IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No.D-44 of 2024
Shafi Mohammed Sarki Versus The State
1. For hearing of main appeal
Before:
Mr. Justice Muhammad Saleem Jessar
Mr. Justice Nisar Ahmed Bhanbhro
Appellant: Shafi Muhammad Sarki
Through M/s Abdul Rehman A. Bhutto, Zubair Ahmed Abro, Advocates.
The State: Through Mr. Ali Anwar Kandhro, Additional Prosecutor General, Sindh.
Date of hearing: 06-05-2025
Date of Judgment: 20 -05-2025
J U D G M E N T
Nisar Ahmed Bhanbhro J.-The Appellant/ Convict Shafi Mohammed has assailed the judgment dated 03-07-2024 passed by the Court of Learned Sessions/Special Judge (CNS) Jacobabad(Trial Court), in special case No.116/2023 “Re The State Versus Shafi Mohammed” for an offence punishable under section 9(i)(3)(c) CNS Act, 1997 result of FIR No.131/2023 of police station A-section, Thul. The Appellant after trial was found guilty of the charge, he was convicted and sentenced to suffer Rigorous Imprisonment for 09 years and also imposed fine of Rs.80,000/- in case of default in payment of fine to further suffer Simple Imprisonment for 02 months more, with a benefit of section 382-B Cr.P.C.
2. Brief facts germane to the prosecution story as unfolded in FIR are that on 24.09.2023 ASI Sanaullah Noonari of PS A-section Thul, during patrolling with his sub-ordinate staff on receiving spy information reached at Massan Mohalla near Arabi graveyard at about 1845 hours, where he saw and apprehended accused Shafi Muhammad Sarki and from his possession recovered a black color plastic shopper which was found containing 2000 grams Charas in shape of 04 slabs so also cash Rs.200/- from right side pocket of his shirt in presence of police mashirs. Such mashirnama of arrest and recovery was prepared, accused along with recovered substance was brought at Police Station where FIR was recorded by ASI Sanaullah.
3. After usual investigation and completing legal formalities, report under section 173 Cr.P.C. was submitted before Trial Court for disposal of case in accordance with law. In compliance to section 265-C CrPC, Trial Court supplied police papers to the Appellant, he was indicted for the charge of offence which he pleaded not guilty and claimed Trial.
4. To bring guilt of the accused home, prosecution examined P.W-1 Complainant/ASI Sanaullah Noonari, P.W-2 ASI Abdul Ghani Mahar. P.W-3 W/ASI Ghulam Murtaza Sanjrani. PW-4 I.O/SIP Farhan Ali and PW-5 HC Muhammad Sadiq. Thereafter, side of prosecution evidence was closed by Learned Prosecutor for State. The statement of accused under section 342 Cr.P.C was recorded, wherein he denied the charge, professed innocence and prayed for acquittal, he did not opt to examine any witness in defense and his own statement on oath.
5. After hearing the Learned Counsel for the Prosecution and Defense, Trial Court convicted and sentenced the Appellant as aforementioned, hence this appeal.
6. Mr Abdul Rehman Bhutto Learned Counsel for the Appellant argued that the Appellant was arrested by the police on 23-09-2023, later the contraband material was foisted upon him at the behest of one Police Officer who was inimical towards appellant. The sample was sent to the laboratory with a delay of 02 days; hence, the safe custody and transmission of the same, the prosecution itself has made questionable. He further argued that entry in Register No.19 was also doubtful. He next submitted that though allegedly 2000 grams contraband was secured but only four pieces weighing 1000 grams were sent to the laboratory for chemical analysis, no proper weight of each piece has been mentioned in the chemical report. He next submits that as per the evidence of I.O/complainant, the FIR as well as memo of wardat were written down by WHC Faiz Muhammad and said WHC was not examined under section161 Cr.P.C nor was produced before the court for evidence. He contended that in such a situation the presumption could be drawn that all the formalities were completed at the police station and not on the place of incident, as claimed. He also pointed out that there is contradiction between the statements of PWs on the point of retaining investigation bag, as one said it was of leather made and other deposed it was iron made. He, therefore, submits that prosecution case is doubtful, which as per settled law always goes to favor the accused; hence, submits that by granting this appeal the impugned judgment may be set aside and the Appellant may be acquitted of the charge.
7. Per contra, Learned Additional Prosecutor General appearing for the state opposes the appeal on the ground that all the PWs have remained consistent on each point and minor discrepancies which obviously occurred due to passage of time cannot be considered and may not vitiate the evidentiary value of the prosecution case. As far as delay in sending parcel to the laboratory is concerned, learned Additional Prosecutor General submits that it is within the mandatory period of 72 hours prescribed under the relevant rules, which were directory in nature otherwise. He therefore, by opposing the appeal submits that the impugned judgment may be maintained and the appeal in hand may be dismissed.
8. Heard Learned Counsel for the parties and perused material available on record with their able assistance.
9. Scanning of the evidence on record reveals that appellant was apprehended from Massan Mohalla of Thul City near a graveyard at about 1845 hours and contraband material weighing 2 kilograms was recovered from his Shalwar Fold. It is not possible to keep 2 Kilogram charas in shalwar fold, even the place of incident was a thickly populated area and Appellant was found alone roaming there. There seems to be no effort on the part of raiding party to associate any independent person with recovery proceedings, as nothing has been explained by the prosecution in that regard. Though section 25 of the CNS Act excludes the applicability of section 103 of the Code of Criminal Procedure, 1898 in search and seizure, making the evidence of police official as good as independent witness, but in the instant case the police party is alleged to be inimical towards appellant, in such circumstances non association of independent witnesses creates doubt to the veracity of prosecution case in particular when the recovery was allegedly affected in urban area during sunset hours when people do often gather in the streets. Per statement of Complainant, the police party remained at the place of incident for about 75 minutes, per mashir ASI Abdul Ghani they consumed about 45 minutes at the place of incident. If the statement of complainant is taken as gospel truth, it would draw an inference that police party remained at the place of incident until 2000 hours (08:00 PM), whereas per complainant they were at police station on the said time and recorded the FIR at 08:00 PM. If the statement of mashir ASI Abdul Ghani is believed true then police party remained at place of incident until 07:30 PM. The improvements and contradictions in the statement of prosecution witnesses creates doubt about witnessing of the recovery proceedings by either of the two.
10. To authenticate the recovery proceedings, if any independent person was not available or refused to associate in the search and seizure then it required the head of the police party to record video through built in camera of mobile phone in order make this court to believe that in fact the recovery was affected from the possession of accused. Under article 119 of the Qanun e Shahadat Order, 1984 if a person intends to make Court believe about the existence of a fact, he is required to prove the same. In no way this burden will shift to the defense unless the prosecution successfully discharges it. For the agencies involved in detection of narcotics cases, it is essential that help of modern technology may be taken by recording video and by taking photographs of recovery proceedings, such important piece of evidence be secured and produced in evidence before Trial Court to dispel any impression of foisting property or false implication. the help of modern technology devices would further support the prosecution case and in case of any loopholes in the prosecution evidence, the accused would not get benefit of the same, as he would not be in position to damage video recordings, once this piece of evidence is successfully brought before Court, the burden will shift to the accused to establish that contraband material was foisted upon him. Article 164 of the Qanun-e-Shahadat Order, 1984 encourages the collection of evidence which may become available because of modern devices, it reads as under:
164. Production of evidence that has become available because of modern devices etc. In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques.
This provision of law envisages that the evidence collected through modern devices or techniques may be produced before Court. The built-in camera mobile phone is the revolution in modern day technology which is available in the hands of every person. It serves many purposes, it can be used as a source for recording audio, video, photography so also recording of statements of the accused under investigation and if securely produced before the Court can serve as a best piece of evidence supporting prosecution case. More particular when Article 165 of the Qanun-e-Shahadat, 1984 gives this law an overriding effect. The production of evidence generated through modern devices would form a substantial piece of evidence in favor of prosecution and help the Court to believe in the existence of a fact that the incident as alleged by the prosecution has occurred, then the burden would shift on the defense to disprove charges. In presence of such a piece of evidence the credibility of witness would hardly be shattered as the entire proceedings would be available before the Court in the shape of video. The use of modern technology would help in curbing the menace of drug peddling as video recordings would expose the faces of many accused persons involved in drug peddling. In the circumstance the Officers of Police, Anti Narcotics Force, Excise Police are directed to ensure that in future the help of modern technology is taken during recovery proceedings by making videos and taking photographs of all the proceedings starting from recovery, deposit of contraband material in malkhana, its sending to Chemical Laboratory for Chemical Analysis. The use of modern technology in the investigation in recovery of Narcotics cases will also be help in eliminating the impression that real culprits involved in drugs peddling are substituted by other persons and real culprits escape the prosecution by wielding influence upon Police Personnel.
11. This view finds support from the judgment of Honorable Supreme Court of Pakistan in the case of Zahid Sarfaraz Gill Versus the State reported in 2024 S C M R 934, wherein the principle for video recording and photography during recovery of contraband substance has been enunciated in the following manner:
“6. In narcotic cases the prosecution witnesses usually are ANF personnel or policemen who surely would have a cell phone with an in-built camera. In respect of those arrested with narcotic substances generally there are only a few witnesses, and most, if not all, are government servants. However, trials are unnecessarily delayed, and resultantly the accused seek bail first in the trial court which if not granted to them is then filed in the High Court and there too if it is declined, petitions seeking bail are then filed in this Court. If the police and ANF were to use their mobile phone cameras to record and/or take photographs of the search, seizure and arrest, it would be useful evidence to establish the presence of the accused at the crime scene, the possession by the accused of the narcotic substances, the search and its seizure. It may also prevent false allegations being leveled against ANF/police that the narcotic substance was foisted upon them for some ulterior motives.
7. Those selling narcotic substances make their buyers addicts, destroy their state of mind, health and productivity, and adversely affect the lives of their family members. The very fabric of society is damaged. ANF and the Police forces are paid out of the public exchequer. It is incumbent upon them to stem this societal ill. The Prosecution services, paid out of the public exchequer, is also not advising the ANF/police to be do this simple act of making a recording and/or taking photographs as stated above.
8. A consequence of poor investigation, not supported by evidence adversely affects the cases of the prosecution. The courts, which too are sustained by the public exchequer, are burdened with having to attend bail applications because the commencement and conclusion of the trial is delayed. It is time that all institutions act professionally and use all available lawful means to obtain evidence. A credible prosecution and adjudication process also improves public perception. We expect that all concerned will attend to these matters with the attention that they demand, because the menace of narcotic substances in society has far reaching consequences: by destroying entire households, creating societal problems and casting a heavy financial burden on the State when drug addicts are required to be treated. Moreover, research indicates that drugs addicts resort to all methods to obtain drugs, including committing crimes.”
12. For the purposes of production of evidence generated through modern technology, the prosecution has to preserve the evidence in line with guidelines envisaged under article 46–A and 78 – A of the Qanun e Shahadat Order, 1984 and keeping in view the parameters laid down under the provisions of Electronic Transactions Ordinance 2002. To bring the said piece of evidence in ordinary manner may not be helpful for the prosecution, any lapse on the part of prosecution in preserving this piece of evidence will again tilt in favor of defense. Therefore, reasonable care and caution has to be exercised during investigation to preserve such piece of evidence in manner which may be acceptable and admissible in evidence and then its production before Court during evidence. It is expected that all the agencies or forces engaged in detecting Narcotics Crimes shall encourage the collection of evidence through modern technique to ensure that no real culprit goes unpunished for the offence he committed and no innocent soul gets involved in a fake recovery case.
13. Honorable Supreme Court of Pakistan in the case of Mian Khalid Pervaiz and others Versus the State reported in 2021 SCMR 522 rejected the evidence of video recording produced before Trial Court while recording evidence in defense and has been pleased to enunciate the following principle.
6. Some of the documentary evidence in defense produced by the Appellant was recorded by automated information system which according to law is admissible under Article 164 of the Qanun-e- Shahadat Order, 1984 (P.O. No.10 of 1984) but in case of denial, law requires that such evidence generated through the system ibid must be proved in accordance with law. The Courts have been empowered to receive and make use of such evidence collected through modern technologies. Articles 46-A and 78-A of the Order ibid as well as the provisions of Electronic Transactions Ordinance (LI of 2002) provide procedure to receive and prove such evidence. Reference in this regard can also be made to the case of Ishtiaq Ahmed Mirza v. Federation of Pakistan (PLD 2019 SC 675) and Ali Raza v. State (2019 SCMR 1982).
14. In depth examination and reappraisal of evidence reveals that contraband material consisting of four pieces each weighing 500 grams was allegedly recovered from the possession of Appellant. Representative sample from every piece was prepared by cutting a single piece from each packet, in all four pieces were separated as sample for sending to Chemical Laboratory. It astonishes that all the four pieces weighed 250 hours, which was humanly not possible to cut a single piece of equal size and weight. Per Prosecution the Sample was prepared separately and sealed in parcel as such two parcels were prepared, but as per entry No 54 of Register 19 produced in Court through PW 3 WASI Ghulam Murtaza, it contains the wording that one black shopper containing 4 pieces charas weighing 2000 grams was received, which takes to an inference that only one of the two parcels was given to the incharge of malkhana. The contraband was recovered on 24.09.2023 and it was sent to Chemical Laboratory on 26.09.2023, the witnesses PW 1 Complainant ASI Sanaullah and PW 4 SIP Farhan Ali IO of the case did not demonstrate during evidence that in the intervening period, in whose possession the custody of recovered contraband remained. The safe custody and transmission of the contraband material to the Laboratory was compromised, which created dent in the prosecution case and doubt so created ought to be resolved in favor of the accused being a blue-eyed child of the criminal law.
15. Honorable Supreme Court of Pakistan in the case of Said Wazir and another Versus The State and others reported in 2023 S C M R 1144 has enunciated the following principle regarding Safe Custody and Safe Transmission of Contraband material:
3. Heard and perused the record. It has been observed by us that recovery was effected on 09.06.2016 whereas sample parcels were received in the office of chemical examiner on 13.06.2016 without any plausible explanation as to where remain these sample parcels from 09.06.2016 to 13.06.2016. The safe custody and safe transmission of the sealed sample parcels has also not been established by the prosecution as Moharrar, who kept the sample parcel in the Malkhana and the concerned Constable (FC No. 1374), who delivered the sample parcel to the office of Forensic Science Laboratory, were not produced by the prosecution. Even the prosecution failed to prove the ownership of the vehicle. 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 Bakhsh 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 defect 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 an accused person beyond any reasonable doubt.
16. Honorable Supreme Court of Pakistan in the case of Lal Jan Versus The State reported in 2023 SCMR 1009 has been pleased to hold as under:
3. We have heard the learned counsel for both sides and without touching the merits of the case, at the very outset, observed that the recovery was effected on 03.07.2015 whereas the sample parcels were received in the office of Forensic Science Laboratory, Khyber Pakhtunkhwa on 15.07.2015 through Arshad Haroon, Constable-32, but the said constable was never produced by the prosecution to establish the safe transmission of the sample parcels to the concerned laboratory story and there is no explanation as to why his evidence was withheld. Even today learned counsel for the State could not offer any plausible explanation to this extent. 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 Bakhsh 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 defect 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 an accused person beyond any reasonable doubt.
17. It is settled principle of law that multiple circumstances were not necessary to create dent in prosecution story, a single circumstance creating reasonable doubt in prudent mind is sufficient to discredit prosecution story, and benefit of such doubt has to be resolved in favor of accused not as a matter of grace but as a matter of right. It is always the prosecution burdened to prove its case beyond shadow of doubt and once it fully discharges its burden then it shifts to the defense.
18. Honorable Supreme Court of Pakistan in the case of Ahmed Ali and another Versus The State reported in 2023 S C M R 781 has held as under:
12. Even otherwise, it is well settled that for the purposes of extending the benefit of doubt to an accused, it is not necessary that there be multiple infirmities in the prosecution case or several circumstances creating doubt. A single or slightest doubt, if found reasonable, in the prosecution case would be sufficient to entitle the accused to its benefit, not as a matter of grace and concession but as a matter of right.
19. For what has been discussed herein above, the prosecution has failed to prove its case against the appellant beyond shadow of reasonable doubt, benefit of which, ought to be given to the accused. Consequently; we allow this appeal, set aside the impugned judgment dated 03-07-2024 passed by the Court of Learned Sessions/Special Judge (CNS) Jacobabad, in Special Case No.116/2023 “Re The State Versus Shafi Mohammed”, and acquit the Appellant Shafi Mohammed Sarki of the charge of above Special Case. He shall be released forthwith if not required in any other case.
20. Office is directed to send copy of the judgment to Inspector General of Police Sindh, Director General Excise and Taxation Department, Home Secretary Sindh and Director General Anti Narcotics Force Islamabad for its perusal and compliance of the directions contained in Paragraph No 10 to 13.
The appeal stands disposed of in above terms.
JUDGE
JUDGE
Asghar/P.A