ZULFIQAR ALI SANGI, J. Appellants were tried by learned VIII, Additional Sessions Judge/MCTC Karachi West in Sessions Case No.710/2020 bearing Crime No.452/2020 under section 6,9(c) CNS Act, 1997 of P.S. SITE, Karachi and were was convicted under section 9(c) of CNS Act and sentenced to suffer life imprisonment with fine of Rs.100,000/- (One Lac), in default to suffer imprisonment for six months more with benefit under section 382-13, Cr.P.C vide judgment dated 04.08.2021. By means of this appeal the appellants have impugned their conviction and sentence.
2. The brief facts of the case as per FIR are that on 21.09.2020 complainant ASI Muhammad Aziz of PS SITE-A left PS along with PC Shafiq, PC Naseeb and DPC Kazim for patrolling in police mobile.
During patrolling from-different places when they reached at Post Office chowrangi Estate Avenue SITE Karachi at 0400 hours he saw that one rikshaw was coming from Siemens chowrangi in suspicious condition. He tactfully got stopped the rikshaw. On inquiry the driver disclosed his name as Muhammad Rahim son of Nasrullah. He also saw that two persons were sitting on the back seat of rikshaw. On inquiry one person disclosed his name as Zahir Shah son of Abdul Salam and second person disclosed his name as Ajmal Khan Kakar son of Faizullah. Due to non-availability of private persons he made personal search of persons who were sitting in rikshaw number D- 1306548 in presence of police mushirs namely PC Shafiq and PC Naseeb and recovered one plastic bag lying in lap of accused Zahir Shah on which words "Urea 46" was written and on checking the same he recovered 16 packets of chars weighing 20 kilo 500 grams. On his further personal search he recovered Rs.950/- and one mobile phone from his possession. On personal search of accused Ajmal he recovered one plastic bag lying in his lap and on checking the same he recovered 11 packets of chars weighing 14 kilo 100 grams. On his further personal search he also recovered Rs.1000/- and two mobile phones from his possession. On personal search of accused Muhammad Rahim son of Nasrullah he recovered one plastic bag on which "Darwesh Abbas Floor Mill" was written lying near the driving seat and on opening the same he recovered 10 packets of chars weighing 12 kilo 500 grams. On his further personal search he also recovered Rs. 1200/- and two mobile phones from his possession. Then he sealed the case property and prepared the memo of arrest and recovery on the spot. He brought the accused and case property at PS and lodged the FIR against them.
3. After the usual investigation the challan was submitted before the court having jurisdiction and after completing the codal formalities the charge against the appellants was framed to which they pleaded not guilty and claimed trial.
4. At the trial, the prosecution examined three witnesses to prove the case against the appellants which are P.W-1 complainant ASI Muhammad Aziz Khan at Ex.3, P.W.2 PC Muhammad Shafiq, mashir of arrest and recovery at Ex.4 and P.W.3 SIP/I.O. Aamir Ghayas at Ex.6, who produced various documents i.e. FIR, mashirnama of arrest and recovery, report of chemical examiner etc. and then prosecution closed its Side.
5. The appellant's statements under section 342, Cr.P.C were recorded wherein they denied prosecution allegations and pleaded their innocence. They, however, neither examined themselves on oath nor led any evidence in their defence. After the trial, the learned trial Court after hearing the parties convicted and sentenced the appellants through impugned judgment as stated above.
Hence the appellants have filed appeals against their convictions and sentences.
6. Learned counsel for the appellants mainly argued that the appellants are innocent and have been falsely implicated in this case; that the alleged recovery of contraband charas was effected from Rickshaw and the said Rickshaw was not produced before the trial court; that the incharge malkhana of the police station with whom the contraband material was kept for safe custody was not examined; that no entry of depositing of charas in malkhana or sending it to the Chemical examiner was produced before the trial court; that prosecution also did not produce departure and arrival entries of the police party which creates very serious doubt in the prosecution story; that safe custody of alleged charas was not proved before the trial court; that there are major contradictions in the evidence of P.Ws; that prosecution had failed to prove the charge against the appellants beyond a shadow of reasonable doubt, hence they prayed for setting aside the impugned judgment and acquittal of the appellants. Learned counsel relied upon the cases of Subhanullah v. The State (2022 SCMR 1052), Muhammad Shoaib and another v. The Stare (2022 SCMR 1006), Zafar Khan and another v. The State (2022 SCMR 864), Abdul Ghafoor v. The State and another (2022 SCMR 8191), Zubair Khan v. The State (2021 SCMR 492), Sakina Ramzan v. The State (2021 SCMR 451), Gulzar v. The State (2021 SCMR 380), Qaiser Khan v. The State (2021 SCMR 363), Akhter Meen v. The Stare (PLD 2022 Sindh 84), Ahsan Marfani v. The State (2022 YLR Note 5). Tarique alias Kaloo v. The State (2020 MLD 1883), Muhammad Khurram v. The State (2022 PCr.L.J 929) and unreported judgments passed by this court in Cr. Appeal No.684/2021, Cr. Appeal No.D170/2010, Cr. Appeal No.D-87 of 2020, Cr. Appeal No.551/2021, Cr. Appeal No.193/2020, Cr. Appeal No.219/2020.
7. On the other hand, learned Addl. P.G has contended that the prosecution has successfully proved its case by examining the PWs who have no enmity with the appellants; that the appellants were caught red handed on the spot when a huge quantity of narcotics was recovered from them under mashirnama of arrest and recovery that all the P.Ws have supported the prosecution case, therefore, conviction and sentence awarded by the trial court requires no interference by this court.
He has relied upon the case of Syed Mehroz Mehdi Zaidi v. The State (2020 PCr.LJ 1609) and Ghulam Shabir alias Papi v. The State (2020 MLD 1417)
8. We have heard learned counsel for the appellants as well as learned Addl. P.G and perused the material available on record with their able assistance.
9. We have considered the evidence of the prosecution witnesses with the assistance of learned counsel for the appellant and the learned prosecutor and found major contradictions in their evidence and some of the same are as follows:-
(a) As per the memo of arrest and the recovery total of 04 mobile phones were recovered from all three accused persons and at the time of evidence PW-1 deposed about the recovery of 05 mobile phones from their possession and PW-2 deposed about 04 mobile phones, however PW-3 the investigation officer during his cross-examination stated that he received 03 mobile phones which were recovered from the accused persons.
(b) The complainant PW-1 during his cross-examination stated that he himself kept the case property in koth of P.S, however, PW-2 mashir stated during the cross-examination that ASI Aziz handed over the case property in the police station and the same was kept in the room of duty officer both the witnesses gave their contradictory evidence in respect of handing over the case property and keeping it in safe custody.
(c) The complainant PW-1 stated in his cross-examination that he himself took away the accused persons inside the P.S and locked them up and kept the case property in koth of P.S, however, PW-2 mashir stated in his cross-examination that they all police officials kept the accused in the police lockup and he took one bag from police mobile and kept the same in the room of duty officer, whereas the case of the prosecution is that the Contraband chars was sealed in three bags separately. PW-2 has not stated a single word that as to whether the other two bags were brought at the police station or not and if they were brought at the police station then again it is doubtful as to who brought those two bags from the police mobile to the police station and where the same were kept for safe custody.
(d) It is the case of the prosecution that charas was recovered from the bags in the shape of pockets but at the time of evidence the complainant PW-1 stated during the cross-examination that he weighed each packet of charas separately which reflects that each piece of charas after being taken out from the bag was weighed; however PW-2 in his cross-examination stated that ASI weighed the chars with a bag which reflects, that entire chars along with bag was weighed in one go and not each packet separately.
10. The above-noted contradictions indicate that the complainant and mashir were not the true eye-witnesses of the incident and no such incident of the arrest of the accused and recovery of charas from the possession of appellants had occurred as alleged by the prosecution. Taking notice of the contradictions in the evidence of the complainant and the mashir, we are clear in our mind that the prosecution failed to prove its case against the appellants beyond a shadow of reasonable doubt and the recovery has not been satisfactorily proved. Both the witnesses contradicted each other on material aspects of the case. No implicit reliance can be placed on their evidence in view of aforesaid contradictions on the evidence of prosecution witnesses.
11. It is observed that the mere heinousness of the charge and recovery of a huge quantity of the alleged contraband is no ground to convict the accused. The prosecution is under a bounden responsibility to drive home the charge by proving each limb of its case that essentially included the production of the witness tasked with the responsibility of keeping the narcotic in safe custody and safely transmitting the samples to the office of the Chemical Examiner. Failure to do so is fatal to the prosecution case. In the case, in hand, the property was sent to the Chemical Analyzer through a letter dated: 22-09-2020 with memorandum No. Nil from SHO PS Site A Karachi through SIP Aamir Ghiyas which shows that the property was sent by the SHO P.S Site A Karachi and he was not examined to prove that as to whether he sent the property to the chemical laboratory because in the entire case there no role of the SHO P.S Site A section either of as witness, mashir or of the investigation officer. As per the evidence of complainant PW-1 he deposited the recovered chars in the Koth at the police station and as per the evidence of PW-2 mashir the recovered chars was deposited in the room of the duty officer but the prosecution failed to examine any of them (incharge of the Koth and the duty officer) to prove the safe custody of chars. The prosecution also failed to produce the entry under which the chars was kept at the police station and the same has been admitted by the prosecution witness. Looking at the examination in chief of PW-3 the investigation officer reflects that he sent the case property for chemical examination and he did not state that he brought the property to the office of the chemical examiner. From the above- discussed evidence, it can easily be said that the prosecution has not proved the safe custody and safe transmission of the property to the chemical examiner which creates serious doubt in its case.
In this regard Honourable Supreme Court in the case of Mst. Razia Sultana v. The State and another (2019 SCMR 1300), has held as under:
2. At the very outset, we have noticed that the sample of the narcotic drugs was dispatched to the Government Analyst for chemical examination on 27.2.2006 through one Imtiaz Hussain, an officer of ANF but the said officer was not produced to prove safe transmission of the drug from the Police to the chemical examiner. The chain of custody stands compromised as a result it would be unsafe to rely on the report of the chemical examiner. This Court has held time and again that in case the chain of custody is broken, the Report of the chemical examiner loses reliability making it unsafe to support conviction. Reliance is placed on State v. Imam Bakhsh (2018 SCMR 2039).
3. For the above reasons the prosecution has failed to establish the charge against the appellant beyond reasonable doubt, hence the conviction, and sentence of the appellant is set aside and this appeal is allowed, setting the appellant at liberty unless required in any other case.
12. In another case of Zahir Shah alias Shat v. The State through Advocate General, Khyber Pakhtunkhwa (2019 SCMR 2004), Honourable Supreme Court has held as under:
2. We have reappraised the evidence with the able assistance of learned counsel for the parties and have noticed at the very outset that the Police constable, bearing No.FC-688, who delivered the sealed parcel to the Forensic Science Laboratory, Peshawar on 27.2.2013 was not produced by the prosecution. This fact has been conceded by the learned law officer appearing on behalf of the respondents. This court has repeatedly held that safe custody and safe transmission of the drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory must be satisfactorily established. This chain of custody is fundamental as the report of the Government Analyst is the main evidence for the purpose of conviction. The prosecution must establish that chain of custody was unbroken, unsuspicious, safe and secure. Any break in the chain of custody i.e., safe custody or safe transmission impairs and vitiates the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction. Reliance is placed on State v. Imam Bakhsh (2018 SCMR 2039).
13. Recently the Honourable Supreme Court of Pakistan 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 prosecution's bounded 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 member bench 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), Kaniran Shah v. The State (2019 SCMR 1217). Mst. Raja 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 (2027 SCMR 492), Gulzar v. The State (2021 SCMR 380)."
14. In the case in hand it is also alleged by the prosecution that the recovery was effected from a Rickshaw in which all three accused persons were travelling. During the trial the said Rickshaw was not produced before the court and also the investigation officer has not conducted an investigation in respect of its owner. From a careful examination of the evidence of witnesses we also do not find that the other articles allegedly recovered from the possession of the accused persons were available in the court at the time of recording evidence which includes cash amount and the mobile phones. Further, the recovery of the chars from the Rickshaw was not put to the accused persons in their statement under section 342 Cr.P.C nor it was shown to them that this was the same Rickshaw from which recovery was effected and it was only put to them that the charas was recovered from their possession which is not the case of the prosecution.
15. After the reassessm ent of material available in the file we have found that in the present case there are also a number of legal infirmities/lacunas, which have created serious doubt in the prosecution case. It is a settled principle of law that for extending the benefit of the doubt, it is not necessary that there should be multiple circumstances creating doubt. If a single circumstance, which 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 Tarig Pervez v. The State reported as (1995 SCMR 1345), wherein the Hon'ble Supreme Court 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 doubts in a prudent mind about the guilt 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".
16. Thus based on the particular facts and the circumstances of the present case and by relying on the above precedents of the apex Courts, we find that the prosecution has failed to prove the case against the appellants beyond a reasonable doubt by producing reliable, trustworthy and confidence-inspiring evidence. Therefore, we allow the instant appeal, set aside the impugned judgment dated 04-08-2021, passed by the learned VIII-Additional Sessions Judge/MCTC Karachi West in Sessions Case No.710/2020 arising from Crime No.452/2020 under sections 6,9(C) CNS Act, 1997 of P.S. SITE-A, Karachi and acquit the appellants Zahir Shah son of Abdul Salam, Ajmal Khan son of Faizullah and Muhammad Rahim son of Nasarullah from the charges by extending them the benefit of the doubt. They shall be released forthwith if not required in any other custody case.
17. The above appeal is disposed of in the above terms. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.