Muhammad Pathan Jamali and another vs The State
This criminal appeal challenges the conviction and sentence of the appellants for the possession of thirty kilograms of charas under Section 9(c) of the Control of Narcotic Substances Act 1997. The appellants were convicted by the trial court, which relied on the recovery of narcotics from a vehicle. The core legal question before the High Court was whether the prosecution’s failure to examine the maalkhana in-charge at trial constituted a fatal defect in the chain of custody, thereby undermining the reliability of the Chemical Analyst's report. The Court held that the conviction could not be sustained. It reasoned that the prosecution is strictly required to prove both the safe custody and safe transmission of the seized contraband from the point of recovery until its receipt by the laboratory. By failing to produce the maalkhana in-charge as a witness, the prosecution failed to establish the integrity of the chain of custody. Consequently, the Court set aside the conviction, emphasizing that any break in the chain of custody vitiates the evidentiary value of the forensic report, rendering it insufficient to support a conviction.
- Does the failure to examine the maalkhana in-charge at trial break the chain of custody in narcotics cases?
- Is the safe custody of seized narcotics from the place of recovery to the laboratory a mandatory requirement for conviction?
- Does a break in the chain of custody render the report of the Government Analyst incapable of sustaining a conviction?
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 342, Code of Criminal Procedure 1898
Omar Sial, J.- Muhammad Pathan was driving a truck on 28.10.2021 with Meer Ahmed, the bus cleaner, beside him. A police party led by Inspector Abdul Hameed Bughio of the Excise Police stopped and searched the truck. Thirty kilograms of charas were recovered from a secret cavity in the truck. Both men were arrested, the charas were seized, and F.I.R. No. 2 of 2021 under section 9(c) of the CNS Act 1997 was registered.
2. Both men pleaded not guilty and claimed trial. At trial, the prosecution examined the following witnesses. E.C. Muhammad Tariq, the official who took the charas from the maalkhaana to the Chemical Laboratory, was the first witness. Inspector Abdul Hameed, the complainant and the investigating officer, was the second witness. E.C. Kamran Ali witnessed the arrest and recovery and was the third witness. In their respective section 342 Cr.P.C. statements, both the accused professed innocence. The learned 1st Additional Sessions Judge, Larkana, on 05.03.2024, convicted the appellants and sentenced them to life in prison and a fine of Rs. 100,000.
3. We have heard the learned counsel for the appellants and the learned Deputy Prosecutor General. Their respective arguments are not reproduced for brevity but are reflected in our observations and findings below.
4. The primary argument made by the learned counsel was that safe custody and transmission of the seized charas were not proved in the trial as the maalkhana in charge was not examined at trial. He cited several judgments to support his argument that conviction could not be sustained due to the prosecution lapse. The record reflects that the arrest and recovery occurred at 4:00 p.m. on 28.10.2021. The case property was deposited in the maalkhana soon after the police party brought the accused to the police station, and the F.I.R. was registered. The next day, the property was sent for analysis through E.C. Mohammad Tariq. While the courier, E.C. Mohammad Tariq, was examined at trial, the maalkhana in charge was not called a witness by the prosecution. In a series of cases, the Supreme Court and the Division Benches of this Court have held that a conviction would not hold if safe custody and transmission of the seized narcotics is not proved at trial. In the present case, secure transmission was demonstrated, but safe custody was not proved as the maalkhana in charge did not come in as a witness. In a recent case reported as Sarfaraz Ahmed vs The State (2024 SCMR 1571), it has been held that:
9. In order to prove the safe custody of the parcels of the contraband, Moharrar (Abdul Qayyum) of PS Kalat has not been produced at the trial by the prosecution. In the cases of "Said Wazir v.
The State", "Muhammad Shoaib v. The State" and "Ishaq v. The State" it has been held that due to non-appearance of the Moharrar at the trial, the safe custody of the parcel of the contraband as well as the sample parcel has not been established by the prosecution. In the case of "Zahir Shah v. The State" it has been laid as follows by this Court: "This court has repeatedly held that safe custody and safe transmission of the drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory must be satisfactorily established.
This chain of custody is fundamental as the report of the Government Analyst is the main evidence for the purpose of conviction. The prosecution must establish that chain of custody was unbroken, unsuspicious, safe and secure. Any break in the chain of custody i.e., safe custody or safe transmission impairs and vitiates the conclusiveness and reliability of the Report of the Government Analysis, thus, rendering it incapable of sustaining conviction."
5. The learned Additional Prosecutor General submitted that the non-appearance at the trial of the maalkhana in charge would not impact the prosecution case. He relied on a judgment reported as Zain Ali vs The State (2023 SCMR 1669). The learned prosecutor is correct that the Supreme Court took a different view in this case. With much respect and humility, however, we have swayed towards the series of judgments passed by the Supreme Court before and after the judgment in the Zain Ali case. Apart from the Sarfaraz Ahmed case (supra), reference may also be made to Asif Ali vs. The State (2024 SCMR 1408), Said Wazir vs. The State (2023 SCMR 1144), Javed Iqbal vs. The State (2023 SCMR 139). The Supreme Court in the Sarfaraz case has also referred to previous judgments before the Zain Ali one.
6. Given the above, and as the maalkhana in charge was not examined at the trial, safe custody of the narcotics was not proved. The conviction can, therefore, not be sustained. There is little point in discussing other aspects of the case. The appeal is allowed, and the impugned judgment is set aside. The appellants may be released if not required in any other custody case.