ZULFIQAR ALI SANGI, J. Appellant Muhammad Aslam has assailed judgment dated 05.04.2021 passed by learned Additional Sessions Judge VII (MCTC) Karachi Central in Sessions Case No.469 of 2020 bearing FIR No.133 of 2020 for offence under section 6/9-C of Control of Narcotic Substances Act, 1997, registered at PS F.B. Industrial Area, Karachi where he was convicted and sentenced to suffer Life Imprisonment with fine of Rs.100,000/- (One Lac Rupees Only) and in default to further undergo one-year Imprisonment with the benefit of Section 382-B Cr.P.C.
2. Accusation against the appellant is that on 16.06.2020 at 0100 hours he was arrested from Taxi Stand, near 7-D Bus stop situated at the main road, Shahrah-e-Pakistan, Block-21, F.D. Area, Karachi by complainant ASI Ali Haider Pitafi of P.S F.B.I. Area and recovered 25 kgs charas from him and after recovery and arrest said FIR was registered at Police Station F.B. Industrial Area, Karachi.
3. After usual investigation the charge sheet against the appellant was submitted before the court having jurisdiction. After completing the legal formalities which include supplying the documents to the appellant the charge was framed against him to which he pleaded not guilty and claimed trial. At the trial, the prosecution examined five (05) witnesses including the complainant, mashir of arrest and recovery, Investigating Officer Chemical Examiner etc., who exhibited various documents and other items to prove the case of the prosecution.
4. The statement under section 342 Cr.P.C of the appellant was recorded in his statement under section 342 Cr.P.C the appellant denied the prosecution allegations and pleaded his innocence. He did not examine himself on oath, however, examined D.Ws Muhammad Khan and Ellahi Bux in his defence to disprove the case of the prosecution. After the trial, the learned trial Court convicted and sentenced the appellant through impugned judgment as stated above.
5. Learned counsel for the appellant mainly contended that the appellant is innocent and has been falsely implicated in this case; that the prosecution has failed to prove the charge against the appellant beyond the shadow of reasonable doubt; that ASI was not empowered to seize and search under CNS Act; that the P.Ws did not describe bags allegedly recovered from the appellant; that there are contradictions between the P.Ws regarding the occurrence and description of alleged narcotics etc but same were not considered by the trial court; that there is no evidence of safe custody of recovered charas from the time of its recovery up to the arrival of samples to the Chemical Examiner; that defence plea taken by the appellant was also corroborated by the D. Ws.
He has prayed for setting aside the impugned judgment and acquittal of the appellant by extending him the benefit of the doubt. In support of his arguments, learned counsel has relied upon cases of Qaiser v. The State (2022 SCMR 1641), Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs, Zubair Khan v. The State (2021 SCMR 492) and The State through Regional Director ANF v. Imam Bukhsh and others (2018 SCMR 2039),
6. On the other hand, learned Addl. P.G. has supported the impugned judgment and contended that the prosecution has successfully proved its case by examining the P.Ws, who have no enmity with the appellant; that there ate eye-witnesses who deposed that in their presence the appellant was arrested and caught red handed with 25 Kgs. Charas which was recovered from him; that there are no major contradiction between the evidence of the complainant and P.Ws has been pointed out and as such the impugned judgment does not call for any interference by this court since the prosecution had proved its case against the appellant beyond a reasonable doubt. He prayed for the dismissal of the appeal.
7. We have heard learned counsel for the appellant and learned Addl. P.G. and examined the record with their assistance.
8. The case of the prosecution is that on the day of the incident the complainant along with his staff was in search of the absconding accused during which when he reached the place of the incident one person holding bags in both hands was standing whom he arrested and recovered 25 Kgs of charas under mashirnama of arrest and recovery. However, the prosecution has not established whether both the bags allegedly recovered from the appellant were sealed separately or the same were sealed in one sack. Even if it is not clear from the mashirnama and the FIR P.Ws 1 and 2 during their evidence deposed that both the bags were sealed on spot but on a look at the Chemical Examiner report it reflects that only one bag was received at Chemical Laboratory and on its opening two bags were found. The complainant and P.W.2 Muhammad Adnan have deposed that they weighed the charas at a nearby LNG shop but said shop does not find a place in the sketch prepared by the investigation officer nor it has come on record where the said shop was situated and during the investigation, neither shopkeeper was examined by the investigation officer nor was produced before the trial court to strengthen the prosecution case. The complainant deposed that on reaching the police station he had made relevant entries in the book and thereafter registered the FIR. He deposited recovered charas in the Malkhana and subsequently, the FIR including other documents and the accused was handed over to the investigation officer. The complainant did not utter a single word that he had handed over the case property viz. charas to the investigation officer; however, the investigation officer deposed that on 16.06.2020 he received FIR and other documents, accused and case property viz. charas from the complainant. He has not stated a single word that after receipt of charas from the complainant he had deposited it in the Malkhana. He again stated that after taking property from Malkhana he had deposited it with the Chemical examiner. If we believe the evidence of the complainant then the investigation officer is telling a lie in respect of receiving the case property viz the charas or vice versa.
9. The investigation officer in his cross-examination deposed that on 17.06.2020 he collected case property i.e. charas from head Moharar at the police station under entry No.5 at 0900 hours but he has not examined the Head Moharar nor the said Head Moharar was produced before the trial court to prove the safe custody of Charas. Even the prosecution has failed to establish that at the relevant time who was the incharge of the Malkhana. It is the prime duty of the prosecution to ensure safe custody of the recovered charas from the time of recovery till its arrival at the office of the Chemical Examiner and its failure to do so would cast doubt on and impair the reliability of the chemical report. We have scrutinized the record and find that the prosecution has not produced strong evidence to prove the safe custody of charas. Therefore, by failing to prove the safe custody of the recovered contraband A the same could not be used against the appellant in this regard and the chemical report is of no legal value. The Honourable Supreme Court in the case of Qaiser and another v. The State (2022 SCMR 1641), has observed that "In absence of establishing the safe custody and safe transmission the element of tampering cannot be excluded in this case. The chain of custody of sample parcels begins from the recovery of the narcotics by the police including the separation of representative samples of the recovered narcotics, their dispatch to the Malkhana and further dispatch to the testing laboratory. The said chain of custody and transmission was pivotal as the entire construct of the Act 1997 and the Control of Narcotic Substances (Government Analysts) Rules 2001 (Rules 2001), rests upon the report of the analyst. It is prosecutions boundend duty that such chain of custody must be safe and secure because the report of chemical examiner enjoined critical importance under the Act 1997 and the chain of custody ensure the reaching of correct representative samples to the office of chemical examiner.
Any break in the chain of custody i.e. the safe custody or safe transmission of the representative samples, makes the report of chemical examiner worthless and un-reliable for justifying conviction of the accused. Such lapse on the part of the prosecution would cast doubt and would vitiate the conclusiveness and reliability of the report of chemical examiner. Reliance can be made upon the judgments rendered by three members benches of this court i.e. Ikramulah v. The State (2015 SCMR 1002), The State v. Imam Bakhsh (2018 SCMR 2039), Abdul Ghani v. The State (2019 SCMR 608), Kamran Shah v. The State (2019 SCMR 1217), Mst. Razia Sultana v. The State (2019 SCMR 1300), Faizan Ali v. The State (2019 SCMR 1649), Zahir Shah alias Shat v. State through AG KPK (2019 SCMR 2004), Haji Nawaz v. The State (2020 SCMR 687); Qaiser Khan v. The State (2021 SCMR 363), Mst. Sakina Ramzan v. The State (2021 SCMR 451), Zubair Khan v. The State (2021 SCMR 492) and Gulzar v. The State (2021 SCMR 380)."
10. The appellant did not examine himself on oath however examined DW-1 Muhammad Khan who deposed that he had sold out GLI Corolla car Registration No. ATM-163 to the appellant and on the request of the brother of the appellant he collected a tracker report from the company which the appellant has exhibited in his statement under section 342 Cr.P.C which reflects that mostly the said vehicle was parked in the area of the police station and the said car is not the one property.
The DW also exhibited the sale agreement in respect of the car and he was not cross-examined by the DDPP for the state who only put one suggestion to this witness that the said car is not the case property. The DW-2 Ellahi Bux deposed that on 15-06-2020 appellant was arrested by the police and taken the car so also other articles from there. They do not know the whereabouts of the appellant, therefore, he requested Khan Muhammad DW-1 to collect the location of the car as the tracker was installed in the car after verification stating that the car is available at the police station FBI Area where they found the car. According to the evidence of the DW the police asked him to hand over one abductee girl who was staying at the house of the appellant to Sardar Raheem Bux Bozdar and on failure to do so the appellant will be booked in criminal cases. As per his evidence on the next day, the people of Sardar Raheem Bux Bozdar came along with the police the complainant of this case to whom they handed over the said girl however despite that the appellant was involved in this false case. It is necessary to mention here that the appellant during his statement under section 342 Cr.P.C has also exhibited certain documents including the Nikahnama and free-will affidavit in respect of the marriage of Muhammad Hassan and Mai Zeenat (the alleged abductee girl who was taking shelter at his house). The said boy and the girl so also the appellant belong to Mirpur Mathelo wherefrom the complainant also belongs and which he also admitted during his cross-examination as well as admitting that his sister is also residing in the village of the appellant and he used to visit her. If we put the defence evidence in juxtaposition with the prosecution case, we give some weight to the defence case which cannot be dismissed out of hand which creates some doubt that the appellant was falsely implicated in this case by the police.
11. It is also an established principle of law that an accused person is presumed to be innocent till the time he is proven guilty beyond a reasonable doubt and this presumption of his innocence continues until the prosecution succeeds in proving the charge against him beyond a reasonable doubt on the basis of legally admissible, confidence-inspiring, trustworthy and reliable evidence. It is well-settled law that the prosecution is bound to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is cast upon the accused to prove his innocence. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. The rule of giving the benefit of doubt to an accused person is essentially a rule of caution and prudence and is deep-rooted in our jurisprudence for the safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (Peace Be Upon Him): "Avert punishments (hudood) when there are doubts" and "Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him (faccused), let him have his wall, because the leader's mistake in pardon is better than his mistake in punishment." The Hon'ble Supreme Court has quoted probably the latter part of the last-mentioned saying of the Holy Prophet (PBUH) in the case of Ayub Masih v. State (PLD 2002 SC 1048) "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent." The same principle has also been followed by the Honourable Supreme Court of Pakistan in the recent Judgment in the case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600).
12. After our reassessm ent of the evidence produced by the prosecution as discussed above and while taking the defence plea of the appellant in juxtaposition with the prosecution case we find that the prosecution has not proved its case against the appellant beyond a reasonable doubt and for extending the benefit of the doubt there does not need to be multiple circumstances creating doubt. If a single circumstance creates reasonable doubt in a prudent mind about the guilt of the accused then the accused will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez v. The State reported as (1995 SCMR 1345), wherein the Honourable Supreme Court of Pakistan has held as under?
"The concept of benefit of doubt to an accused person is deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubt.
If there is a circumstance which creates reasonable doubt in a prudent mind about the quilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right".
13. Thus based on the particular facts and the circumstances of the present case as discussed above we allow the instant appeal, set aside the impugned judgment dated 05.04.2021 passed by the Special Court No. VII/ MCTC-II, Karachi in Special Case No.469 of 2020 arising out of FIR No.133 of 2020 for offences under section 6/9-C of Narcotic Substances Act, 1997, registered at PS FBI Area, Karachi and acquit him from all the charges. He shall be released forthwith if not required in any other custody case.
14. The above appeal is disposed of in the above terms.