MUHAMMAD ALI Versus State

ABDUL MOBEEN LAKHO, J. ---This Criminal Jail Appeal is directed against the impugned judgment dated 29-08-2018 passed by the leanred Special Judge, Control of Narcotic Substances, Thatta, in Special Case No. 36 of 2015, bearing crime No. 34 of 2015, Police Station ANF Clifton Karachi, registered under section 9(c), Control of Narcotic Substances Act, 1997; whereby appellant was convicted and sentenced to suffer rigorous imprisonment for life coupled with fine of Rs.100,000/=; in case of default in payment of fine to suffer simple imprisonment of one year more. The benefit of section 382-B, Cr.P.C. was also extended in favour of the appellant.

2. Briefly, the prosecution story as narrated in the FIR is that on 04.09.2015, Inspector Tahir Ahmed Bhatti received information from his high-ups to the effect that one Muhammad Ali Soomro Intra Provincial Narcotic Smuggler is openly selling huge quantity of contraband narcotic substances [charas] with the help of his brother in District Sujawal on such information, under the instruction of his high-ups. a raiding party was constituted under his subordination and ASI namely Muhammad Mashooque, HC-Muhammad Akram, PC-Shafique Gul Bahar, PC-Zafar. PC-Ismail Khan, LNK-Mustafa along with other subordinate staff under the supervision of AD Incharge Station Manzoor Ahmed Phull along with the spy informer left Police Station Anti-Narcotic Force. Clifton Karachi, vide entry No.13 at about 2300 hours, when they reached near the house of accused Muhammad Ali Soomro they saw that one person was standing on the roof who upon seeing the police vehicle tried to escape but was apprehended with the help of members of raiding party. At the relevant time due to non-availability of private persons, they associated two members of raiding party ASI Muhammad Mashooq and PC-Zafar Ali and inquired the name and whereabouts of said apprehended person in presence of above named witnesses. He disclosed his name as Muhammad Ali son of Muhammad Soomar by caste Soomro, resident of Darro, Taluka Mirpur Bathoro. District Sujawal. In the meantime the spy confirmed that this is the same person Muhammad Ali Soomro. During interrogation at the spot, he admitted availability of contraband narcotic substance in a room situated in his house. Thereafter they proceeded towards the house of accused on his pointation and knocked the door of the said house and in response, one person opened the door, apprehended accused Muhammad Ali disclosed that the person who opened the door is his real brother. Thereafter they apprehended the real brother of accused Muhammad Ali Soomro and inquired his name who disclosed his name as Abdul Aziz son of Muhammad Soomar by caste Soomro, resident of Darro, Taluka Mirpur Bathoro, District Sujawal. Thereafter the apprehended accused Muhammad Ali Soomro led them towards a room and produced two white colour nylon sacks containing contraband narcotic substance and handed over the same to them. On checking, they found 25 multi coloured foil packets in one white colour nylon sack and in another nylon sack, they found 24 multi coloured foil packets. Thereafter the said foil packing(s) were removed through instrument and each multi coloured foil packet was found containing two slabs of charas wrapped in a plastic paper mentioning the mark of Shehr-i-Sindh on each slab. Thereafter, the charas was weighed and a total 49 kilograms of charas was found available in both nylon sacks. Thereafter they put the charas back in the same white colour nylon sack and then both nylon sacks were sealed in a sealing parcel separately for sending the same to the office of chemical examiner for its analysis. Thereafter both apprehended accused persons were searched but nothing was recovered from them. The mashirnama was prepared at spot. On 05.09.2019 at about 0700 hours, they brought the arrested accused and seized contraband narcotic substance parcels at Police Station ANF Clifton, Karachi, where the FIR vide crime No. 34/2015 for the offence punishable under sections 6, 9, 14 and 15 Control of Narcotic Substances Act. 1997, was registered against the accused persons.

3. Upon completion of usual investigation. challan was submitted before the trial Court and a formal charge was framed against the accused to which they pleaded not guilty and claimed trial vide their plea at Ex.2/A and Ex-2/B respectively.

4. Prosecution to substantiate the charge examined PW-1 Inspector Tahir Ahmed Bhatti, at Ex.4, PW-2 PC Muhammad Zafar at Ex.5; who produced all the relevant papers. Statements of the accused under section 342, Cr.P.C. were recorded and the accused claimed themselves to be innocent. Accused Muhammad Ali wanted to lead defence evidence in disproof of the charge as provided under section 340(2), Cr.P.C.; but later-on learned counsel for the accused did not produce DWs, and closed side of the defence vide Ex.10.

5. Mr. Jameel Ahmed Shah, advocate, representing appellant contended that impugned judgment is the result of misreading and non-reading of the evidences available on record; learned counsel argued that the impugned judgment is a nullity in the eyes of law and is not sustainable and requires interference by this court; that the role attributed to the convict appellant is that he is real brother of the co-accused who died during trial in custody; that raiding party headed by the Officer of Anti-Narcotic Force could not obtain search warrant from the concerned Magistrate for conducting raid at the house of appellant; the parameters of section 25 of Control of Narcotic Substances Act, 1997, do not negate provisions of section 103, Cr.P.C. and therefore application of provision of section 103 cannot be omitted. Learned counsel further argued that the alleged illicit contraband was wrapped in two [Kattas] which have not been produced in evidence before the trial Court and the alleged illicit contraband was sent to the Chemical Laboratory for examination with a delay of two days without furnishing of any plausible explanation in this regard thus making the safe custody and transmission doubtful; learned counsel further contended that the officer who was heading raiding party has not been cited as a prosecution witness; nor as complainant of the case; and that there are series of material contradictions in the statement of prosecution witnesses which have been overlooked; learned counsel further contended that the impugned judgment suffers from material irregularities and illegalities committed in the impugned judgment which require interference. Lastly learned counsel for the appellant contended that the impugned judgment may be set aside and the instant criminal jail appeal may be allowed and convict appellant may be acquitted of the charged offence.

Learned counsel for the appellant relied upon the case law reported as PLD 2008 Supreme Court 376 Arshad Mahmood v. The State, 2019 SCMR 1300 Mst. Razia Sultana v. The State and another, 2015 SCMR 1002 Ikramullah and others v. The State, 2018 YLR 1992 Nazar Muhammad alias Nazroo v. The State, 2015 SCMR 291 Akhtar Iqbal v. The State. Reference has also been made to PLD 2008 Supreme Court 376, 2007 YLR 3087.

6. Mr. Habib Ahmed, advocate/Special Prosecutor representing Anti-Narcotic Force contended that the impugned judgment is well reasoned and is sustainable under the law, that the impugned judgment is the result of deeper appreciation of the evidence; that the impugned judgment do not warrant any interference by this court: that huge quantity of narcotic has been recovered from the house and possession of the appellant; that the impugned judgment is based on the evidence which prosecution was able to collect and the report of chemical examiner is also positive, which proves the guilt of the appellant. Lastly learned SPP contended that the impugned judgment may be upheld and the instant criminal jail appeal may be dismissed.

7. We have heard the learned counsel representing the appellant and the learned Special Public Prosecutor Anti-Narcotic Force and have minutely scanned the entire record available before us. It is well settled principle of law that while deciding criminal appeal this court has to reappraise the entire evidence available on record for safe administration of criminal justice.

8. It is apparent on the record that the property was sent to the chemical examiner after a delay of two days, however no plausible explanation has been furnished by the prosecution in this regard. The officials who ultimately took the contraband for transportation to the chemical examiner has not been examined as a witness of the alleged transportation. Moreso there is nothing on record to show where the recovered property was kept for those two days. This would make the case of prosecution on the point of safe custody and transportation to chemical examiner untrustworthy.

To the above aspect of the case, we are in respectful league with the case law reported in 2019 SCMR 1300 in the case of Mst. Razia Sultana v. The State, it has been laid down as follows:-

"----Rr. 5 & 6---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)--- Possession of narcotics---Report of Government analyst---Safe custody and transmission of samples of the alleged drug from the police to the Chemical Examiner---In cases where the chain of custody was broken, the report of the Chemical Examiner lost its reliability making it unsafe to support conviction---In the present case the sample of narcotic was dispatched to the Government Analyst for Chemical Examination through an officer of the Anti-Narcotics Force, but the said officer was not produced to prove safe transmission of the sample from the police to the Chemical Examiner---Chain of custody thus stood compromised---Resultantly, it would be unsafe to rely on the report of the Chemical Examiner---Conviction and sentence of accused was set aside in circumstances."

We have also been fortified by case law reported in 2018 YLR 1992 in the case of Nazar Muhammad alias Nazroo v. The State, it has been held as follows:-

"----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Benefit of doubt---Alleged recovered charas was sent to the Chemical Examiner two days after its recovery and prosecution had failed to produce any entry of Malkhana as well as statement of incharge thereof in order to establish its safe custody---Despite the fact that case was of prior information, the complainant had admitted that neither he asked any private person to associate as mashir to witness the recovery proceedings, nor he tried so, though there were so many people available at the place---Evidence produced by the prosecution, was not reliable, trustworthy and confidence inspiring and there were material contradictions in the evidence of the prosecution witnesses----Delay of two days in sending samples of charas to chemical Examiner could not be ignored. Report of Chemical Examiner, was also not in accordance with prescribed rules---Material contradictions were noticed in the evidence of the complainant and mashir which could not be relied upon----Prosecution having failed to prove its case against accused beyond reasonable shadow of doubt, extending benefit of doubt to accused, impugned judgment passed by the Trial Court was set aside and accused was ordered to be released."

9. The venue of occurrence was a dwelling house of brother of appellant but no search warrant was obtained from the concerned Magistrate for conducting raid at the house. Apart from above, the role of appellant with regard to the conscious possession of narcotics is not trustworthy in that the prosecution has failed to bring an iota of evidence to prove his connection with the narcotics recovered from the spot. The only evidence against him is that when the raiding party proceeded towards the house of deceased appellant Mohammad Ali Soomro; and knocked the door of the said house he in response opened door of the house. Except that no evidence establishing nexus of the appellant with narcotics has been brought on record. Mere presence of the appellant on the spot would not be sufficient to connect him with the alleged narcotic substance. Particularly when the prosecution has not even alleged a single word about conscious possession of the narcotics by the appellant. The prosecution has failed to establish that the appellant was found in conscious and intelligent possession of the contraband beyond a reasonable doubt. In fact, the prosecution has to prove two elements of possession i.e. (i) corpus, the element of physical control and (ii) animus or intent with which such control is exercised, but such ingredients have not been proved.

10. The law on the subject is quite settled that mere presence of the accused in the house cannot be treated as sufficient to saddle him with the responsibility of possession of narcotic substance recovered from the house unless the prosecution establish through independent evidence that such person was conscious and aware of availability of narcotic substance in the house The prosecution has miserably failed to establish through cogent, reliable and tangible evidence that, the house-in-question was in the exclusive possession of the appellant.

The Hon'ble Apex Court has been pleased to dilate on that aspect in the case reported in 2015 SCMR 1002 in the case of Ikramullah and others v. The State, it has been observed by the Lordship as follows:-

"----Ss. 9(c) & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 & 6---Recovery of narcotic substance--- Reapraisal of evidence--- Chemical Examiner Report---Safe custody of narcotics---Proof---Accused persons were convicted and sentenced to imprisonment for life alleging recovery of 48 packets of Charas from their vehicle-- Validity---Entire page which was to refer to relevant protocols and tests was not only substantially kept blank but the same had also been scored off by crossing it from top to bottom---Such was a complete failure of compliance of relevant Rule and such failure reacted against reliability of report produced by prosecution before Trial Court---Provisions of S. 36 of Control of Narcotic Substances Act, 1997, required a government Analyst to whom a sample of recovered substance was sent for examination to deliver to the person submitting the sample a signed report in quadruplicate in "the prescribed form"---If report prepared by government analyst was not prepared in the prescribed manner then it could not qualify to be called a report in the contest of S. 36 of Control of Narcotic Substances Act, 1997, so as to be treated as "conclusive" proof of recovery of narcotic substance from accused person---Investigation Officer appearing before Trial Court had failed to even mention name of police official who had taken the samples to office of Chemical Examiner---No such police official was produced before Trial Court to depose about safe custody of samples entrusted to him for being deposited in office of Chemical Examiner---Prosecution was not able to establish that after alleged recovery of substance so recovered was either kept in safe custody or that samples were taken from recovered substance had safely been transmitted to office of Chemical Examiner without the same being tampered with or replaced while in transit---Prosecution failed to prove its case against accused persons beyond reasonable doubt----Supreme Court set aside conviction and sentence awarded to accused persons and they were acquitted of the charge---Appeal was allowed."

11. It is settled provisions of Law that if there is single circumstance, which creates a reasonable doubt in a prudent mind the benefit of the same would be extended in favour of the accused.

We are also fortified with the case law reported in 1993 SCMR 550, it has been held as follows:-

"----Benefit of doubt---Accused is presumed to be innocent until prosecution proves case against him beyond shadow of reasonable doubt and if prosecution fails in its duty which never shifts to the defence accused is entitled to the benefit of doubt."

12. In this view of the matter we have found the learned Trial Court to be utterly unjustified in convicting and sentencing the appellant for the alleged offences. This appeal is, therefore allowed the conviction and sentence of the appellant recorded by the learned court are set aside and appellant is acquitted of the charge by extending him benefit of doubt. In so far as the Appellant Mohammad Ali son of Muhammad Soomar is concerned he died during pendency of the instant Criminal Jail Appeal and such intimation has been communicated by the Senior Superintendent, Central Prison Karachi, vide a letter bearing No.JB/38167/68 dated 26-08-2019, which is available on the record and in view of such fact this appeal was ordered to be abatted vide order dated 15.11.2019. These are the reasons of short order dated 15-11-2019.

MH/M-253/Sindh Appeal allowed.