Mst. Sakina Ramzan vs The State

Syed Mansoor Ali Shah, J. During snap checking on 26.11.2014, Customs officers stopped a vehicle on the RCD Highway , Karachi loaded with three LCD TVs, two room heaters and one washing machine. Abdul Ghaf far was the driver of the vehicle (since acquitted) and the appellant was the only passenger in the vehicle. Upon thorough examination of the body frames of the three LCD TVs, two room heaters and one washing machine, 45 Kgs (gross) of charas was recovered hidden in the body frames of these items. This led to the registration of FIR No.150 dated 27.11.2014 against both the appellant and her co-accused for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 ("CNSA") .

2. After regular trial, the appellant was convicted under section 9(c), CNSA and sentenced to imprisonment for life and to a fine of Rupees One million and in default thereof to suffer simple imprisonment for five years, while benefit of section 382-B, Cr.P.C was also extended to the appellant. The co-accused Abdul Ghaf far was acquitted of the charge by the trial court being a taxi driver having no involvement in the matter . The appellant challenged her conviction and sentence before the Sindh High Court, where her appeal was dismissed and the conviction and sentence of the trial court was maintained. Leave was granted by this Court vide order dated 04.3.2020 for reappraisal of the entire evidence so as to ensure safe administration of criminal justice.

3. After gooing through the record of the case with the assistance of learned counse l for the parties, we noticed that according to the statement of the complainant Muhammad Younus Sabir (PW-1), SPO, Customs Preventive, he recovered the narcotic drugs from the seized items mentioned above on 26.11.2014 and prepared the memo of recovery along with the inventory (Ex-9/A & Ex-9/A-1) and deposited the same in the warehouse. Zulfiqar Ali (PW- 3), PO, Customs Preventive, stated that SO Khalid was Incharge of the warehouse, however , the said incharge was not produced by the prosecution to confirm the safe deposit and custody of the narcotic drugs after its recovery on 26.11.2014. The Report of the Director Laboratories & Chemical Examiner (Ex-1 1A/1) reveals that the narcotic drugs were received in his office on 28.11.2014 by hand through ASO Muhammad Younas Sabir . No "ASO" Muhammad Younas Sabir was produced before the court. Considering it to be SPO Muhammed Younas Sabir , wrongly mentioned as ASO in the Report, even SPO Muhammed Younas Sabir , while appearing as PW-1 never stated that he delivered the narcotic drugs, by-hand, in the office the Director Laboratories & Chemical Examiner . Infact he stated that: "we had sent 43 samples sent (sic) for chemical examiner with the letter of superintendent of customs."

The letter of the Superintendent Preventi ve Service dated 27-11-2014 (Ex 9/B) written to the Chemical Examiner states that 43 sealed samples are being forwarded to the chemical examiner . The author of this letter i.e., Superintendent Preventive Service was not produced as a witness. In the absence of the statement of the warehouse in-charge and Muhammed Younas Sabir (PW-1) regarding the delivery of the representative samples of the narcotic drugs to the office of the chemical examiner , it is uncertain whether the narcotic drugs and the representative samples were deposited in the warehouse by PW-1; who collected the representative samples from the incharge of the wharehouse for onward delivery to the Chemical Examiner; and who actually delivered the narcotic drugs at the of fice of the chemical examiner .

The chain of custody is the most critical process of evidence documentation. It is a must to assure the court of law that the evidence is authentic, i.e., it is the same evidence seized at the crime scene. That it was, at all times, in the custody of a person designated to handle it and it was never unaccounted. The continuity of possession of evidence or custody of evidence and its movement and location from the point of discovery and recovery (at the scene of a crime or from a person), to its transport to the laboratory for examination and until the time it is allowed and admitted in the court, is known as the chain of custody . The goal is to establish that the evidence is related to the alleged crime, was collected from the scene, and was in its original/unaltered condition rather than having been tampered with or "planted" deceitfully to make someone seem guilty . The chain of custody maintains the integrity of the sample. The traceability of the record of the control, transfer , and analysis of samples indicates the transparency to the procedure.

The chain of custody which includes safe custody and safe transmission of the narcotic drug begins with seizure of the narcotic drug by the law enforcement officer, followed by separation of the representative samples of the seized narcotic drug, storage of the representative samples and the narcotic drug with the law enforcement agency and the subsequent dispatch of the represent ative samples of the narcotic drug to the office of the Chemical Examiner or Government Analyst for examination and testing. This chain of custody must be transparent, uncompromised, recorded, safe, secure and unbroken. The chain of custody assumes critical importance under CNSA because, the Report of the Chemical Examiner can be the sole basis of conviction of the accus ed. Therefore, it is important to ensure that the integrity of the chain of custody was intact and the actually seized narcotic drug or its representative samples have reached the office of the Chemical Examiner or Government Analyst for testing and examination. As a corollary , any break or gap in the chain of custody i.e., in the safe custody or safe transmission of the narcotic drug or its representative samples renders the Report of the Chemical Examiner unsafe and unreliable to support conviction. The prosecution, before placing reliance on the Report of the Chemical Examiner or the Government Analyst, must first establish that the chain of custody is safe, secure and unbroken. In case the prosecution fails to do so, the Report of the Chemical Examiner or the Government Analyst loses its reliability .

In the present case it has not been established where the recovered and seized narcotic drugs and its samples were deposited and stored on 26.11.2014; who took possession of the narcotic drugs from PW-1 at the warehouse; who collected them from the warehouse incharge and delivered them by-hand to the Chemical Examiner on 28.11.2014. The entire chain of custody stands compromised, as a consequence, reliance cannot be placed on the Report of the Chemical Examiner to support conviction of the appellant. See Imam Bakhsh and Ikramullah . For the above reasons, extending the bene fit of doubt to the appellant, we allow this appeal and set aside the conviction and sentence of the appellant - Mst. Sakina Ramzan. The appellant is directed to be released forthwith, if now required in any other case.

5. Foregoing are the reasons for the short order dated 06.1.2021, which is reproduced hereunder for convenience:-1 2 "For reasons to be recorded later, the instant criminal appeal is allowed. The conviction and sentence of appellant Mst. Sakina Ramzan is set aside. She is acquitted of the charge framed against her. She is behind the bars and is ordered to be released forthwith, if not required to be detained in any other case."

6. Before parting with the judgment we wish to place our appreciation on the record for the pro Bono legal assistance rendered by Mr. Hassan Mahmood Mandivala, Advocate in representing the appellant on behalf of the Legal Aid Committee for the W elfare of the Prisoners. 2018 SCMR 2039 2015 SCMR 1002