2025 P Cr (PLP)

Khadim Hussain Soomro, J.

Through this Criminal Appeal, the Appellant has assailed judgment dated 06.01.2024, passed by learned 1st Additional Sessions/MCTC Special Judge for C.N.S. Cases, Kandhkot in Special C.N.S. Case No.37 of 2023, emanating from Crime No. 42/2023, registered at P..S., Guddu under section 9(c) CNSA, 1997, whereby the Appellant was convicted and sentenced to nine years R.1 and fine of Rs.80,000/; in case of default in payment of fine, he shall undergo S.I. for two years more. The benefit of section 382-B, Cr.P.C. was also extended to the Appellant.

2. Briefly, the facts of the case are that on 09.08.2023, S.I.P. Manzoor Ahmed Laghari received spy information that one person had Charas in a black colour shopping bag available near R.D-17, a crash machine; consequently, the complainant, along with his subordinate staff, namely A.S.I. Mukhtiar Ali, PC Noor Hassan, PC Shaiq, PC Abdul Ghaffar, and D.P.C. Qudrat Ali left the Police Station towards the pointed place under daily diary No.50 at 1550. At 1600 hours, the police party reached the pointed place where they saw that one person was standing on the northern side of the road with a black colour shopping bag seeing the police party tried to escape, but he was apprehended along with the shopping bag. The complainant opened the same and found Charas in the shape of 06 large slabs. Subsequently, the complainant made A.S.I. Mukhtiar and PC Moor Hassan as mashirs, the accused disclosed his name to be Ahmed Khan, son of Muhammad Siddique alias Sadique Bhayo; a body search of the accused was conducted whereupon 05 currency notes of rupees one hundred denomination were recovered. Then, the complainant weighed the Charas on digital balance, which became 2940 grams; the said Charas was sealed on the spot, and such mashirnama of arrest and recovery was prepared in the presence of the above mashirs and their signatures were obtained on it. The police party returned to the Police Station 'along with the accused and case property where instant FIR under section 9(c) of the CNSA, 1997 was lodged on behalf of the State.

3. After completion of formalities, a formal charge was framed against the Appellants/accused, to which he pleaded not guilty and claimed to be tried. In order to prove its case, the prosecution examined the eye-witness/Mashir A.S.I. Mukhtiar Ali Choliyani at Ex.3, he produced mashirnama of arrest and recovery, mashirnama of site inspection at Ex:3/A and B, dispatch rider PC Shaique Ali Mazari was examined at Ex.4, he produced P.S. Copy of R C No.77 at Ex:4/A, complainant S.H.O. Manzoor Ahmed Laghari was examined at Ex:5, P.W. the incharge Malkhana W.H.C. Muhammad Hassan Bhangwar was examined at Ex:6, he produced P.S. Copy of entry No:21 of Register No:19 at Ex.6/A, IO/SIP Muhammad Iqbal Jakhrani was examined at Ex.7. he produced D.D. entries Nos.19, 21, P.S. Copy of permission letter, P.S. Copy of D.D. entries Nos.26, 20, Chemical report at Ex:7/A to 7/E, respectively. Thereafter learned ADPP closed the side of the prosecution vide Statement at Ex.8. The statement of the accused as provided under section 342 Cr.P.C. was re-recorded Ex.9, wherein he neither opted to get him examined on oath nor any witness in his defence.

4. The learned trial court found the Appellant guilty of the offence, with which he was charged, convicted and sentenced as mentioned aoove, which is assailed through this Criminal Appeal.

6. Learned counsel for the Appellant/accused has contended that the impugned judgment passed by the learned trial Court is illegal, unlawful and based on mala fide; that there is a delay of seven days in sending the sealed samples of contraband material to the chemical examiner; that as per Rule 14 of C.N.S. Analysts Rules, the sealed samples are to be sent within 72 hours; that the chemical examiner received the case property from P.O Shafiq, Buckle No.4496 whereas the prosecution examined P.S. Shaeq having different buckle bearing No.4495. Hence, P.O Shafiq and P.O Shaeq are two distinct individuals. Finally, learned counsel for the Appellant/accused prays that the impugned judgment may be set aside. In support of his contentions, learned counsel for the Appellant has relied upon the case law reported as 2023 SCMR 1144 (Said Wazir and another v. The State and others) and 2023 SCMR 986 (Muhammad Hazir v. The State).

7. Learned Additional Prosecutor General, Sindh, appearing for the State, has contended that the appellant/accused was nominated in the FlR and was identified by the police Officials, the 'alleged recovery: Of contraband material took place from his exclusive possession; that the contraband material was sealed on the spot and deposited in Malkhana, whereafter the same was sent to the chemical examiner, and the report was received in positive, that there is no ill will on the part of the police officials to implicate the appellant/accused;. therefore, he prayed that the conviction and sentence awarded to the Appellant may be maintained.

8. We have given due consideration to the arguments advanced by the learned counsel for the Appellant accused as well as the learned Additional Prosecutor General Sindh and have gone through the material available on record.

9. The prosecution examined the eye-witness/Mashir A.S.I. Mukhtiar Ali Choliyani and complainant S.H.O. Manzoor Ahmed Laghari deposed with one voice that on 09.08.2023, they had apprehended the Appellant along with the 06 large slabs Charas, which was of 2940 grams. According to the chemical examiner's report dated 30-08-2023, seven large slabs of Charas were received. The prosecution witnesses attempted to substantiate their claim by asserting that there were originally six large slabs of Charas, with one slab broken down, resulting in seven slabs. However, the chemical examiner's report does not corroborate the prosecution's claims regarding the quantity of Charas involved.

10. It is worth noting here that the alleged case property was recovered from the Appellant on 09.08.2023, and on the same day, it was deposited to malkhana, and such entry in Register No. 19 was made. The examination of the aforementioned entry lacks a clear indication of the time, date, month, and year of its recording, thereby giving rise to doubt regarding its authenticity. According to the Chemical Examiner Report dated 30-08-2023, the case property was received on 16-08-2023, along with a memorandum [ Road Certificate] No. 77 dated 10-08-2023. The perusal of Memorandum No. 77, reveals that the case property was handed over to P.O Shafiq/ Shaeeq on 1008-2023 for depositing the same to the chemical examiner, but the same was deposited on 16-08-2023. The prosecution failed to justify where and with whom the case property was keptduring this interval period. The prosecution is under an obligation to prove a chain of safe custody for sample parcels, which commences from the seizure of narcotics by the police, including their dispatch to the Malkhana and subsequent transmission to the testing o laboratory. Hence, the prosecution failed to establish safe custody and transmission. This chain of safe custody and transmission is crucial, forming the foundation of the C.N.S. Act of 1997 and the Control of Narcotic Substances (Government Analysts) Rules, 2001.

11. Rule 4 of Control of Narcotic Substances (Government Analysts) Rules, 2001, states that a sealed parcel of contraband is to be dispatched for analysis under the cover of a Test Memorandum specified in Form-A at the earliest but not later than 72 hours of the seizure. In the instant case, the alleged recovery was made on 09-08-2.023, and the. same was sent to the chemical examiner fora report on 10-08-2023. However, the sample was received on 16-08-2023, after the lapse of 6 days; the prosecution has not explained the delay in depositing the sealed sample within time. No doubt the Rules cited above are not mandatory but directory in nature. However, non-compliance with the rule puts a huge dent in the prosecution case and creates doubt in the conclusiveness of the chemical examiner report. In this regard, reliance can be placed on, the case of Muhammad Aslam v. The State reported in 2011 SCMR 820.

12. In the case of Qaiser and others v. The State (2022 SCMR 1641), the Supreme Court of Pakistan, in paragraph No. 4 of the judgment, has observed that in the absence of establishing secure custody and transmission, the possibility of tampering cannot be discounted. The chain of custody for sample parcels commences from.the seizure of narcotics by the police, including the separation of representative samples, their dispatch to the Malkhana, and subsequent transmission to the testing laboratory. This chain of custody and transmission is crucial as it forms the foundation of the Act of 1997 and the Control of Narcotic Substances (Government Analysts) Rules, 2001 (Rules 2001). It is incumbent upon the prosecution to ensure the safe and secure handling of this chain of custody, given the critical importance of the chemical examiner's report under the Act of 1997. Any break in this chain, whether in the safe custody or transmission of representative samples, renders the chemical examiner's report unreliable and unsuitable for substantiating the conviction of the accused. Such a lapse by the prosecution introduces doubt and undermines the conclusiveness and trustworthiness of the chemical examiner's report. The relevant paragraph of the judgment is reproduced as under:- "In absence of establishing the safe custody and safe transmission, the element of tempering cannot be excluded in this case. The chain of custody of sample parcels begins from the recovery of the narcotics by the police including the separation of representative samples of the recovered narcotics, their dispatch to the Malkhana and further dispatch to the testing laboratory. The said chain of custody and transmission was pivotal as the entire construct of the Act 1997 and the Control of Narcotic Substances (Government Analysts) Rules, 2001 (Rules 2001), rests upon the report of the analyst. It is prosecutions bounded duty that such chain of custody must be safe and secure because the report of chemical examiner enjoined critical importance under the Act 1997, and the chain of custody ensure the reaching of correct representative samples to the office of chemical examiner. Any break in the chain of custody i.e. the safe custody or safe transmission of the representative samples, makes the report of chemical examiner worthless and un-reliable for justifying conviction of the accused. Such lapse on the part of the prosecution would cast doubt and would vitiate the conclusiveness and reliability of the report of chemical examiner. "

13. To create and grant the benefit of the doubt to an accused, it is not requisite for the prosecution case to exhibit multiple deficiencies or numerous circumstances inducing doubt. A single or minimal doubt, if deemed reasonable, is adequate to warrant the benefit of the doubt for the accused, not as an act of grace or concession but as a matter of legal entitlement. Reliance can be placed in the case of Tajamal Hussain v. The State 2022 SCMR 1567; Sajjad Hussain v. The State 2022 SCMR 1540; Abdul Ghafoor v. The State 2022 SCMR 1527; Kashif Ali v. The State 2022 SCMR 1515: Muhammad Ashraf v. The State 2022 SCMR 1328; Khalid Mehmood v. The State 2022 SCMR 1148; Muhammad Sami Ullah v. The State 2022 SCMR 998; Bashir Muhammad Khan v. The State 2022 SCMR 986; The State v. Ahmed Omer Sheikh 2021 SCMR 873; Najaf Ali Shah v. The State 2021 SCMR 736; Muhammad Imran v. The State 2020 SCMR 857; Abdul Jabbar v. The State 2019 SCMR 129; Mst. Asia Bibi v. The State PLD 2019 SC 64; Hashim Qasim v. The State 2017 SCMR 986; Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Zaman v. The: State 2014 SCMR 749; Khalid Mehmood v. The State 2011 SCMR 664; Muhammad Akram v. The State 2009 SCMR 230, Faheern Ahmed Farooqui v. The State 2008 SCMR 1572; Ghulam Qadir v. The State 2008 SCMR 1221 and Tariq Pervaiz v. The State 1995 SCMR 1345. In the current instance, dense mists of doubt surround the prosecution's account. The learned trial Court did not examine the evidence in its natural context, arriving at an incorrect result by finding this Appellant guilty of the charge. As a result, and for the preceding reasons, the conviction and sentence awarded by the learned trial Court against the Appellant is unsustainable. Consequently, the appeal was allowed by a short order dated 16.09.2024, whereby the Appellant, Ahmed Khan Bhayo, was acquitted of the charge, and these are the reasons for the above-mentioned short order. JK/A-98/Sindh Appeal allowed.