Ayaz alias Siko vs The State

SARDAR AHMED HALEEMI, J. This appeal is directed against the judgment dated 14th January, 2022 (hereinafter the "impugned Judgment") passed by 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 of payment of fine, the appellant shall further undergo for a period of 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 the complaint of Sher Jan, SI/SHO, an FIR No. 02 of 2021 dated 4th February 2021 under section 9 (c) of the Act, 1997 was registered with Police Station Nasirabad District, Kech, wherein the complainant alleged that on the fateful day, he along with other police officials were on area patrolling, where they received secret information that one Ayaz alias Siko was dealing drugs in his den situated at Nodiz Jangle Pargok; on such information, they raided the place and found a person present there, who was apprehended, who disclosed his name as Ayaz alias Siko son of Hassan (the appellant); from his personal search, a white colour plastic bag containing two packets of charas were recovered from neefa of his shalwar, which were taken into possession; on weighing, each packet came to 1000 gram total 2000 grams, hence this report.

3. After usual investigation, challan was submitted before the trial Court, wherein charge under section 9(c) of the Act, 1997 was framed and read over to the appellant, to which he pleaded not guilty and claimed trial.

4. The prosecution produced five witnesses. After the completion of prosecution evidence, the appellant was examined under Section 342, Cr.P.C, wherein he denied the allegations levelled against him and claimed innocence. He neither examined himself under section 340(2), Cr.P.C. nor produced any witness in his defence. However he produced a copy of statement of PW-3 Riaz Ahmed in case "State v. Alam" as Mark-A.

5. The trial Court vide impugned judgment convicted and sentenced the appellant, hence this appeal.

6. Learned counsel for the appellant contended that the trial Court has miserably failed to prove the charge against the appellant beyond reasonable doubt and despite, benefit of doubt whereof has not been extended in favour of the appellant, as such the impugned judgment is liable to be set aside.

7. On the other hand, the learned Deputy Prosecutor General supported the impugned judgment and contended that the trail Court while passing the impugned judgment, considered all aspects of the matter and passed a well-reasoned judgment, which cannot be disturbed, hence is liable to be sustained.

8. We have heard the learned counsel for the appellant as well as learned Deputy Prosecutor General and perused the record with their able assistance.

9. Perusal of record reveals that the police patrolling party while on patrolling, on spy information apprehended the appellant and recovered from his possession 2000 grams charas from Neefa of his Shalwar. To prove such recovery, the prosecution examined five PWs. Perusal of statement of PW-3 Riaz Ahmed, Head Moharror reveals that in his cross-examination, he stated that the samples for analysis were sent to Quetta by special messenger and during examination-in-chief, he stated that his statement under section 161, Cr.P.C. was recorded on 27th February, 2021, whereas the incident was taken place on 4th February, 2021, as such there is a delay of 23 days in recording of statement of PW-3 under section 161, Cr.P.C. therefore, same makes the case of prosecution doubtful and any doubt if arises in the link of chain of safe custody and transmission, the benefit of the same will go to the accused. In this regard, reliance is placed in the case of Mst. Razia Sultana and others v. The State 2019 SCMR 1300, wherein it has been held as under: "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."

10. Likewise, it is also settled principle of law that liberty of a person is a precious right, which has to be resolved in favour of the accused being favourite child of law, denial of same requires extreme compelling reasons.

11. In view of the above, we have reached to the conclusion that the prosecution could not prove the safe custody and transmission of representative samples from the place of occurrence to the office of Government analyst; the prosecution has failed to prove its case against the appellant beyond reasonable 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 Ayaz alias Siko son of Hassan is acquitted of the charge under section 9(c) of the Act, 1997 in case FIR No. 02 of 2021 dated 4th February 2021 Police Station Nasirabad District, Kech. The appellant is on bail. His bail bonds stand discharged.