MANZOOR AHMED S/O SHAH MUHAMMAD (Appellant) VS THE STATE (Respondent)

Nqrc-tt.r, NoslC+"[) !8,

IN THE HIGH COURT OF SINDH, KARACHI

Present:

Mr. lustice Mohamtnad Karim Khan Agha Mt lustice Ztlfiqar Ali Sangi

CRIMINAL APPEAL NO.139 OF 2021.

Appellant: Manzoor Ahmed s/o Shah Muhammad through Mr. Umar Farooq, Advocate.

Respondent: The State through Mr. Muhammad Iqbal Awan, Additional Prosecutor General Sindh,

Date of Hearing: 04.1-t.2022 Date of Announcement: 10.1't.2022

IUDGMENT

Mohammad Karim Khan Asha, f:- The appellant Manzoor Ahmed son of Shah Muhammad was tried in the Court of Model Criminal Trial Court Extension/ Vth Additional Sessions Judge Karachi (East) in Session Case No.1022 of 2019 out of Crime No.71l2019 u/s. 6/9(c) of. CNS Act, 1997 registered at PS Soldier Bazar, Karachi vide judgment dated 13.02.2021 and was convicted for offence punishable u/s.265-H(ii) Cr.P.C and sentenced to suffer life imprisonment witl"r fine oi Rs.10,00,000,2- (Ten Lacs). Appellant was also extencletl the benefit of Section 382-ll Cr.PC.

2.The brief facts of the prosecution case are that on 25.02.20'19 the complainant SIP Hussain Dino during patrolling in the area received spy information that one truck bearing registration No.JV-3801, white and blue color having huge cluantity of chars, hidden inside Apple Boxes will arrive from Golimar/Pak Colony, Love Lan Bridge, Karachi. On sucl-r information the complainant reached near Pakistan Quarter, opposite Good Luck Malriage Hall, Garden West Karachi. At about 1400 hours on the pointation of Spy informer the complainant stopped the said tluck with the help of subordinate police officials. On query, c'lriver disclosed his name as Manzoor Ahmed son of Shah Muhammad and the person sitting on the front seal next to the dlivers seat disclosed his name as Muhammad Lal S/o., Bashir Ahmer'i. From personal search of accused Manzoor Ahmed cash amount of Rs.4300/-, two nrobile phones viz. one Samsung Glaxy J7, Golden Color and Nokia Model 130 ot

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white color were recovered. Thereafter the complainant contlucted search of the said fruck and recovered 10 boxes/wooden rnade peties of chars amorrgst the boxes/wooden made peties of apple from the said truck. The complainant then weighed the recovered chars and found as under:-

i)From foul peties 12 packets of chars (in each petie) wrapped with vellow, color plastic tape, weight of each packet 1150 grams, total weipJht of eaclr petie 13800 grams, and total weight 55 kilo 200 grams chars was recovered.

ii)From one petie 10 packets of chars rvrapped with yellow color plastic tape, weight of each packet 1150 grams, total weigl'ring 11 kilo 5t)t) gr.rms chars was recovered

iii)From one petie 10 packets of chars wrapped with yellow color plastic tape weighing 1150 grams each, total weighing 11 kilo 500 grams clrars, was recovered (on the packets value was rvritten).

iv)Florn tlvo paties 24 packets of chars wrapped with yellow color plastic tape in which worcling value was written in Urciu, r.t,eighing 1150 grams (eacl-r pack) total weighing 27 kilo 600 grams chars was recoveretl.

v)From one petie 20 packets of chars, wrapped with chocolate and blue color plastic panni/pack, each packet'.eighing about 1L50 glams, total weighing 23 kilograms chars on it wording LAV AZZA was written recovered,

vi)From one petie 12 packets of chals, wrappetl with yellow, ancl creanr color plastic pack/panni, each packet weighing 1400 grarns, on packets New England COFFEE was written, total weighing 16 ki'lo 800 granrs was recovered.

3.In total 145 Kilo 600 grams chars was recovered from the said peties. The complainant took one packet frorn each box/petie of chars from the saicl 1f) recovered peties/boxes as samples, for sending the same for chemical exanrinirtion and sealed the same on the spot. He also sealed the remaining chars in 1{) peties/boxes separatelv on the spot. He took the said truck ancl 30 peties/boxes of apples into police custody so also allester-'l both the accusecl persons under the mashirnama of memo of arrest and recovery and brought the accusecl persons along with the recovered case properties at PS, where FIR of irrstant case was registeled against accused persons.

4, After completion of investigation, the challan was submitted against the appellant/ accused and charge was framed to which he pleaded not guilty an.1 claimed trial.

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5.The prosecution in order to prove its case examined 03 witnesses antl exhibited various documents and other items. The statement of the accused was recorded under Section 342 CI.P.C in n,hich he r{enied the allegations leveled against him claiming false implication by tl-re police. The appellant dill not givc evidence on oath ancl did not call any DW in support of his clefence case.

6.After hearing the parties and appreciating the evidence on record, the trial court convicted the appellant ancl sentencecl him as set out earlier in this juclgmcnt; hence, the appellant has filed this appeal against his conviction.

7.The facts of the case as well as evidence produced before the trial court fincl an elaborate mention in the impugned judgrnent passed by the trial court anrl, therefore, the same may not be reproduced here so as to avoid duplication anel unnecessary repetition.

8.Learned counsel for the appellant arguecl th:rt he lvas completelv itttrttcetrt and l-rad been falsely implicated by the police in order to show theil eificiency; that there were contradictions in the evidence of thc prosecution witnesses and as such it could not be safely relied upon; that the nalcotics had been foistecl on hiru that safe custod,v and safe transmission of the narcotic to the chemical examiner had uot been proven and as such the chemical report was without any legal value anrl as such for any or all of the above reasons the appellant should be accluittecl of thc charge by bcing extended the benefit of the doubt. Learned counsel has relier-l upon the cases of Qaiser |aved Khan v. The State through Prosecutor General Punjab, Lahore and another (PLD 2020 Supreme Court 57), Khair-ul-Bashar v. The State (2019 SCMR 930), Ameer Zeb v. The State (PLD 2012 Supreme Court 380), Abid Ali v. The State (2022 P Cr.Ll 1088), Qaiser Khan v. The State through Advocate- General, I(hyber Pakhtunkhwa, Peshawar (2021 SCMR 363), Shan v. The State (2018 MLD 702), Haji Inayat and another v. The State (2010 I' Cr,Ll 825), Amanat Ali and 2 others v. The State (2008 SCMR 991), Tariq Pervez v. The State (1995 SCMR 1345) and Nazeer Ahmed v. The State (PLD 2009 Karachi 191).

9.Learned Additional Prosecutor General Sindh has fuily supported the impugned judgment and has submitted that the appellant was caught red handed on the spot and narcotics weLe recovered from the truck which he was driving hidden in boxes containing apples; that safe custody of the narcotic had Lreen proven and the recovered narcotic produced a positive chemical report and as sucl;

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the prosecution had proved its case beyond a reasonable doubt and the appeal should be dismissed.

10.We have heard the arguments of the learned counsel for the appellant and learned Additional Prosecutor General Sindh and have also gone through the entire evidence which has been read out by the leamed counsel for the appellant and the impugned judgment with their able assistance.

11.In narcotic cases, one of the most crucial aspects is that the prosecution must prove safe custody of the narcotic from the time of its recovery until the time when it is sent for chemical examination. If they fail to do so then there is a possibility that the narcotic substance had been tampered with before it was received at the chemical laboratory for its examination. In such like cases whete unbroken chain of safe custody cannot be proved by the prosecution then the chemical report is of no legal value. It is noted that this is the view taken by the Supreme Court regardless of the amount of the recovery whether small or huge as the principle remains the same. In this case the appellant was arrested by the police on 25.02.2019 when the recovery of the narcotic was made from the truck which the accused was driving. According to PW 1 who was the complainant in this case who made the arrest and recovery from the appellant he gave the recovered narcotic to the IO' The IO then apparently placed it in the malkhana where it remained for 2 days before being sent for chemical examination. However no malkhana entry was exhibited and neither the head of the malkhana nor anyone working at the malkhana was examined to prove this fact, PW 3 Asif Raza Khawija who was the IO of this case on this point stated in material part in his evidence as under;

"The complainant handed ooer case Property to me. Thz case property zoas lctpt in the Malkana. I haae not noteil enfiy registration No.79 about the case prcPerty, I cannot say whether the complainatt has takm out case property ftom the Malkhana. I sent the samples of case proPefty taking parcels from the Malkhana. It is conect that I haoe not produceil any efltry from register No,Tg,llsually head Mohrar of PS was in chatge of Malkhana. I haae not recoileil the statemmt of in charge MalkhanaheadMohrar Ch. Zahitl" (bold added)

12.The narcotic reached the chemical examiner for his report 2 days later on 27.02.2019. As mentioned above however the prosecution has not produced any evidence in respect of the safe custody of the narcotic during this Period' The malkhana in charge was not examined and no malkhana entry was produced in evidence by the prosecution to prove the safe custody of the narcotic and it was even unclear whether the complainant had entered the malkhana during this period

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and taken the narcotic out befole replacing it again as such it is unclear where tlre narcotic was for this 2 day period before it was taken for chemical 'examination on 27 .02.2019 and as such during this period the narcotic might have been tampere,-l with. Thus based on the particular facts and circumstances of this case we find tl-rat the prosecution has not been able to Prove safe custodv of the narcotic from the tirne rvhen it was recovered from the appellant till the time when the same was sent for chemical examination ancl as such the chemical report is of no legal value to the prosecution in proving the lecoverc'd narcotic.

13.With legald to the intPortance of the Prosecutioll proving safe custodv of the narcotic from the time of its recovery to the time it was sent for chemical analvsis the same was stressed/ emphasized by the Supreme Court in the case of Qaisar Khan V State (2021 SCMR 363) which held as under;

"3. We ]nzte lrcnrd thc lennred counsel for the petitioner ns uell as tlta Lenrned Additiornl Adztocnte General, KPK and perused tlrc nttnilnble record alongtoith tlu impugncd judgment zpith thtir nssistatre nnd obserued tlnt in this case the proseantion has;fn'iletl to establish tlrc snfe cr.rstodtl nnd snJe transtnission of sanryle parcels to tle concerned laboratory. This court lmd laid doton in mnny judgnrnts that tlt? representatitte snruples of tltc nlleged drug nntst be kept tn snfe cuskxhl nnd unclergo sat'e transmission .from the stnge of recot,anl till its submission to the officc o.f the Gotcrnnrt:nl attnlyst. Non *tabLislitrg the said facts zoould cost iloubt and ruoulcl impair and uitiutr tlrc conclusiaeness and reliability of the reqort oI the Gopennnent analyst. Thts renilering it itcapable of sustaining contictiofl.

4.In tlrc present cnse no police official ruas produced before tlr Trisl Court to report nbout safe custotly of samples if entntsted to hirtL for being kept in tlrc Malkhana in snfe custody. Eaen the police ot'fcinl tp/lose belt nunfuer (FC 4225) has been mentioned by the Cottenmtetrt nnnlyst in his repofi, tt)fls not prodttced by the prostcution to depose regarding the safe deposit of the said sample pnrcels in th! crtnccrned laboratory. The record repenls thtt the reco'uery ruas allegedly affected on 19.08.2011 rtherets, according to the report of chemicnl etonintr, tlrc snnple parcels ruere receiued in tlrc snid office on 26.08.2011 Nobody frou the proseartion side runs produced to chin thtf tluring tlis period tlrc said snmple pnrcels renrnined rtkrct irt i tis posscssiott or under lris control in the Malkhnna in safe custody.* Ezten tlrc prosecution is silent ns to zolrcre remnined tlrcse sample pnrcels.front 1-9.08.20'1.1. to 26.08.2011. In absence of establishing the safe ttrstody nnd snfe transntission, tlrc elenrcnt ol tanryeing cannot be errludarl nt tlis cnse. Tle cl'nh of custody o.f nm\',lc parcels ltegins Jtott tlr recottery of thc narcotics bt1 thc pttlice including tlrc stpnrntiott ttJ' representntiue samples of tlrc recouered narcotics, theit dispatch to the Mnlklnna nrLd further dispntch to the testittg lnhoratory. T'|rc sdtl clnitt of ctLstody nnd transntissiort runs pit otal as tlrc entire constntct of tlrc Act 1997 and tllr, Control of Nrcotic StLbstant:e (Cotterntnent Analysts) Rule 2001 (Rules 2001), rest upon tl're report of the annlryst. It is prosecution's bounded duty thnt such clnin of custotly ttrrtst ht'-

snfe and seutre becnuse the report of chemicnl etnminer tnjoitrrl critical importnttce unrler tlrc Act L997, nnd the chain of cLtstodtl ensure the renchirtg of correct rtpresentntirte samples to llrc offica of chemical examiner. Any break in the chain of custody i.e. the safc custody or sale transflrission of the represefltatiue samples, makes the report of chenical exanriner worthless ancl un-reliable for iustifuing conaiction of the acatsed. Such lapse on tlrc patt of prosecutiol, zrtoultl cast doubt and zuould l,itiatu tlrc conclusiaeness and reliability of the report of chemical exaflriner. Reliance can be ntnde upon tlrc judgments rendert:d ltrl tlu: three mtntbers benches of tlis court i.e. lkramullah zt. the State (2015 SCMR 1002), the State u. lmran Bakhsh Q018 SCMR 2039), Abdul Ghani zt. the state (20-19 SCMR 608). Knnrran Slrnlr ; s. flrc State (2019 SCMR 1217), Mst. Razia Sultano u. the Stotr (2011) SCMR 1300), Faizan Ali a. the State (2019 SCNIR 1649). Zalrir Shah alias Shat o. State thr, AG KPK (2019 SCMR 2004), Haji Naruaz a, the Statc (2020 scMR 687), Ottis er Khan t. thc State (2021 SCMR 363), Mst. Sakha Rantzan zt. the State (2021 SCMR 451), Zubair l{han u the State (202'1 SCMR 492) nnd Gulzar t. thc State (2021 SCMR 380)."

14.Thus for the reasons mentioned above we find that the prosecution has not proved its case beyond a reasonable doubt against the appellant especialll, in terms of proving safe custodv of the narcotic and hence by being extencled the benefit of the doubt the appellant is hereby acquitted of the charge. The appellant shall be released forthwith unless he is wanted in anv other custodv case,

15.The appeal stands disposed ofin the above terms.

I ClIl Io l,') LL

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