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Official Citation: 2025 SHC 592
Court / Jurisdiction: Sindh High Court
Year of Decision: 2025
Decision Date: 2025-04-29
Parties: Inayat son of Abdullah Samo vs The State
Ruling Summary: This decision was rendered by the Sindh High Court on 2025-04-29, officially reported as 2025 SHC 592. In this matter between Inayat son of Abdullah Samo and The State, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2025SHC592
Court Name: Sindh High Court Judge(s): Arshad Hussain Khan, Dr. Syed Fiaz ul Hasan Shah Title: Inayat son of Abdullah Samo vs The State Case No.: Criminal Appeal No.D-151 of 2023 Date of Judgment:2025-04-29 Reported As: 2025 SHC 592 Result: Appeal Allowed
JUDGMENT
JUDGMENT Dr. Syed Fiaz ul Hassan Shah, J: Through this appeal, the appellant has sought acquittal from the Judgment of conviction dated 30.11.2023 passed by the learned Model Criminal Trial Court- I/Special Judge Control of Narcotics Substance Act, Hyderabad in Special Case No.98 of 2023 arising from the Crime No.06 of 2023 under section 9 (i) 3-C, CNS Act, registered at PS Budhani, District Hyderabad, whereby the appellant has been convicted for offence punishable under section 9(c) of CNS Act, and sentenced to undergo Rigorous Imprisonment for nine years and to pay fine of Rs.80,000/- (eighty thousand), in default of payment thereof to further undergo SI for three months, extending him benefit of section 382-B, Cr.P.C. 2. The relevant facts of the prosecution's case are that on 23.06.2023, SIP Mubarak Lashari of Police Station Budhani, Hyderabad, along with PC Riaz Ahmed, PC Akbar Ali, and PC Amjad Tayyab, departed from the police station for area patrolling and crime prevention duties via police mobile, as per departure entry No. 18 of the roznamcha at approximately 2100 hours. During patrolling at various locations, they reached Gul Khan Petrol Pump, Budhani, Hyderabad, where they received a tip-off that one Inayat Samo, along with three accomplices, was in possession of a large quantity of narcotics including charas, manpurries, raw material for the preparation of manpurries, and Gutka Mawa. They were reportedly waiting for a vehicle in the street adjacent to Inayat Samo s house located in Talib-ul-Mola Colony, Budhani Hyderabad, to transport the aforementioned items. Acting upon this information, the police party proceeded to the pointed location, i.e., a common street near the residence of the accused, Inayat Samo. There, they observed four individuals holding black-colored shopping thailies, with several "kattas" lying in front of them. Upon sighting
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the police vehicle, the individuals appeared confused and attempted to flee. The police team disembarked, surrounded the area, and apprehended one individual at approximately 2200 hours. The remaining three individuals managed to escape under the cover of darkness, discarding their bags on the spot. They were identified as Khan Muhammad alias Khanoo, Abdul Rehman alias Porhal Majeedano, and Naveed Memon. Due to the unavailability of public witnesses, SIP Mubarak Lashari appointed ASI Ziauddin Shah and HC Riaz Ahmed as official mashirs for the arrest and recovery proceedings. Upon inquiry, the arrested individual disclosed his name as Inayat Samo, son of Abdullah Samo, and a resident of Talib-ul-Mola Colony, Budhani, Hyderabad. SIP Mubarak Lashari recovered a black-colored bag from the possession of Inayat Samo, which upon inspection, was found to contain two patties of charas.Additionally, a small piece of charas was recovered from the side pocket of his shirt, along with cash amounting to Rs. 400 in various denominations. The recovered charas was weighed using an electronic scale and found to be 1500 grams. Furthermore, the police examined the three black bags thrown by the absconding accused. The bag attributed to Khan Muhammad alias Khanoo contained two patties and a small piece of charas weighing 1060 grams. The bag belonging to Abdul Rehman alias Porhal contained two patties and a small piece of charas weighing 1040 grams. The bag associated with Naveed Memon held two patties and a small piece of charas, weighing 1200 grams. Additionally, the "kattas" found at the location were searched. Six "kattas" contained crushed nuts (choora), weighing 76 kilograms. One "katta" contained 22 kilograms of raw material used in the preparation of supari and manpurries. Two "kattas" contained lime (choona), while seven "kattas" held 471 Ragni Gutka packets. Another "katta" held 100 Boss Gutka packets. Furthermore, three bottles contained lime, and three plastic tubs, one electronic scale, 12 "kattas" of wrappers weighing 257 kilograms, and 200 prepared manpurries were also recovered. Upon further inquiry, the arrested accused, Inayat Samo, confirmed the identities of the absconding co-accused as his accomplices: Khan Muhammad alias Khanoo, Abdul Rehman alias Porhal, and Naveed Memon. All recovered items were sealed on the spot for chemical examination. The mashirnama of arrest and recovery was prepared by SIP Mubarak Lashari in the presence of his subordinates, ASI Ziauddin Shah and HC Riaz Ahmed. Subsequently, the police party, along with the arrested accused and case property, returned to Police Station Budhani, Hyderabad. SIP Mubarak Lashari recorded the arrival in the roznamcha and registered FIR No. 06 of 2023 under Section 9-1(3-C) of the CNS Act against the accused persons on behalf of the State. A separate FIR under Sections 336-B, 337-J of the Pakistan Penal Code (PPC), and Section 8 of the SPPMSGMA was also registered against the same accused persons. 3. Upon completion of the usual investigation, the Investigating Officer submitted the challan against the accused persons, namely Inayat Samo, Khan Muhammad alias Khanoo, Abdul Rehman alias Porhal, and Naveed Memon for their trial before the competent court. Subsequently, the accused Khan Muhammad alias Khanoo, Abdul Rehman alias Porhal, and Naveed Memon, after securing pre-arrest bail, also joined the proceedings and became part of the trial. 4. The requisite documents of prosecution file were provided to the Accused/Appellant by the trial Court as required under section 265-C of the Cr.P.C. at Exh.1. Subsequently, the trial Court has framed the "Charge" against the Appellant and others at Exh.2. The accused persons pleaded not guilty and claimed for fair trial, vide their pleas at Exh.2/A to Exh.2/D respectively. 5. During the trial, the prosecution has presented evidence to support the charge and to prove the allegations against the Appellant / accused. P.W-1 SIP Mubarak Ali Lashari who is the Raiding Officer, Arresting Officer, Recovery Officer, Complainant and Investigation Officer of the case has testified at Exh.3, he had produced various documents, including roznamcha entries, arrest and recovery memo, the FIR, the site inspection memo, a letter to SDPO/DSP Chalgiri, a sample receipt, letters to the chemical examiner and the in-charge CRO, the criminal records of the accused, and
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the chemical report, marked as Exh.3/A to Exh.3/L respectively. The P.W-2 ASI Ziauddin Shah, who is witness of event and Mashir had testified at Exh.4 but he did not produce any material. The P.W-3 WHC Akram Gill, Incharge Malkhana (Store Room of Police Station) had testified at Exh.5 and submitted malkhana Entry No.6 from register No.19, which was marked as Exh.6/A. 6. Afterwards, the prosecution side was closed at Exh.7 through the ADPP. Thereafter, the statements of the accused under Section 342 of the Cr. P.C was recorded at Exh.8 to Exh.11. In these statements, the accused denied all allegations made by the prosecution and asserted their innocence. The accused persons, in their statements under Section 342 Cr.P.C, opted not to testify under oath as per Section 340(2) Cr.P.C, nor did they call any defense witnesses despite being given the opportunity. However, while answering to question, appellant Inayat stated that on 23.06.2023, he was going to his house at 03:00 p.m. and during the way, police mobile of police station Hatri, stopped him and demanded money/bribe, but he refused to pay whereof police has apprehended him and handed over his custody to police station Budhani, Hyderabad and booked him in this false case as he had previous enmity with the police of police station Budhani. He had some shops at Budhani Bus stop, Hyderabad. He claimed to be innocent and stated nothing was recovered from his possession as alleged. 7. After conclusion of trial and hearing the State Prosecutor and the Counsel for Defence, the learned trial Court convicted and sentenced the Appellant as referred at paragraph-1 hereinabove. The Appellant has impugned the said judgment of conviction before us which was passed on 30.11.2023 and prayer for setting it aside and acquit the Appellant from the charge. 8. The learned counsel for Appellant/accused argued that on the same set of evidence, the learned Trial Court has been acquitted three accused person ignoring the complainant and mashir inconsistent statements on key points. He further stated that there was a violation of Section 103 Cr.PC regarding the recovery of the alleged contraband and that the parcel was sent to the chemical laboratory three days after the recovery, breaching Rule 4 of the Control of Narcotic Substance (Government Analysts) Rules 2001. Additionally, the counsel claimed that the police falsely implicated the accused due to his existing enmity with PS Budhani Hyderabad and on the alleged day of incident, he was asked to pay bribe but he refused hence booked in this false case. Furthermore, the prosecution allegedly failed to establish any link between the accused and the recovered items and could not prove the case beyond reasonable doubt. Finally, the counsel prayed the court to acquit the accused. 9. On the other hand, the A.P.G while supporting the impugned judgment has contended that the prosecution by examining prosecution witnesses and producing positive chemical examiner`s report has proved its case beyond reasonable doubt and the presence of the Appellant has not been denied at crime scene even no enmity has been proved against the police and the testimonies of prosecution s witnesses remain consistent on material points, as such the prosecution has proved its case beyond reasonable doubt and the trial Court has rightly convicted the Appellant and the present appeal is liable to be dismissed. 10. We have heard the Counsel for Appellant and the APG for State and with their assistance perused the evidence brought on record. 11. The first glaring contradiction surfaced out that as per FIR, Challan / charge sheet so also according to Memorandum of Recovery, Arrest and Seizure, on 23.06.2023, a police party Headed by SIP Mubarak Ali Lashari accompanying staff ASI Zia-uddin Shah, HC/602 Riaz Ahmed, PC/2441 Akbar Ali PC/3232 Muhammad Tayyab through Station diary No.18 around 2100 hours were patrolling in a private car and during snap checking, they had received spy information about the Narcotics. During testimony on oath before the trial Court, the P.W-1 Mubarak Ali Lashari, who has had four character in the present case (Raiding Officer / Seizing Officer / Arresting Officer, Complainant and Investigation Officer of the present case) has deposed in a manner utter
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opposite to what is logically stated in the Memorandum of Recovery & Arrest, FIR and Police Report. He deposed that: "On 23.06.2023 I was posted at police station Budhani, Hyderabad and on the same date, I along with PC Riaz Ahmed, PC Akbar Ali and PC Amjad Tayyab left police station for area patrolling and prevention of crimes through police mobile, vide departure roznamcha entry No.18 at about 2100 hours". On the same line, the PW-2 Ziauddin Shah, who is the mashir and witness of event deposed that: "On 23.06.2023 I was posted at Police station Budhani, Hyderabad and on the same date, SIP Mubarak Ali Lashari along with me, PC Riaz Ahmed, PC Akbar Ali and PC Amjad Tayya b left police station for area patrolling and prevention of crimes through police mobile, vide roznamcha entry No.18 at about 2100 hours It was a grey colour car through that police arrived on the spot and it was belong to SIP Mubarak Lashari, however, I do not know its registration number and the registration number/colour of the car has not been shown in the memo of arrest and recovery. That car was driven by SIP Mubarak Lashari. It is fact that I am subordinate of SIP Mubarak Ali Lashari". The PW-01 (Raiding Officer, Recovery Officer, Complainant so also the Investigation Officer of the case in hand) and PW-02 (Mashir and eye witness) have controverted the contents of Memorandum of Recovery, FIR and Police Report in their testimony on oath in the manner that it has triggered out contradiction on the means of transport used for raid, recovery and brining the case property at police station. The PW-1 and PW-2 have not confirmed the contents of Memorandum of Recovery, FIR and Police Report in their testimony that they have used private car (although without its description, registration number or color) on the contrary both witness of event deposed that they have headed for patrolling in Police Mobile and this statement on oath rebutted the contents of Memorandum of Recovery, FIR and Police report and so also clouded shadows of doubt about the handling of case property from the crime scene to the police station and it cannot believe that as which of mode or means of transport were used to rely on the momentous recovery and initial handling and safe custody of case property until it has allegedly brought at the police station for further proceedings. 12. Another contradiction appears in the testimony of the PW-01 and PW-02 is about the manners of arrest of the Appellant/Accused. The PW-1 deposed; "On seeing the police mobile, they became confused and tried to escape. Police party alighted from police mobile, encircled and apprehended one person at 2200 hours and three persons were succeeded to make their escape good while taking an advantage of darkness and throwing their respective thailies on the spot." The PW-2 Ziauddin Shah, in his testimony has deposed: "Police parked the vehicle at right side in the street of Talib Mola colony. The escapee accused were chased by me along with SIP Mubarak Lashari, PC Akbar, HC Riaz and PC Tayyab apprehended the accused Inayat Samo. SIP Mubarak Lashari has conducted the search of apprehended accused Inayat Samo and at that time I was standing with SIP Mubarak Ali Lashari." The deposition of PW-2 about chasing the Appellant and subsequently recovery from him has become doubtful as according to the prosecution rest three accused on viewing Police party had thrown away the narcotics while running out as such same view can conveniently be formed about the present Appellant in view of evidence of PW-02 that the Appellant has also run away and had chased but he had not thrown away Narcotics while the evidence of PW-1 states that the Appellant was arrested on spot had become gross contradictory and have doubted the direct arrest and recovery from the spot at crime scene. 13. Doctrine of safe custody and safe transmission--Now moving towards the essential question of safe custody and safe transmission of the case property. 14. The first dent in the prosecution story is the evidence of P.W-1 Mubarak Ali Lashari, the Raiding Officer/Seizing Officer/Complainant deposed: "I secured/recovered one black colour thaili (shopper) from front fold side of his shalwar which I opened, checked and found chars in shape of two plates types patties therein. I also secured one small piece of chars from side pocket of
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his shirt besides cash Rs.400/-... The piece of secured chars of accused Inayat Samo were weighed through electronic scale which became 1500 grams." We are lost to understand that a person having 1.5 KG weight of Narcotics folded in his shalwar and that too he ran away with it while the police party has chased him and arrested him while his 03 accomplice run away by throwing chars. 15. Secondly, according to PW-1 the seized Narcotics/chars comprised three pieces, however, weight and description of each piece has not been mentioned in Memorandum of Recovery Exh.3/C or in FIR Exh.3/B or in the letter to Chemical Lab Exh.3/G or even in Chemical Report Exh.3/L. On the other hand, the evidence of PW-1 in his cross-examination about the specific details of 04 parcels connecting 04 Accused (including Appellant) is also unbelievable to a prudent man especially the position of escaped accused at crime scene so also the exact location of thrown away narcotics of each accused have not documented or referred in Map of crime scene or deposed in Examination in Chief by said PW-01 and only explained in cross which hit under doctrine of improvement. Furthermore, PW-1 admitted that it was dark night and none of the Mashir has supported the statement of PW-1 which he has deposed: "I saw the accused Khan Muhammad alias Khanoo, Naveed Memon and Abdul Rehman alias Porhal in the headlights of vehicle when they threw the polythene bags on the spot and ran, hence, I identified their shoppers/polythene bags when secured from the place of incident and such fact has not been mentioned in detail in the contents of the FIR as well memo of arrest and recovery.....". The self-admission in the later portion of above evidence by the PW-1 that descriptions of thrown away narcotics by other 3 accused, in a dark night, was not documented, is also creating story of prosecution as doubtful. 16. The third tragedy with the prosecution case is again the evidence of PW-1 who is the Raiding Officer / Seizing Officer / complainant and the Investigation Officer has shown complete ignorance as to when and on which date and time and under what document he has received the case property from the Chemical Lab and how and under what manners it has been entered in the Malkhana finally before producing in the trial Court during evidence. The P.W-1 Mubarak Lashari has deposed: "It is fact that the sealed case property parcels do not bear the dates thereon under my signatures Accused Inayat Samo and the secured chars were brought to police station through car, however, the remaining properties of crime number 7/2023 was shifted to police station through one loading Suzuki, in which HC Riaz was boarded....I do not remember when the chemical examiner report was recovered. I do not remember the entry number of police station Budhani, consequence thereupon the chemical examiner report was received along with case property. It is fact that in an entry No.6 of register No.19, the date of receiving the chemical examiner report along with case property after its examination to the office of chemical examiner Karachi has not shown." 17. On the other hand, to establish continuity of safe custody, the evidence of P.W-3 Akram Gill / WHC Malkhana Incharge is not supportive. He deposed: "On 26.03.2023, vide entry No.13/0630 hours SIP Mubarak Ali Lashari has received the parcels of case properties from me for depositing the same in the office of chemical examiner Karachi." In his cross examination, he has not supported the prosecution while answering to questions: "I received the case property(s) of FIR No.6/2023 and FIR No.7/2023 respectively. Against an entry No.6/2023 of register No.19 I received the case property(s) of FIR No.6/2023. It is fact that column No.6 of entry No.6, register No.19 is blank. On 26.6.2023, SIP Mubarak Lashari has taken the case property parcels from malkhana of crime No.6/2023 for depositing the same in the office of chemical examiner Karachi. I do not know the date when the case property parcels were returned to police station after chemical examination. I did not produce an entry of police station/malkhana of register No.19, consequently the case property(s) of crime No.6/2023 was returned to police station after
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chemical examination It is fact that entry No.6 of register No.19 does not bear the signature of SIP Mubarak Ali Lashari." 18. We have noticed that in the evidence of P.W-3 typed page-42 of the paper book, wherever the word case property has been used, there is addition of handwritten word "parcels" at three different places and there is no signature of the learned Presiding Officer are available for addition through his handwritings. The prosecution has failed to move proper application to rectify the addition of hand written words without any initial signature of Presiding officer. 19. We have also scanned minutely the Ex.05/A produced by P.W-3 which is an Entry dated 26.06.2023 of Register No.19. We have further noticed that the prosecution has failed to prove the save custody of case property after the said case property was returned by the Chemical Laboratory, Karachi. There is nothing on record to demonstrate that on which day or time the case property has been returned from the Chemical Laboratory Karachi and redeposited in the Malkhana. Similarly, no details or documents have produced by the Prosecution that may establish that the case property was taken out from the Malkhana and produced before the Trial Court. The Entry dated 26.06.2023 of the Register No.XIX has only last reference that the case property was sent to Chemical Laboratory Karachi, however, no reference is available in Register XIX or any other documents that the case property was returned back from the Chemical laboratory to the Malkhana and it was kept in Malkhana until produced before the trial Court. Therefore,the prosecution has failed to prove the save custody and save transmission of case property from collection from the crime scene, deposit into Malkhana and transmission to Chemical Laboratory and its subsequent return from Chemical Laboratory and production before the Court and no departure or arrival entry or the entry in the Register No.19 or any other document has produced by the prosecution to prove the safe custody and safe transmission. 20. On the contrary, the admission of Raiding Officer / Seizing Officer / Complainant and Investigation Officer that there is no reference in the Register No.19 with regard to receiving of chemical examination report and case property at the police station which demonstrates that the case property produced in Court vide Article P/1 to P/4 is not the same which was earlier sent to the Chemical Laboratory and it cannot be safely relied upon in the safe Administration of Justice. Even no Road certificate as required under the Police Rules, 1934 to carry out case property from the Malkhana to the Chemical Lab or vice-versa has been produced which put another dent in the case of prosecution. 21. We are mindful to hold that it was the prime duty of the Investigating Officer to enter the factum of handing over the case property as well as sealed sample parcels and other recovered articles from the possession of Appellant in the relevant register of police station i.e. register No.2 but the same was not done in the present case which proved fatal to the prosecution case. The first provision of law relating to daily diary is section 44 of the Police Act, 1861 which is hereby reproduced as under for ready reference: Section 44 in [The Police Act, 1861] 44. Police- officers to keep diary: It shall be the duty of every officer in charge of a police station to keep a general diary in such form shall, from time to time, be prescribed by the Provincial Government and to record therein all complaints and charges preferred, the names of all persons arrested, the names of the complainants, the offences charged against them, the weapons or property that shall have been taken from their possession or otherwise, and the names of the witnesses who shall have been examined. The Rule 22.48 of the Police Rules 1934, Rule 22.48 pertains to Register No.II: Register No. II. - (1) The Daily Diary shall be maintained in accordance with section 44 of the Police Act. It shall be in Form 22.48(1) and shall be maintained by means of carbon copying process. There shall be two copies. One will remain in the police station register and the other shall be dispatched
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to a Gazetted Officer to be designated by the Superintendent of Police or to the Superintendent of Police himself every day at the hour fixed in this behalf. Shortly before the close of each quarter, books containing the proper number of pages for the ensuing three months shall be issued to police stations by the Superintendent. The Superintendent shall fix the hours at which station diaries shall be daily closed with reference to the hour of dispatch of the post or messenger. (2). The daily diary is intended to be complete record of all events which take place at the police station. It should, therefore, record not only the movements and activities of all police officers, but also visits of outsiders, whether official or nonofficial, coming or brought to the police station for any purpose whatsoever. (3) All entries in the station diary shall be made by the officer in charge of the police station or by the station clerk. Literate officers making a report shall read the report re-corded and append their signatures. Every matter recorded in such diary shall be so recorded as soon as possible; each separate entry shall be numbered and the hour…
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