimonies deposed, the memo of arrest and seizure was prepared by PC Qalati Khan. He has not been examined being author of such an important document being backbone of the case. Besides, contradictory statements have been noted in the testimony of the prosecution witnesses, as the complainant ASI Azizullah stated that 04 parcels were sealed at the spot; however, mashir PC Altaf Hussain deposed, they had prepared 08 parcels.

08. Under Article 10-A of the Constitution of Pakistan, the right to a fair trial is an inviolable fundamental right of every accused. This constitutional safeguard mandates that the prosecution ensure the production and examination of all material witnesses. The failure to examine crucial witnesses, particularly the In-charge Malkhana, the carrier of the contraband to the Chemical Lab and author of memo of arrest and seizure, constitutes a significant legal defect that directly undermines the credibility of the prosecution’s case.

09. The august Supreme Court has consistently held that if the safe custody and transmission of seized narcotics are not proven at trial, the benefit of doubt must be extended to the accused.

10. 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”.

11. 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”.

12. 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”.

13. 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”.

14. 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 9^th December, 2012 to 11^th 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 case at hand, neither the Malkhana In-charge of PS Saddar, Jacobabad, nor carrier of contraband to Chemical Lab, nor author of memo of arrest and seizure examined, nor Form 22.70 of Register No.XIX of the Police Rules, 1934, produced. Consequently, the prosecution has failed to establish the crucial elements of safe custody and transmission. As a result, the conviction cannot be sustained.

16. In view of anomalies highlighted above, the appeal is allowed and impugned judgment set aside. The appellant is acquitted of the charge and shall be released forthwith unless required in another case.

JUDGE

S.Ashfaq