KHADIM HUSSAIN TUNIO, J.---Through captioned criminal appeal, the appellant has challenged the judgment dated 14.07.2021 (impugned judgment) passed by VIII Additional Sessions Judge/ MCTC Karachi in Special Case No. 740 of 2020, outcome of FIR bearing Crime No. 389/2020 registered with Police Station Saeedabad for the offence punishable under sections 6/9(c) of the Control of Narcotic Substances Act, 1997 (CNSA, 1997). Through the impugned judgment, the appellant was sentenced to suffer rigorous imprisonment for ten years with fine of Rs.40,000/- in default whereof to suffer 6 months more, although benefit of section 382(b) was extended to him.
2. Brief facts of the prosecution case are that on 14.08.2020, during patrolling, complainant SIP Arz Muhammad spotted a suspicious person at the Bus Terminal in Reval Colony with a black coloured bag in his hand. He was apprehended on the basis of this suspicion and, when inquired, disclosed his name as Muhammad Arif. His bag was taken into custody and searched wherein police found ten packets of opium and four packets of charas which were weighed; ten packets of opium on a digital scale came up to 9800 grams while the four packets of charas came up to 5000 grams. The case property was sealed and brought back to the police station along with the appellant.
3. Once the investigation concluded, a challan was submitted against the appellant and then a formal charge was framed against him by the trial Court to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution examined in all three witnesses namely PW-1 complainant SIP Arz Muhammad, PW-2 PC Mehar Ali Shah and PW-3 Abdul Ghaffar. They produced various documents in their evidence which were duly exhibited. Statement of accused under section 342, Cr.P.C. was recorded wherein he denied the allegations levelled against him and pleaded his innocence while claiming that he was arrested from Balochistan by Rangers and then falsely implicated for which he produced an application filed by his father on 10.12.2020 of his sop's disappearance four days prior to his arrest at Ex. 7/A. However, hp chose not to examine himself on oath. Then, after hearing the parties and considering the material available before it, learned trial Court passed the impugned judgment and sentenced the appellant as stated supra.
4. Learned counsel for the appellant has argued that no one from the public was made a witness to any of the proceedings of the case; that the place of incident is a thickly populated area; that roznamcha entry regarding departure of the police party has not been mentioned in the memo or the FIR; that there are many contradictions with respect to depositing the recovered case property in the malkhana; that safe custody of the allegedly recovered narcotics has not been established; that no case of like nature is pending against the appellant and he has a clean criminal history; that the correct description of the bag allegedly recovered from the appellant has not been noted in the memo of arrest and recovery. In support of his contentions, learned counsel for the appellant cited the case law reported as Mujeeb-ur-Rehman v. The State (2022 PCr.LJ Note 20), Sameer v.
The State (2018 PCr.LJ Note 128), Samano Kanrani v. The State (2020 ML D 486), Arshad Mahmood Khan v. The State (2017 PCr.LJ 668), Mst. Sakina Ramzan v. The State 2001 SCMR 451), Muhammad Imran v. The State (2011 SCMR 1954) and Muhammad Shahruh and others v. The State (2021 PCr.LJ 1826).
5. On the other hand, learned Additional Prosecutor General supported the impugned judgment while contending that minor omissions can be ignored while deciding the instant appeal; that no enmity or has been proved by the appellant against the police witnesses; and that a huge quantity of narcotics was recovered from the bag which was in the appellant's possession. In support of his contentions, learned Additional Prosecutor General cited the case law reported as Tariq Mehmood v. The State (PLD 2009 SC 39), Salah-ud-Din v. The State (2010 SCMR 962), The State/ANF v.
Muhammad Arshad (2017 SCMR 283), Mushtaq Ahmed v. The State and another (2020 SCMR 474) and Sarfaraz Ahmed v. The State (2021 MLD 599).
6. We have heard the arguments advanced by the learned counsel for the appellant as well as learned Additional Prosecutor General and have gone through the entire evidence available on record with their assistance.
7. Upon perusing the record, it is evident that the appellant was arrested on 14.08.2020 from the Bus Terminal near Hub River. According to the prosecution, he had a black bag in his hand, however the same bag finds no further description neither in the memo of arrest and recovery, nor in the FIR.
Further description of the same however came forth in the deposition of PW-1 SIP Arz Muhammad who, while being cross-examined, admitted that the bag was in fact of navy blue colour and had "Old is Gold" inscribed on it. As per the prosecution case, the bag contained 10 packets of opium which were weighed and found to be 9.8 kilograms while 4 packets of charas were also found within the bag which were weighed and found to be 5 kilograms. These packets, so recovered, do not find any description as to the nature or content of the outer coverage of the same; whether they were wrapped in plastic, paper or cloth. These omissions strike at the core of the prosecution case as the same would have otherwise helped establish that the case property available in Court is in fact the same. The departure entry through which the complainant had left along with his subordinates to patrol also finds no mention in the FIR, in the memo of arrest A and recovery, in the memo of site inspection and not even in the 161, Cr.P C. statement of the witnesss. PW-1 SIP Arz Muhammad deposed that PW-2 PC Mehar Ali had also signed over the sealed parcels, however the same signatures were missing as was admitted by PW-2 PC Mehar Ali during his deposition. As per prosecution witnesses, the whole case property was sealed on the spot and brought back to the police station where, as per the deposition of PW-1 SIP Arz Muhammad, he "kept the case property in safe custody." He then admitted that such entries for recovered case properties were kept in Register No. 19 and that he recorded the same, but did not produce it before the Court.
Contradicting him, however, PW-3 SIP Abdul Ghaffar who was the investigation officer, deposed that "I received FIR number 389/2020 under sections 6/9-C of CNS Act, accused and case property for investigation." He also deposed that "1 did not make an entry of case property in Register No. 19 nor did 1 confirm from the Head Mohrar regarding keeping the entry in Register No. 19." He, too, admitted to not producing the entry from Register No. 19. Per his deposition, he received the case property whereas the complainant of the case SIP Arz Muhammad deposed that he had kept the same in safe custody. Both these prosecution witnesses have contradicted each other on a crucial aspect of the case and due to their failure by not producing the entry from register. No. 19 nor examining the in-charge of said malkhana/Head Muharar, it cannot be ascertained whether case property was even kept safe during the intervening period in which it was not sent to the chemical examiner. Safe custody from recovery to dispatch to the chemical examiner could not be proven especially when the same was delayed by two whole days i.e. 17.08.2020 without the possibility of tampering. In failing to disprove the possibility of tampering and establishing safe custody, recovery of the narcotics could not be used against the appellant despite there being a positive chemical examiner's report as held by the Hon'ble Apex Court in the case of Mst. Sakina Ramzan v.
The State (2021 SCMR 451) where the Court observed that:- "...chain of custody must be safe and secure. This is because, the Report of the Chemical Examiner enjoys critical importance under CNSA and the chain of custody ensures, that correct representative samples reach the office of the Chemical Examiner. 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 makes the Report of the Chemical Examiner unsafe and unreliable for justifying conviction of the accused. The prosecution, therefore, has to establish that the chain of custody has been unbroken and is safe, secure and indisputable in order to be able to place reliance on the Report of the Chemical Examiner.
The facts of the present case reveal that the chain of custody has been compromised and is no more safe and secure, therefore, 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 we allow this appeal and set aside the conviction and sentence of the appellant. The appellant is directed to be released forthwith, if not required in any other case."
(underlined for emphasis)
8. When the body of the crime, corpus delicti, ceases to hold any relevance the charge in itself fails.
Coupled with the defence plea raised by the appellant that he was picked up by Rangers from Balochistan and then falsely involved and given the application of the appellant's father Muhammad Ayub directed towards the SHO (Tehsildar) of Police Station Qilla Abdullah, the place of residence of the appellant, for the disappearance of his son. The prosecution has failed to prove the charge against the appellant beyond reasonable shadow of doubt. The whole incident in itself appears to be doubtful, from PW-1 SIP Arz Muhammad deposing that he had tried to gather private witnesses as many were available in the surrounding area to then being contradicted by PW-2 PC Mehar All deposing that no one was available around the appellant at the time of his arrest and that SIP Arz Muhammad did not try and get any private witnesses and then the doubtful recovery which was not even kept in safe custody for it to be used against the appellant. Despite these glaring inconsistencies in the investigation, learned trial Court chose to convict the appellant which, the judgment, cannot sustain. The principle of benefit of doubt needs little mention which has time and again been reiterated by the Hon'ble Apex Court such as in the cases of Faizan Ali v.
The State (2019 SCMR 1649) and Kamran Shah v. The State (2019 SCMR 1217). The Hon'ble Apex Court in the case of Tariq Pervez v. The State (1995 SCMR 1345) has also observed that even if there is a single infirmity in the prosecution case creating sufficient doubt, the benefit of the same would go to the appellant.
9. Given the above observations, the appeal is allowed, the judgment impugned herein is set aside and appellant is acquitted of the charge levelled against him while extending him the benefit of doubt. He shall be released forthwith if not required in any other custody case.