IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Cr. Appeal No. D-68 of 2019

Appellant		Muhammad Yousif Tunio
		Through Miss Reshma Zangejo

The State		Through Mr. Aitbar Ali Bullo, D.P.G for the State

Date of hearing		20-03-2025
Date of order		20-03-2025

J U D G M E N T

OMAR SIAL, J.- On 21.11.2018, Inspector Ashique Ali of the Excise police in Shikarpur received information regarding availability of narcotics in a vehicle travelling from Jacobabad to Shikarpur. A police party led by him set up a check post and soon saw the identified vehicle. It was stopped and searched and 40 kilograms of charas was recovered from secret cavities. Mohammad Yousuf Tunio was driving the vehicle when the recovery was made and thus was arrested. F.I.R. No. 05 of 2018 was registered under sections 6 and 9(c) of the Control of Narcotic Substances Act, 1997 at P.S. Excise Town, District Shikarpur.

2. After a full dressed trial Tunio was convicted and sentenced to life imprisonment on 04.10.2019 by the learned 1^st Additional Sessions Judge, Shikarpur.

3. We have heard the learned counsel for the appellant and the learned Deputy Prosecutor General. With their assistance we have also re-appraised the evidence.

4. Without delving deep into the evidence, we find that the safe custody and transmission of the seized narcotics from seizure till its deposit in the chemical laboratory was not proved at trial by the prosecution. Inspector Ashique Ali was the complainant and the investigating officer. He testified that after the recovery was made, he made two separate bags of the recovered charas, each bag containing 20 kilograms. He told the Court that the recovered narcotics were sent by him for chemical analysis on 22.11.2018 i.e. a day after the seizure with E.C. Abdullah. When asked at trial where he had kept the case property, the witness said that he had kept it in a cupboard in the police station and that he had made no entry in the police diary to show that the property had been deposited. It was not explained where and how and with whom was the case property in this one day. The maalkhana in charge was not identified or examined. Register 19 was not produced at trial. Similarly E.C. Abdullah who took the narcotics to the chemical laboratory from the police station was also not examined.

5. The F.I.R., the memo of recovery nor the chemical report reflects that each packet of the charas recovered had on it in bold letters written “Kenyan-Kenyan 250 g”. The witnesses acknowledged that the charas desealed and shown to him in court had the afore-mentioned inscription in it. Tampering with the property cannot be excluded.

6. The learned Deputy Prosecutor General very correctly but reluctantly conceded that the observations made above are correct.

7. Given the above and in line with a series of judgments of the Supreme Court and this Court that if safe custody and safe transmission is not proved at trial, conviction cannot be sustained, the appeal is allowed and the impugned judgment set aside. The appellant may be released in not required in any other custody case.

Judge

Abdul Salam/P.A