2021 S C M R 492

[Supreme Court of Pakistan]

Present: Maqbool Baqar, Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

ZUBAIR KHAN---Petitioner

Versus

The STATE---Respondent

Jail Petition No. 508 of 2016, decided on 21st January, 2021.

(Against the judgment dated 30.08.2016 passed by the High Court of Sindh in Crl. Jail Appeal No.S-160 of 2011)

(a) Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(c)---Possession and transportation of 80 kilograms of charas---Reappraisal of evidence---Safe custody and transmission of samples of the narcotic from the police to the chemical examiner not established---Duplicate forensic report presented---Held, that the prosecution failed to establish the essential link of safe transmission of samples to the office of Chemical Examiner as despite opportunity the relevant official, who had delivered the samples, failed to enter the witness box---Furthermore the prosecution relied on a duplicate forensic report, which was inadmissible in evidence, to confirm narcotic character of the contraband---Supreme Court observed that such appalling inaptitude of the functionaries tasked to prosecute the crime, left no juridical possibility to maintain accused's conviction---Petition for leave to appeal was converted into appeal and allowed and the accused was acquitted of the charge.

(b) Control of Narcotic Substances (Government Analysts) Rules, 2001---

----R. 6---Possession of narcotics---Duplicate forensic report/Report of Government analyst---Such duplicate forensic report was inadmissible in evidence.

Qari Abdul Rasheed, Advocate Supreme Court for Petitioner.

Zafar A. Khan, Additional Prosecutor General for the State.

Date of hearing: 21st January, 2021.

JUDGMENT

QAZI MUHAMMAD AMIN AHMED, J.---A contingent of Naushahro Feroze police, after a hot pursuit, intercepted a suspicious truck bearing registration No.E-5318, ostensibly transporting a cargo comprising 100 bags of potatoes with 80 packets of cannabis, surreptitiously concealed in the secret cavities thereof, at 4:00 p.m. on 21.4.2010; the petitioner was on the wheel; the vehicle and the contraband, weighed as 80 K.G, were secured vide inventories; forensic analysis of the samples, separated from the each packet, confirmed narcotic character thereof. As the investigation progressed, one Abdul Latif Gul, since P.O., was identified as the man behind the scene. The petitioner claimed trial, pursuant whereto, prosecution produced two witnesses as well as case property consisting the impounded vehicle and the contraband, confronted by the petitioner with denial; he was returned a guilty verdict with imprisonment for life vide judgment dated 02.04.2011, upheld by the High Court of Sindh vide impugned judgment dated 30.08.2016, vires whereof, are being assailed on the ground that in the face of prosecution's failure to establish safe custody as well as transmission of the samples to the office of Chemical Examiner with a duplicate forensic report, in circumstances, there was no occasion for petitioner's conviction. The learned Law Officer has defended the impugned judgment though without much enthusiasm.

2. Heard. Record perused.

3. Prosecution produced two witnesses, namely, Basharat Hussain, Inspector as (PW-1) and Abdul Ghani as (PW-2); the former furnished comprehensive details regarding interception of vehicle along with the contraband and investigative steps taken thereafter whereas the former corroborated his deposition, however, the prosecution unredeemedly failed to establish the essential link of safe transmission of samples to the office of Chemical Examiner as despite opportunity Abdul Hakeem, EC/B-131 who had delivered the samples failed to enter the witness box, leaving the entire case in the lurch. The last straw is prosecution's reliance on a duplicate forensic report Ex.15 to confirm narcotic character of the contraband. Appalling inaptitude of the functionaries tasked to prosecute the crime, awfully heinous in nature, has occasioned the failure to establish a most vital link to drive home the charge, irreversibly vitiated by a duplicate forensic report, inadmissible in evidence, leaving no juridical possibility to maintain petitioner's conviction. Petition is converted into appeal; same is allowed; the impugned judgment is set aside; the appellant is acquitted of the charge and has been ordered to be released if not required to be detained in any other case vide short order of even date. Findings recorded hereinabove shall cast no bearings on the trial of absconding co-accused, to be dealt with independently, after his arrest on the strength of available evidence. The impounded vehicle statedly owned by the absconding co-accused, with no rival claimant till date, shall be disposed of in the manner provided under section 88 of the Code of Criminal Procedure 1898.

MWA/Z-2/SC Petition allowed.