Gulzar vs The State

QAZI MUHAMMAD AMIN AHMED, J.---The appellant was surprised with a considerable cache of cannabis by a contingent of Khanpur Mahar Ghotki police on 27.3.2017; a Special Judge (CNA ) Ghotki vide judgment dated 20.10.2017 returned him a guilty verdict; convicted under section 9(c) of the Control of Narcotic Substances Act, 1997, he was sentenced to 10-1/2 years rigorous imprisonment with a direct ion to pay fine in the sum of Rs.50,000/- or to undergo simple imprisonment for a period of 8 months in lieu thereof, pre-trial period inclusive, upheld by a learned Division Bench of the High Court of Sindh vide impugned judgment dated 11.9.2018, assailed by the convict through a jail petition.

2. Heard. Record perused.

3. Significant quantity of contraband notwithstanding, nonetheless, we have noticed prosecution's failure to establish safe transmission to the office of Chemical Examiner; the failure has its consequences inasmuch as narcotic character of the contraband, recovery whereof is denied by the appellant throughout, was not established as Rahib Din (PW-2), examined under Public Prosecutor's shadow , did not utter a single word to prove transmission of the entire cache, purportedly transmitted by him to the office of, Chemical Examiner , in absence whereof, the appellant cannot be saddled with the culpability of possession without being conjectural, an option hardly available under the law. Criminal Appeal No.630 of 2019 is allowed; impugned judgment is set aside; the appellant is acquitted of the charge; he has already been ordered to be released, unless otherwise required to be detained, vide short order of even date.