2021 PLP 984 (YLR)

FAHEEM AHMED SIDDIQUI, J.

Murad Ali Kalhoro appellant was tried by learned Sessions Judge/Special Judge (CNS) Naushehro Feroze for an offence under section 9(c) Control of Narcotic Substances Act, 1997 (hereinafter referred to as 'the Act'). After regular trial, vide Judgment dated 04.03.2019 appellant was convicted for the said offence and sentenced to imprisonment for life and to pay fine of Rs. 100,000/- (one lac), in case of non-payment of fine, he was ordered to suffer S.I for one year. However, the appellant was extended benefit of section 382-B, Cr.P.C.

2. Brief facts leading to the filing of appeal are that on 22.10.2018 at 2130 hours complainant SIP Gulzar Ali Mari along with HC Muhammad Haroon, PC Tarique Majeed, and PC Muneer Ahmed left Police Station for patrolling under station diary No.25 at 1800 hours in a police mobile driven by driver PC Zahid Hussain. During patrolling, the said police party received spy information that a person having hashish (charas) in his custody and he was going to Abran from Mithiani on a motorbike. On such information, the raiding police party acted promptly and reached the reported place, where they spied the said person. He was intercepted and interrogated about his name and other relevant information. He disclosed his name as Murad Ali son of Sheral by caste Kalhoro and also intimated about his place of permanent abode. On combing the said person and his motorbike, the police party found one bag lying on the oil tank of his motorcycle which was checked and found containing 13 packets of hashish (charas). Due to the non-availability of private persons, the search was conducted by nominating HC Muhammad Haroon and PC Tarique Majeed as marginal witnesses. The hashish (charas) was weighed and found 13 kilograms, the same was sealed on the spot while from the personal search, an amount of Rs.6500/- was recovered from the side pocket of the shirt of apprehended person. The memo of arrest and recovery was prepared on the spot and the accused with the recovered property was brought at Police station where FIR was registered on behalf of State.

3. Since the appellant has refused charge and claimed trial; therefore, the prosecution was required to prove the case during trial. After full-fledged trial spreading from Ex- 02 to Ex-08, and recording of statement of the accused (appellant) under section 342 of Cr.P.C. (Ex-09), the trial Court declared the charge proved and convicted and sentenced the appellant as mentioned above.

4. After the recital of the entire deposition recorded during trial, the learned counsel for the appellant opens his arguments. Mainly his arguments rest on the purported failure of the prosecution to establish their case against the appellant. According to him, the recovery of contraband articles was allegedly effected on 22-10-2018 but the same was received by chemical analyzer on 26.10.2018, as such the safe custody of the recovered hashish (charas) remains questionable. He further alleges that the safe custody of case property at the police station is also dubious as neither register 19 nor extract of the daily diary was produced during trial. The description of the case property mentioned by chemical analyzer regarding its packaging and numbers are distinguishing to the description mentioned by the complainant and marginal witness. He contends that the bearer of narcotics is PC Ghulam Hussain but he did not disclose this aspect of the case in his deposition. He further submits that the complainant, witness, and even memo of arrest and recovery are not in agreement on vital points. He further submits that the incident is mentioned as night time but the witness did not say anything about the source of light under which the memo was prepared. He submits that the police party belongs to Police Station Abran but FIR was lodged at Police Station N. Feroz, which according to him creates doubt as the police party of Police Station Abran cannot patrol in the territory of Police Station N. Feroz without informing and placing an entry in Police Station N.Feroz and such entry was also not produced. He further submits that the property was not confronted with the accused in his 342, Cr.P.C. statement, as such conviction cannot be awarded. He refers to a photograph produced by the appellant under his 342, Cr.P.C. statement showing that a person is apprehended by two rangers personals. He alleges that the apprehended person in the photograph is the appellant, and since his motorcycle collided with Rangers' vehicle; therefore, the instant case was fabricated against the appellant. In support of his contentions, he has relied upon the cases of Wahid Bakhsh v. The State (2001 YLR 2958), Desser Mal v. The State (2007 PCr.LJ 462), Irfan Ali Bhayo v. The State (2008 YLR 37), Ameer Hamza alias Hamza v. The State (2015 PCr.LJ 1402), Hussain Vakhsh alias Kabacho Channa v. The State (2017 PCr.LJ 501), Shan v. The State (2018 MLD 702), Shoaib Ali v. The State (2018 MLD 1835), The State v. Imam Bakhsh and others (2018 SCMR 2039) and Muhammad Boota v. The State and others (2020 SCMR 196).

5. Mr. Aftab Ahmed Shar, Additional P.G. while opposing the instant appeal emphasizes that the prosecution has established their case. According to him, the investigating agency sent the entire property for chemical analysis and the report comes in positive. He submits that there is no hostility of the raiding police party to attract the possibility of false involvement. According to him, the appellant was apprehended redhandedly with the contraband material and the lacuna pointed out are minor and the same may not come in the way of the prosecution case. After quoting section 29 of the Act, he submits that the presumption goes against the appellant as the contrary could not be established. He submits that the magnitude of recovered narcotics itself sufficient to belies foisting by police. Regarding lodgment of FIR at Police Station N. Feroze, he submits that till that time Police Station Abran was not notified to keep a book under section 154, Cr.P.C., as such the FIRs were used to lodge at the parent police station. Regarding photographs, he submits that the same needs to be establish as genuine and only its production is not sufficient to cause a dent in the prosecution case. In support of his contentions, he has relied upon the cases of Muhammad Sarfraz v. The State (2017 SCMR 1874), Budho and 2 others v. The State (2018 PCr.LJ 1393), Shazia Bibi v. The State (2020 SCMR 460), Mushtaque Ahmed v. The State and another (2020 SCMR 474) and Asmat Ali v. The State (2020 SCMR 1000).

6. We have intently listen the arguments of the learned counsel for the appellant and learned Addl. P.G. We have also critically examined the entire material placed before us in the light of valued submissions.

7. In the instant case, the argument of learned counsel for the appellant would be that the recovered hashish (charas) were transmitted to the chemical analyzer with a delay of 4 days as such its safe custody during the transition and at the police station is doubtful. In this respect, we do not need to observe here that emphasize regarding the chain of safe custody is given with a view that all material seized, as per provision under section 27 of the Act, in an action under the Act, must be deposited with the officer in charge of the nearest police station having requisite facilities and the records to ensure that all the material is kept in safe custody and there is no scope of its being lost or tampered with. We are of the view that the non-production of Register No. 13 or its extract does not mean that the property was not in safe custody. We do need to observe here that for good reason, it is necessarily implied that at the earliest point of time, all material seized in any action under the Act, must be deposited with the officer-in-charge of the police station because he is an officer of sufficient rank and he is also invested with the requisite facilities to ensure that all the material is kept in safe custody. We further observe that if the contraband material is deposited with the nearest police station having the requisite facility (in present case Police Station N. Feroz), then there remains no scope of its being lost or tampered with. No doubt, since the consequences of a prosecution under the Act are serious, it is equally incumbent that safeguards be taken to ensure that there is no scope for any accident or for that matter negligence or even tampering. We are of the view that if the property was deposited at the earliest point of time with the police station and the same remained there from the date of recovery to the date on which the same was received with the chemical analyzer, the chain of safe custody remains unbroken. Chain of safe custody begins with the recovery of narcotics; it includes the separation of sample and sealing the same on the spot and it should remain continuous and intact till its dispatch to the chemical analyzer and received by him in the same sealed condition. Any break in the chain of custody or lapse in the control of the sample would cast doubt and also impair the conclusiveness of the report of the chemical analyzer. In this respect reliance may be placed on the case reported as The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039). It is pertinent to point out that prosecution witnesses have stated that the property was sealed on the spot and as per report of Chemical Analyzer the property was received in sealed condition which is sufficient to establish the chain of safe custody specially when no question was put by the defense in this regard. In this respect we would fortify our view from unreported recent Judgment of Hon'ble Supreme Court dated 03.03.2020 in 2020 SCMR 590 (Re: Zahid and Riaz Ali v. The State) has observed as under. "5 . The chemical examiner's report produced by the lady doctor states that the seals of specimens sent for chemical examination were received intact and it was the chemical examiner who had broken open the seals, therefore, the contention of petitioners' learned counsel regarding the safe transmission of the specimens is discounted both by this fact as well as by the fact that no question was put regarding tampering of the said seals this is not sufficient to secure an acquittal because there was substantial corroboratory evidence to secure the conviction of the petitioners beyond reasonable doubt."

8. In the present case, the entire property i.e. 13-kilogram hashish (charas) was sealed on the spot and sent to the chemical laboratory at Rohri, and the report of chemical analyzer indicates that the property was transited from the police station and received by the chemical analyzer on the same date, as such the continuity of the chain of safe custody is intact. We are of the view that the bearer of the property should necessarily be examined, only in cases where some visible delay in transmission and reception of the property is observable, so that it could be established that during such delay the property was remained in the safe custody of authorized person or persons to eliminate any chance of manipulation and tampering with the property. We are of the view that in the peculiar circumstances of the case when the property was sealed for chemical analysis on the spot and on the same day, it was deposited with the officer-in-charge of the nearest police station having requisite facilities and the same remained there till the date of reception of the same by the chemical laboratory, at Rohari, as such the chain of safe custody is established for which the examination of the bearer is hardly necessary. Nevertheless, in the present case prosecution witness PC Ghulam Hussain, the bearer of the narcotics, was examined (Ex-7) but the defence counsel did not cross-examine this witness in a way, which may delink the continuity of the chain of safe custody. In the instant case, the statement of recovery witnesses are in line with each other and there is no motive for false involvement of the appellant in the case when a huge quantity of narcotics was recovered, which cannot be foisted. In a case reported as Asmat Ali v. The State (2020 SCMR 1000), the Hon'ble Supreme Court has observed as: "We have examined the statements of recovery witnesses i.e. Muhammad Ali, SHO (PW-1) and Anwar Ali Head Constable/ Incharge Check Post (PW-2); they are in tune with each other with no apparent motive to hound the petitioner on a trump up charge; substantial quantity of the contraband rules out a manipulated recovery."

9. Another aspect of the case pertains to defence objection for non-production of Register No. 13 of the police station during the trial so also registration of FIR at Police Station N. Feroz while the arrest and recovery were affected by the police party of Police Station Abran. Regarding the production of Register No. 13 i.e. the register of store-room, we are of the view that the same is also least necessary in the present case. It is worth mentioning that Rule 22.16 of Police Rules, 1934 (hereinafter referred to as the Rules) provides that weapons, articles, and property in connection with criminal cases recovered in connection with an offence and/ or during the searches made in course of police investigation are to be entered in the store-room (malkhana) register. Similarly, Rule 22.18 of the Rules, instructs that the officer in charge of the police station shall make suitable arrangements for its safe custody. Now, the question of the production of the requisite register arises, when the wariness in respect of the chain of safe custody is manifested from the record, which otherwise very much established in the present case. As explained by the learned prosecutor, Police Station Abran was a newly established police station and till that time the FIR was registered at the parent police station on the administrative ground. Besides, it has already been pointed out that as mandated under section 27 of the Act, the property should be handed over to the nearest police station having requisite facilities and the records in respect of safe custody. Since such facilities are available at Police Station N. Feroz but not at Police Station Abran; therefore, it was advisable that the said police station was approached regarding lodgment of FIR and using the store-room (malkhana) for keeping the recovered narcotics in safe custody.

10. The learned counsel for the appellant has pointed out some contradictions, like the direction of approaching the appellant at the scene of offence, source of preparing memo, etc.; which in our view are trivial and did not go to the root of the case. Such/minor and insignificant contradictions are bound to come in deposition due to natural phenomena of the waning of human memory after sometimes of happening of the event. The learned counsel for the appellant, after referring a photograph, tried to make it a great point by submitting that the appellant is shown in picture under custody of the Rangers personals and since his motorbike collided with the vehicle of Rangers; therefore, he was involved in this case on the behest of Rangers personal. We are fully agree with the learned prosecutor that the production of such photograph is not sufficient to turn the table. For establishing the said photograph as genuine, the photographer and some witness who has seen the process should be examined. In the instant case neither the appellant preferred to be examined on oath nor produced any witness to establish the genuineness of the said photograph and its shooting. We are of the view that simply production of a photograph through the statement of appellant at the end of trial is not sufficient to support the defence story regarding animosity with Rangers personal and on the same account involvement of the appellant in this case.

11. In the net result of the above discussion, the present appeal preferred by appellant Murad Ali Kalhoro is devoid of merits, hence the same is dismissed, the conviction and sentence awarded by the trial Court are maintained. JK/M-211/Sindh Appeal dismissed.