Muhammad Noor Meskanzai, CJ--This appeal has been directed against the judgment dated 17.04.2019 passed by the Civil Judge/Judicial Magistrate-III, Sehwan at Thano Bula Khan, whereby the appellants Muhammad Zubair son of Maroof Pathan and Rashid Ali Son of Ramzan Buledi were found guilty and sentenced as under:-- "For what has been discussed above I am of the opinion that the accused Muhammad Zubair Ahmed s/o Maroof Pathan and Rashid Ali s/o Ramzan Buledi are proved to be guilty of the offence u/s 3/4 PEHO, so they are convicted under Section 245(ii), Cr.C.P. and sentenced for 3 years simple imprisonment also with fine of Rs. 5000/- (five thousands) each. In case of default of payment of fine amount they would have to undergo for five days additional imprisonment. The benefit of Section 382-B, Cr.P.C. is also extended to them. Both accused are present on bail, be taken into custody and remanded to Central Prison Hyderabad for sentence, accused are present on bail, their bail bonds stand cancelled and surety hereby discharged, accordingly . The case against absconding accused namely Shahid Amjad s/o Muhammad Lahayaya is kept on dormant file till his arrest."
2. It is pertinent to mention here that initially the learned trial Court after concluding the trial passed judgment dated 28.08.2018, which was assailed by the appellants before this Court through Cr. Appeal No. 45/K of 2018 and Vide judgment dated 29.01.2019 of this Court , the said judgment dated 28.08.2018 was set aside and the case was remanded back to the learned trial Court with direction to re-record statement of appellants under Section 342, Cr.P.C, confronting them with the Report of Chemical Examiner for explanation and then decide the case afresh in accordance with law. Hence, in compliance of the direction contained in judgment dated 29.01.2019 of this Court, the learned trial Court after re-recording the statements of the accused under Section 342, Cr.P.C. passed the judgment dated 17.04.2019 which is impugned in the instant appeal.
3. Precisely the facts leading to this appeal are that on 02.12.2017 ASI Ghulam Qadir Dayo alongwith HC Manzoor Ali, PC Rajab Ali PC Mushtaq Ali and driver PC Muhammad paryal were on patrolling in official vehicle bearing Registration No.SPC-998. During snap checking at Usman Jakhro Stop a vehicle bearing Registration No. JY-5530 coming from Karachi. The driver of the said vehicle was signaled to stop but he speeded up the vehicle. The police chased the said vehicle and ultimately stopped the vehicle. On search of vehicle the police found 27 sacks of hemp/bhang. Some quantity of recovered hemp/bhang was separated for chemical examination. On inquiry , the accused disclosed their names as Muhammad Zubair son of Maroof Pathan and Rashid Ali Son of Ramzan Buledi.
On their body search, Rs. 480/- were recovered from accused Muhammad Zubair and Rs.230/- were recovered from accused Rashid Ali. Both the accused were taken into custody and memo of arrest and recovery memo. were prepared. The police took the accused alongwith vehicle and hemp/bhang to the police station Loonikot where FIR No.9/2017 dated 02.12.2017 was registered against the accused under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order , 1979. After completion of usual investigation, the LO submitted challan before the trial Court.
4. Charge was framed against the accused on 14.04.2018 under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order , 1979. The accused did not plead guilty and claimed trial.
5. At the trial, the prosecution examined two witnesses to prove its case. PW. 1 ASI Ghulam Qadir Dayo stated that he was heading the patrolling party . He alongwith police party arrested the accused; recovered 27 sacks of hemp/bhang from the vehicle/Mazda bearing No.JY -5530. He conducted the inves tigation, recorded statements of the witnesses under Section 161, Cr.P.C. as well as confessional statements of the accused persons. He produced departure and arrival entries, memo of arrest, recovery memo FIR and report of Chemical Examiner as Exh. 05/A, Exh. 05/B, Exh. 05/C, Exh. 05/D and Exh. 05/E. PW.2 PC Rajab Ali was member of the patrolling party . He gave further details regarding arrest of accused persons and recovery of contraband. He stood witness/mashir of memo. of arrest and recovery memo.
6. On close of prosecution evidence, the statements of the accused were recorded under Section 342, Cr.P.C. They denied the allegations leveled against them and pleaded innocence. The same stance was taken by the accused while again examined under Section 342, Cr .P.C.
7. The learned Counsel for the appellants submitted that the prosecution has miserably failed to make out any case against the appellants and the statements of both the PWs are at variant with each other . He further submitted that dishonest investigation was conducted with the result, innocent persons were booked. He submitted that the prosecution case suffers from material defects qua safe custody and secure transmission of samples, hence, an illegality was committed which is sufficient enough to vitiate the entire proceedings. He emphasized that the alleged samples, so sent, were not produced as case property before the trial Court nor for that matter the alleged remaining commodity were sealed, therefore, the entire prosecution case is bound to collapse. He, lastly , submitted that, if his all submissions failed, then, since the appellants have served substantial portion of the sentence, therefore, the sentence already served may be treated as undergone.
8. The learned Additional Prosecutor General opposed the submissions and submitted that the prosecution has proved its case beyond reasonable doubt. The appellants were caught red-handed while in possession of huge intoxicant (i.e.hemp). The samples were taken safely to the office of Chemical Analyst and no such question was put to the PWs regarding safe custody and secure transmission. Therefore, the appeal deserves dismissal.
9. I have heard the learned Counsel for the parties and have gone. through material available on record minutely . A meaningful' appraisal of the record reveals that the contentions raised by the learned Counsel for the appellants have got sufficient force on factual as well as the legal side. The perusal of the Challan and FIR reveals that a Mazda bearing No. JY-5530 was coming towards Karachi whereas the complainan t, while recording his statement as PW.1, states that a vehicle/Mazda bearing number JY-5530 was leading from Karachi to Hyderabad whereas PW. 2 remained absolutely silent on this point, so, if the charge sheet and FIR, i.e. the exhibited documents, are believed that belie the statement of PW. .1 qua this material point or if the statement is believed that belies both the exhibited documents, with the result, either of the same does not remain believable. Secondly , according to the contents of the FIR, "Entire property was seized by police from which 5 Kg Bluing was sealed and brought for chemical examination and such memo. of arrest and recovery was prepared timely" whereas in the statement, PW.1 states that "Then we separated some of the recovered property from every sack and sent it for chemical examination ." In the statement before the Court, the quantity of the samples does not find mention. Moreover , the person, who produced the samples before the Chemical Examiner , is not mentioned nor the time and date have been mentioned. The report of Chemical Examiner reveals that the samples were delivered by one PC-Zulfiqar on 06.12.2017, meaning thereby the custody of the contraband item from 02.12.2017 to 06.12.2017 remained with police either at its malkhana or with PC-Zulfiqar or someone else and nothing is .proven. Similarly , Zulfiqar was neither mentioned in the statements of PWs as a person who delivered the samples to Chemical Analyst nor he was produced before the Court to satisfy the legal requirements regarding safe custody and secure transmission of the samples. Unlike CNS Act, the Prohibition (Enforcement of Hadd) Order , 1979 and rules framed thereunder , neither provide for protocol or particular duration for sending the samples to testing laboratories within a particular period, yet Rule 6 of The Sindh Prohibition Rules, 1979 provides for safe custody and secure transmission. For the sake of convenience Rule 6 is reproduced as under:-- " An Officer incharge of a Police Station shall take charge of and keep in safe custody , pending the orders of Magistrate or a prohibition Officer all articles seized under the Order , which may be delivered to him, and shall allow the Prohibition Officer to affix his seal to such articles and to take samples therefrom."
10. In the given circumstances of the case, I have no doubt in my mind that Rule 6 has been violated and the law prove safe custody and establish secure transmission of samples to the office of the Chemical Examiner . By holding the view I am fortified by the dictum laid down by the Hon'ble Apex Court in the following judgments:-- " Although the prosecution sought to corroborate the testimony of P.W.2 and P.W.3 with the report of the forensic Science Laboratory to the effect that the contraband item recovered from the secret cavities was char as yet the sanctity of the said report (Exh.PK) was eroded when P.W.3 Manir Khan in cross-examination could not correctly reply as to where the samples remained between the dates those were allegedly taken into possession from the car and the date those were received by the Forensic Science Laboratory i.e. 26-5-2006 to 3-6-2006. He even could not tell the date as to when the samples were sent for examination and which official had taken the sample to the Laboratory Admittedly the case prope rty, the stepney of the car was never produced during trial to verify as to whether it could contain such a huge quantity of the narcotics in question. 2015 SCMR 1002 titled Ikramullah & others vs. The State " It is not disputed that the investigating Officer appearing before the learned trial Court had failed to even to mention the name the police official who had taken the samples to the office of the Chemical Examiner and admittedly no such police depose about safe custody of the samples entrusted to him for being deposited in the office of the Chemical Examiner . In this view of the matter the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of the Chemical Examiner without the same being tampered with or replaced while in transit."
2018 SCMR 2039 titled The State vs Imam Bakhsh & others "The chain of custody begins with the recovery of the seized drug by the Police and includes the separation of the representative sample(s) of the seized drug and their dispatch to the Narcotics Testing Laboratory . This chain of custody is pivotal, as the entire construct of the Act and the Rules rests on the Report of the Government Analyst, which in turn rests on the process of sampling and its safe and secure custody and transmission to the laboratory .
The prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample(s) and will impair and vitiate the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction. "
11. The prosecution has not been able to prove safe custody and secure transmission of samples to the office of Chemical Examiner . Besides, neither the charge nor the evidence shows that who was the 1 driver and who was cleaner or the passenger because the role of the driver always remains distinguishable from the role of cleaner or the passenger qua actual and conscious possession of any contraband item. This fact was intentionally concealed by the police and another defect that can be detected in the investigation is that the Investigating Officer did not try to ascertain the owner of the vehicle, with the result, one Irfan son of Muhammad Saleem filed an application under Section 561-A, Cr .P.C and the vehicle was delivered to the applicant on superdari-nama.
12. In the light of above discussion and on the strength of judgments referred to hereinabove, I am clear in my mind, that the prosecution has absolutely failed to make out any case against the appellants, with the result, the appeal is accepted, judgment dated 17.04.2019 is set aside and both the appellants are acquitted of the charge.
They shall be released forthwith if not required in any other case or of fence.