2019 PLP 608 (SCMR)

ASIF SAEED KHAN KHOSA, C.J.

Criminal Appeal No. 20-K of 2018 Abdul Ghani, Barkat Ali, Hakim Ali, Khan Muhammad and Abdul Majeed appellants were apprehended when a raid was conducted at a den of narcotics allegedly being run by the appellants and different quantities of charas, charas garda, opium and liquor were recovered from their individual and joint possession. With these allegations the appellants were booked in case FIR No. 57 registered at Police Station Anti-Narcotics Force, District West Karachi on 05.11.2013 in respect of offences under sections 6, 9(c), 14 and 15 of the Control of Narcotic Substances Act, 1997. After a regular trial the appellants were convicted by the trial court for an offence under section 9(c) read with sections 14 and 15 of the Control of Narcotic Substances Act, 1997 and were sentenced to imprisonment for life each and to pay fine which convictions and sentences of the appellants were subsequently upheld and maintained by the High Court and an appeal filed by the appellants was dismissed. Hence, the present appeal by leave of this Court granted on 10.08.2018.

2. There is hardly any occasion for discussing the merits of the case against the appellants because the record of the case shows that safe custody of the recovered substance as well as safe transmission of samples of the recovered substance to the office of the Chemical Examiner had not been established by the prosecution in this case. Nisar Ahmed, S.I./SHO complainant (PW1) had stated before the trial court that he had deposited the recovered substance at the Malkhana of the local Police Station but admittedly the Moharrir of the said Police Station had not been produced before the trial court to depose about safe custody of the recovered substance. It is also not denied that Ali Sher, H.C. who had delivered the samples of the recovered substance at the office of the Chemical Examiner had also not been produced during the trial so as to confirm safe transmission of the samples of the recovered substance. It has already been clarified by this Court in the cases of 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) that in a case where safe custody of the recovered substance or safe transmission of samples of the recovered substance is not proved by the prosecution through independent evidence there it cannot be concluded that the prosecution had succeeded in establishing its case against the appellants beyond reasonable doubt. The case in hand suffers from the same legal defects. This appeal is, therefore, allowed, the convictions and sentences of the appellants recorded and upheld by the courts below are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required to be detained in connection with any other case. Jail Petition No. 458 of 2018

3. Barkat Ali and Khan Muhammad petitioners had also filed another petition for leave to appeal before this Court against the same judgment passed by the High Court and in the said petition leave to appeal had been granted by this Court. Criminal Appeal No. 20-K of 2018 arising out of the said petition has been allowed by this Court today and both the present petitioners, who were some of the appellants in that appeal, have been acquitted of the charge by extending them the benefit of doubt. This petition has, thus, been found by us to be superfluous and the same is hereby disposed of. MWA/A-6/SC Appeal accepted.