2024 P Cr. L J 1531
[Balochistan (Turbat Bench)]
Before Naeem Akhtar Afghan C.J and Sardar Ahmed Haleemi, J
MUHAMMAD ALIM ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. (T)04 of 2022, decided on 5th October, 2022.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotic substance ---Appreciation of evidence ---Safe custody and
transmission of sealed parcels of the recovered contraband not proved--- Prosecution case was
that 2000- grams charas was recovered from the possession of the accused ---Perusal of the
record revealed that Police Official/witness deposed in his statement that the sealed parcels
were handed over to him on 3rd June, 2021 for onwards transmission to laboratory and he delivered the sealed parcels in S.P. office on the same day, however Forensic Science Laboratory Reports depicted that the sealed parcels were received on 7th June, 2021---Prosecution evidence was silent about the safe custody of contraband during the whole period, as such same made the custody of contraband doubtful ---Chain of safe custody had
been compromised and transmission of the sealed contraband in a safe and secured mode from the spot of recovery till its receipt by the testing laboratory had not been satisfactorily established by the prosecution---Thus, reliance could not be placed on the report of Chemical Examiner to support conviction and sentence awarded to the accused---Appeal against conviction was accordingly allowed
The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR
2039 rel.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c) ---Possession of narcotic substance ---Appreciation of evidence ---Delay of one
month and five days in recording the statement of witness ---Consequential ---Prosecution
case was that 2000 -grams charas was recovered from the possession of the accused---Perusal
of cross -examination of Police Official/witness revealed that the statement under S.161,
Cr.P.C. of said witness was recorded after delay of one month and five days, that too, without any plausible explanation, which made the prosecution case doubtful ---Appeal
against conviction was accordingly allowed.
Jadain Dashti for Appellant.
Sudheer Ahmed, Deputy P.G. for the State.
Date of hearing: 9th September, 2022.
JUDGMENT
SARDAR AHMED HALEEMI, J. ---This appeal is directed against the judgment
dated 14th January 2022 (hereinafter the "impugned judgment") passed by the learned Special Judge Control of Narcotic Substances, Mekran at Turbat (hereinafter the "trial Court"), whereby the appellant was convicted under section 9 (c) of the Control of Narcotic Substances Act, 1997 (hereinafter the "Act, 1997") and sentenced to suffer one and half (1 1/2 ) years R.I with fine of Rs. 10,000/ - and in default whereof to further undergo two
months S.I. Benefit of section 382- B, Cr.P.C. was also extended in favour of the appellant.
2. The prosecution story, in brief, is that on 3rd June 2021, at 11:15 a.m. the
complainant namely Aumir Nazir, SI registered an FIR No. 08 of 2021 under section 9(c) of
the Act, 1997 at Police Station Nasirabad District, Kech to the effect that on 3rd June, 2021,
the complainant along with other police officials were on area patrolling; they received secret information that one Muhammad Alim son of Karim Bakhsh (the appellant) while having charas going towards Sheykahn on a motorcycle; on such information, the police party made secret surveillance at Mand road near Tojan Karez; at about 10:30 a.m. a person arrived there
on a black Honda Motorcycle, who was stopped; that from his personal search, from his
neefa of Shalwar, two packets charas weighing 1000 grams each were recovered; which were
taken into possession; the appellant was arrested and the motorcycle engine No.3498578, chassis No. U184078 was also taken into possession, hence this report.
3. After usual investigation, challan under section 9(c) of the Act, 1997 was submitted
before the trial Court, wherein charge was framed against the appellant, to which he pleaded not guilty and claimed trial.
4. The prosecution examined as many as five witnesses; after completion of prosecution
evidence, the appellant was examined under section 342 Cr.P.C, wherein he denied the allegations, however, he did not examine himself on oath as envisaged under section 340(2), Cr.P.C. nor produced any witness in his defence.
5. The trial Court after hearing the parties convicted and sentenced the appellant vide
impugned judgment, hence this appeal.
6. We have heard the learned counsel for the appellant and learned Deputy Prosecutor
General and perused the record.
7. The learned counsel for the appellant contended that the statement of PW- 5 was
recorded after the delay of one month and five days, which has not been explained; that PW -
3 stated that sealed parcels were handed over to him on 3rd June 2021, whereas the parcels were handed for FSL on 7th June 2021 after the delay of three days without any explanation; that the safe custody and transmission of contrabands are doubtful; that there are contradictions in the statements of prosecution witnesses.
8. On the other hand, the learned Deputy Prosecutor General supported the impugned
judgment and contended that the appellant was arrested with contrabands; that no enmity or ill-will against the prosecution was suggested; that the prosecution witnesses corroborated
with other; lastly contended that the impugned judgment may be sustained.
9. We have carefully considered the contentions put forth by the learned counsel for the
parties and perused the record minutely. Perusal of record reveals that PW -3 deposed in his
statement that the sealed parcels were handed over to him on 3rd June 2021 for onwards transmission to laboratory; it further reveals that he delivered the sealed parcels in S.P. office on the same day, however FSL reports Ex.P/5- D and Ex.P/5 -E depict that the sealed parcels
were received on 7th June 2021. The prosecution evidence is silent about the safe custody of contrabands during the whole period, as such same makes the custody of contrabands doubtful.
10. According to the facts of the present case, it reveals that the chain of safe custody has
been compromised and transmission of the sealed contrabands in a safe and secured mode from the spot of recovery till its receipt by the testing laboratory has not been satisfactorily established by the prosecution. Thus reliance cannot be placed on the report of chemical examiner to support conviction and sentence awarded to the appellant. In this regard, reliance is placed on the case of The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039, wherein it has been held as under:
"This chain of custody, is pivotal, as the entire construct of the Act and the Rules rests on the Report of the Government Analyst, which in turn rests on the process of sampling and its safe and secure custody and transmission to the laboratory. The prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample(s) and will impair and vitiate the conclusiveness and
reliability of the Report of the Government Analyst, thus, rendering it incapable of
sustaining conviction".
11. Apart from the above, the perusal of cross -examination of PW -3 also reveals that the
statement under section 161, Cr.P.C. of said witness recorded after delay of one month and
five days, that too, without any plausible explanation, makes the prosecution case doubtful.
12. From the perusal of evidence, it transpires that the prosecution has failed to prove the
allegation against the appellant beyond reasonable doubt. In this regard reliance is placed in the case of "Tariq Pervez v. The State" 1995 SCMR 1345, wherein it has been held as follows:
"The concept of benefit of doubt to an accused person is deep rooted in our country. For giving 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 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."
13. This legal proposition was also reiterated in the case of Ghulam Qadir and 2 others v.
The State 2008 SCMR 1221, where it has been observed that:
"It needs no reiteration that for the purpose of benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in
the mind of a reasonable and prudent mind regarding the truth of the charge makes the
whole case doubtful. Merely, because the burden is on the accused to prove his
innocence does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt."
For the above reasons, the appeal is allowed. The impugned judgment dated 14th
January 2022 passed by the learned Special Judge Control of Narcotic Substances, Mekran at Turbat is set aside and the appellant Muhammad Alim son of Karim Bakhsh is acquitted of the charge under section 9(c) of the Act, 1997 in case FIR No. 08 of 2021 Police Station Nasirabad District, Kech. The appellant is ordered to be released forthwith, if not required in any other case. The appellant is on bail. His bail bonds stand discharged.
JK/45/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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