2023 Y L R 81
[Balochistan]
Before Muhammad Ejaz Swati and Iqbal Ahmed Kasi, JJ
TALAL---Appellant
Versus
The STATE--- Respondent
Criminal Jail Appeal No. (T) 05 of 2021, decided on 17th August, 2022.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Recovery of narcotics ---Appreciation of evidence ---Benefit of doubt ---Safe
custody--- Contradictory statements ---Withholding best evidence ---Scope ---Accused was
convicted for having been found in possession of 8 kilograms of charas when his house was
raided ---Complainant had admitted during cross -examination that no identification marks
were put on the recovered articles; that total recovered charas was weighed collectively but he was contradicted by another prosecution witness and tha t the raiding party was
accompanied by a lady constable but she was not produced before the Court ---Samples were
allegedly handed over to the sample -bearer on the very next day of recovery but he stated
that he had taken the samples after one and a half month of the day of recovery--- Prosecution
had failed to prove the chain of custody---Appeal was allowed and the accused was acquitted of the charge.
Mst. Sakina Ramzan v. The State 2021 SCMR 451 and Mst. Iqbal Bibi v. State 2000
PCr.LJ 1812 rel.
(b) Crimin al trial ---
----Benefit of doubt ---Scope ---Prosecution, in order to bring home guilt, must bring reliable
evidence in support of its charge and a single doubt in the case against an accused would be sufficient to acquit him instead of existence of series o f contradictions.
Minhaj Khan v. The State 2019 SCMR 326 rel.
Meiraj Ali for Appellant.
Sudheer Ahmed Baloch, Deputy Prosecutor General for the State.
Date of hearing: 5th August, 2022.
JUDGMENT
IQBAL AHMED KASI, J .---Initially the instant Criminal Jail Appeal was sent by
the appellant Talal son of Faqeer Muhammad, through the Superintendent Central Prison
Gaddani, but later, on 07.12.2021, Mr. Meiraj Ali, Advocate appeared and filed power on behalf of the appellant.
2. The appellant has presented t he instant Jail Appeal against the judgment 30th
October, 2021, ('the impugned judgment') passed by the Special Judge, CNS, Gwadar ('the trial Court'), whereby, appellant Talal son of Faqeer Muhammad was convicted under section 9(c) of the Control of Narco tic Substances, Act, 1997 ('the Act of 1997') and sentenced to
suffer 04 (four) Year R.I. and to pay a fine of Rs. 20,000/ - (rupees twenty thousand), in
default whereof to further undergo S.I. for 01 (one) month, with benefit of section 382- B,
Cr.P.C.
3. Briefly stated facts of the case are that on 30th January, 2021, complainant IP, Abdul
Haq, forwarded a report to S.H.O. of Police Station Gwadar, for registration of case, with the averments that on the said date at about 02:00 p.m. he received a spy infor mation of selling
narcotics at Naya Abad Gwadar. Upon such information, he raided the house of accused, situated near TCF School, Gwadar and found the accused present in a room of the house. During search, of the house, 8 kilograms of charas was recovered.
Upon such report of the complainant, FIR No. 13 of 2021, under section 9(c) of the
Act of 1997, dated 30th January 2021, was registered.
4. After completion of usual investigation, challan of the case was submitted before the
trial Court, and the trial was commenced.
5. On 19.02.2021, a formal charge was framed and read over to the accused, to which he
pleaded not guilty and claimed trial.
6. To prove the guilt of the accused, prosecution produced PW -1 IP/SHO Abdul Haq,
PW-2 Ezzat Ali (constable), PW-3 Basheer Ahmed, SI, PW -4 Zubair Ahmed, Head
Constable and PW -5 Meeran IP/Investigating Officer.
7. On closure of prosecution side, the accused was examined under section 342, Cr.P.C.
He recorded his statement on oath, as provided under section 340(2), Cr.P.C., but did not opt to produce any witness in his defence.
8. The trial Court on conclusion of evidence from both the sides, after appreciation of
evidence, convicted and sentenced the accused, vide impugned judgment in the manner as mentioned hereina bove.
9. Learned counsel for the appellant contended that the impugned judgment is not
maintainable, as the judgment of the learned trial Court is based on misreading and non -
reading of the evidence; that the learned trial Court has mis -appreciated the statements of
prosecution witnesses and ignored the material contradictions occurred between them; that there is a serious doubt in respect of the sending the alleged recovered material to FSL, but
the trial Court, passed the impugned illegal and unlawful judgment, while turning down the
same; that the learned trial Court, has also failed to extend benefit of doubt in favour of the appellant and passed the impugned judgment, which is not maintainable, hence therefore, the appellant is liable to be acquitted of the charge.
10. On the other hand learned D.P.G., appearing on behalf of the State, contended that the
appellant is involved in a heinous crime of selling contraband material; that the prosecution has produced a reliable and trustworthy evidence and the t rial Court after appreciating the
same in its true perspective, has rightly passed the conviction order against the appellant; that there is no illegality or irregularity in the impugned judgment of the trial Court, warranting interference of this Court.
11. We have heard the learned counsel for the parties and have gone through the available
record. On the complaint of IP Abdul Haq, FIR Ex.P/5- B was registered wherein the
complainant alleged the recovery of 8 kilograms of charas from the possession of the appellant, from a house where the appellant resides. He in his fard- e-bayan further averred
that when they raided the house, 8 packets of charas, containing 2/2 pieces, total 16 pieces were recovered lying infront of the appellant.
PW-2 Ezzat Ali, Constab le, is the marginal witness of recovery memo. He brought on
record, the recovery memo. of charas Exh.P/2- A and and acknowledged the parcels and
recovered articles before the Court as Art.P/1 to Art.P/3.
PW-3 Basheer Ahmed, SI, who kept the recovered contr aband in his custody in
Malkhana of Police Station Gwadar.
PW-4, Zubair Ahmed, Head Constable, transmitted the samples of the recovered
charas to FSL, and received the certificate issued by the FSL.
PW-5 Meeran IP, is the Investigating Officer of the case, who deposed before the
Court with regard to certain proceedings conducted by him during investigation. He brought on record the site map as Ex.P/5- A, FIR Ex.P/5 -B, incomplete challan Ex.P/5 -C, complete
challan Ex.P/5 -D and two FSL certificates as Ex. P/5-E and Ex.P/5 -F.
12. The bare perusal of testimonies of the witnesses produced by the prosecution reveals
that the PW -1 IP/SHO Abdul Haq, during the course of cross -examination admitted that no
identification marks were put on the recovered articles. He in his statement further stated that
the total recovered 8 kilograms of charas was weighed collectively, whereas, the PW -2
during his cross -examination while replying a question stated that each packet was weighed
separately. Moreover, the complainant all eged that at the time of raid, they were also
accompanied with a lady constable, namely, Yasmeen Bibi, who firstly entered in the house of the appellant, but surprisingly, neither she was produced before the Court as witness, nor mentioned the reason that why she was dropped and not examined.
13. Apart from above, record further reveals that on the very next day of occurrence, the
representative samples were handed over to the PW- 4 to its transmission to FSL, for
chemical examination, however, he in his sta tement stated that on 14 March 2021, he took
the representative samples to Karachi, for chemical examination, whereas, the report of the
expert Ex.P/5- E and Ex.P/5 -F, also shows that the representative samples were received on
15th March 2021, with memorandum dated 16.02.2021. Admittedly, the period between 31st January 2021 when according to the complainant, the samples were sent and till its receipt by
the FSL on 15th March 2021, remained unexplained, hence the prosecution has not proved
the chain. It is held by the Hon'ble Supreme Court of Pakistan in case titled as Mst. Sakina
Ramzan v. The State, bearing Criminal Appeal No.D -98/2016 (approved for reporting),
decided on 6th January 2021, as under:
"The chain of custody which includes safe custody, safe transmission of the narcotic
drug begins with the seizure of the law enforcement officer, followed by separation of the representative samples of the seized narcotic drug, storage of the represen -tative
samples and the narcotic drug with the law enforcemen t agency and subsequent
dispatch of the representative sample of the narcotic drug to the office of the chemical examiner or Government Analyst for examination and testing. This chain of custody must be transparent, uncompromised, recorded, safe, secure an d unbroken. The chain
of custody assumes critical importance under CNSA because; the Report of the Chemical Examiner can be the sole basis of conviction of the accused. Therefore, it is important to ensure that the integrity of the chain of custody was int act and the
actually seized narcotic drug or its repre- sentative samples have reached the office of
the Chemical Examiner or Government Analyst for testing and examination. As corollary any break or gap in the chain of custody i.e., in the safe custody or safe
transmission, of the narcotic drug or its reprehensive sample renders the Repot of the Chemical Examiner unsafe and unreliable to support conviction. The prosecution, before placing reliance on the Report of the Chemical Examiner or the Government
Analyst, must first establish that the chain of custody is safe, secure and unbroken. In
case the prosecution fails to do so, the Report of the Chemical Examiner or the Government Analyst loses its reliability."
Similarly, regarding sending of recovered contr aband material with delay to FSL for
chemical analysis, in case of Mst. Iqbal Bibi v. State 2000 PCr.LJ 1812, it was observed that:
"The argument of the learned counsel for the appellant is that there was delay of 5 days in dispatching the parcel to F.S.L . which makes the case of prosecution doubtful.
This argument has force in it. The alleged recovery was effected on 29 -06-1996
whereas the Report of the Chemical Analyst shows that one gram of heroin sent by prosecution was received in laboratory on 3 -7-1996, i.e., with the delay of 5 days.
There is no explanation available on record as to in whose custody the said parcel was lying for 5 days. The delay in dispatch of the recovered heroin has made the report of F.S.L. doubtful and unrealiable."
14. Thus the mode and manner, in which the samples for analysis were prepared and sent
to FSL, makes the prosecution case relating to recovery of narcotics as well as its analysis report to be highly doubtful and it is well settled that the benefit of doubt in any con text, if
prevalent, shall extend to the accused.
15. Now adverting to contradictions as discussed in para supra, it is well settled that in
order to bring home guilt in narcotic cases, prosecution must bring reliable evidence in
support of its charge and i t has held umpteenth time by the superior courts that a single doubt
in the case against an accused would be sufficient to acquit him instead of existence of series of contradictions. Reliance in this respect is made to the case of Minhaj Khan v. The State
(2019 SCMR 326), wherein, the Hon'ble Supreme Court of Pakistan has held as under:
"The discrepancies in the testimonies of the two witnesses; the purported lack of knowledge about certain things which they ought to have remembered whilst having a photographic recollection of other insignificant things; not knowing those things which they should have; the fact that Constable Jehanzeb Khan reached the police station before the complainant PW -2; the non -production of Constable Jehanzeb
Khan who took the wr itten complaint and was an eye -witness of the occurrence and of
the recovery memorandums; and the inexplicable conduct of the complainant PW -2 in
not proceeding to the police station himself to register the FIR are matters of concern and collectively of incredulity. The conclusion therefrom that we draw is that the prosecution had failed to establish its case against the petitioner beyond reasonable doubt, or, at worst, that the petitioner was involved in a false case for ulterior reasons."
16. Thorough and careful examination of the record would show that the learned trial
court has not appreciated the case evidence in its true perspective and the conclusion drawn by it are not borne out from the case record for which the impugned judgment cannot be upheld.
For above reasons, we have already acquitted the appellant of the charge, vide order
dated 05.08.2022, which reads as under:
"For the reasons to be recorded later on Criminal Jail Appeal No.05 of 2021, is accepted. The impugned judgment date d 30.10.2021, passed by Special Judge CNS
Gwadar is set aside. The appellant namely Talal son of Faqeer Muhammad is acquitted of the charge in respect of FIR No.13/2021, dated 30.01.2021, registered at Police Station, Gwadar."
These are the detailed reaso ns of our short order dated 05.08.2022.
SA/146/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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