2020 M L D 1390
[Balochistan]
Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ
MUHAMMAD SHARIF ---Appellant
Versus
The STATE--- Respondent
Criminal Jail Appeal No. 23 of 2019, decided on 7th October, 2019.
Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Criminal Procedure Code (V of 1898), Ss. 412 & 342--- Possession of narcotics --
-No appeal in certain cases when accused pleads guilty ---Examination of accused ---
Appreciation of evidence ---Safe custody ---Delay in sending contraband to Forensic Science
Laboratory---Non -recording of statement of sample bearer ---Scope ---Accused was
apprehended by police and during his search 1800 grams of charas was recovered---Accused
did not plead guilty to the charge and claimed trial ---Accused, during trial, voluntarily
admitted his guilt and requested for leniency--- Trial Court recorded the statement of accused
under S.342, Cr.P.C., where he once again admitted his guilt and prayed for leniency---Trial Court convicted the accused--- Conviction and sente nce of accused were recorded on the
basis of statement recorded under S.342, Cr.P.C., which was not construed as "plead guilty" --
-Admission of accused in his statement under S.342, Cr.P.C. was admission of that
incriminating material which was produced by prosecution against him ---Prosecution had
examined only one witness ---Allegedly recovered contraband was dispatched to Forensic
Science Laboratory with a delay of more than 20 days without explanation--- Statement of
sample bearer was not recorded during in vestigation ---Prosecution had failed to establish the
safe custody of the alleged contraband ---Appeal was allowed and the impugned judgment was
set aside, in circumstances.
Abdul Ghani v. State 2019 SCMR 608 rel.
Abdul Latif, Additional Prosecutor Gener al for the State.
Date of hearing: 24th September, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J. ---This Criminal Jail Appeal is directed against the
order dated 03.08.2019 (impugned judgment) passed by the Special Judge, Control of Narcotic Substances Lasbela at Hub (trial Court), whereby the appellant was convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997 ("the Act") and sentenced to
suffer Rigorous Imprisonment (RI) for two years with fine of Rs.20,000/ - (Rupees twenty
thousand), in default whereof, further directed to undergo SI for fifteen (15) days Simple
Imprisonment (S I) with benefit of Section 382- B of Criminal Procedure Code, ("Cr.P.C").
2. Brief facts leading to file the instant appeal is that on 28.11.2018 at 13:10 p.m, the
complainant Sikandar Shair Muhammad along with other police official during course of patroll ing when reached at Zehri Street Hub, where they found the appellant in suspicious
condition. He was apprehended and during his personal search 1800 grams Charas was recovered from him. The recovered charas were taken into possession through vide recovery memos. Consequent to above, FIR No.418 of 2018 was lodged with Police Station Hub City.
3. After completion of investigation the challan was submitted before the trial court,
whereby charge was framed and read over to the appellant to which he did not plea d guilty
and claimed trial. Thereafter the prosecution led its evidence to substantiate the charge. During the trial when the prosecution produced PW -1 and fixed the case for further evidence,
meanwhile the appellant voluntarily admitted his guilt and requested for leniency. The trial court served notice under Sections 243/ 265- E, Cr.P.C. upon the appellant and thereafter his
statement under section 342, Cr.P.C. was also recorded, where he once again admitted his guilt and prayed for leniency. As such the t rial court convicted and sentenced the appellant in
the aforementioned terms. Hence this appeal.
4. We have heard learned APG and have perused the available record. The record
transpires that the after arrest of the appellant charge was framed and read over to him, to which he pleaded not guilty and claimed trial, where after the statement of PW -PW-1 was
recorded. Meanwhile statement of appellant under Section 342, Cr.P.C. was recorded and
thereafter he was convicted and sentenced. Although under Section 412, Cr.P.C. appeal against the conviction and sentence awarded on the basis of plead guilty is not competent, but the appellant can challenge the sentence on the basis of illegality. It is pertinent to mention here that the appellant did not plead guilty ra ther the conviction and sentence was
recorded on the basis of statement under Section 342, Cr.P.C. which is not construed plead guilty. Admission of accused in his statement under Section 342, Cr.P.C. is admission of that incriminating material which were produced by the prosecution against him during the trial,
but in the instant case except statement of PW -1 no other prosecution witness was examined
by the trial court. Record further transpires that the allegedly recovered contraband was dispatched to the FSL on 12.09.2018 while the FIR was registered on 20th August, 2018 i.e.
with delay of more than 20 days without any explanation. The prosecution has submitted challan of the case which reveals that the statement of the official who had taken the sample to the FSL was not recorded. The prosecution has failed to establish the safe custody of the
alleged contraband. In this regard the Hon' able Supreme Court of Pakistan on the case of Abdul Ghani v. State 2019 SCMR 608, has held as under:
"2. There is hardl y any occasion for discussing the merits of the case against the
appellants because the record of the case shows that safe custody of the recovered substance as well as safe transmission of samples of the recovered substance to the office of the Chemical E xaminer had not been established by the prosecution in this
case. Nisar Ahmed, S.I/SHO complainant (PWJ) had stated before the trial court that he had deposited the recovered substance at the Malkhana of the local Police Station
but admittedly the Moharrir of the said Police Station had not been produced before
the trial court to depose about safe custody of the recovered substance. It is also not
denied that Ali Sher, H.C. who had delivered the samples of the recovered substance at the office of the Chemic al Examiner had also not been produced during the trial so
as to confirm safe transmission of the samples of the recovered substance. It has
already been clarified by this Court in the cases of The State through Regional
Director ANF v. Imam Bakhsh and oth ers (2018 SCMR 2039), Ikramullah and others
v. The State (2015 SCMR 1002) and Amjad Ali v The State (2012 SCMR 577) that in
a case where safe custody of the recovered substance or safe transmission of samples of the recovered substance is not proved by the prosecution through independent
evidence there it cannot be concluded that the prosecution had succeeded in establishing its case against the appellants beyond reasonable doubt. The case in hand suffers from the same legal defects. This appeal is, therefo re, allowed, the convictions
and sentences of the appellants recorded and upheld by the courts below are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not require d to be detained in connection
with any other case. "
For the foregoing reasons, we are of the considered opinion that the safe custody, as
well as safe transmission of the alleged seized drug was not established, as such, the instant appeal is allowed an d the impugned judgment dated 03.08.2019 passed by the Special Judge
Control of Narcotic Substances, Lasbela at Hub is set aside. Consequently, the appellant/accused namely Muhammad Sharif son of Punhal Khan is acquitted of the charge. He is in judicial cu stody. He be released forthwith if not required in any other case.
SA/121/Bal. Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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