' YAHYA AFRIDI, J.---This Criminal Appeal is directed against the judgment and order dated 6-7- 2012, passed by learned Judge, Special Court/Additional Sessions Judge-V Peshawar, whereby appellant Taj Mali has been convicted under section 9(c) of Control of Narcotic Substances Act, 1997, ("C.N.S.A"), and sentenced to rigorous imprisonment life imprisonment with a fine of Rs.100,000 (one lac), or in default of payment of fine to suffer S.I. For 6 months, in case F.I.R. No.505 dated 13- 10-2011, registered at Police Station, East Cantt. Peshawar ("F.I.R."). Benefit under section 382-B of Criminal Procedure Code, 186.1 ("Cr.P.C.") has been extended to, the convict-appellant.
2. Brief and essential facts of the case according to the F.I.R. Are that Jamal, Inspector Excise, complainant, along with his staff was present on the spot during Naka Band that the complainant received spy information that `Charas' would be smuggled through Motor Car bearing registration No.ACA-149 Sindh ("Vehicle") to Punjab; that in the meantime at 1500 hours the said vehicle came from the side of `Karkhano' Market, which was stopped; that the driver disclosed his name to be Taj Mali Khan son of Mir Zakim Khan, resident of Mohallah Amir Khel, District Bannu; that search of the vehicle led to the recovery of 50 packets of `Charas' from its secret cavities; that on weighing, each packet of contraband was found to be one Kilogram, the total recovered contraband weighed 50 K.Gs; that 5 grams from each packet were separated and sent to FSL for chemical analysis; that the accused was formally arrested.
3. Valuable arguments of the learned counsel for the parties heard and the record perused with their able assistance.
4. To prove its case, the prosecution produced as many as six witnesses; Kamal Hussain, SHO (P.W.1), Naveed Kamal Khan, Inspector Excise, Peshawar (P.W.2), Lal Gul ASI (P.W.3) Mehr All Khan, Circle Inspector (P.W.4), Muhammad Wali Khan, S.I (P.W.5) and Saifullah Khan S.I. (P.W.6).
' To further prove its case, the prosecution also Exhibited 'Murasila' as EA. PA, F.I.R. As Exh.PA/1, Card of Arrest of accused Taj Mali Khan as Exh.P.W.2/2, Application for Police Custody as Exh.P.W.4/2, Application for recording confessional statement as Exh.P.W.4/3, Application to FSL as Exh.P.W.2/3, Application for taking into custody the Vehicle, as Exh.P.4/6.
5.. Before this Court dilate upon the evidence produced by the prosecution and the findings recorded thereon by the trial Court, it would be pertinent to appreciate that C.N.S.A. Is a special law, which the legislature has enacted mainly to curb the menace of narcotics in our country and thus has provided therein special provisions to achieve the said end.
6. One of the main striking features provided in C.N.S.A., which is different from the general principles of safe administration of criminal justice is that the onus to prove the guilt of an accused has not been placed entirely on the prosecution but on the accused to prove his innocence. In this regard, we note section 29 of C.N.S.A., which provides:-- "Presumption from possession of illicit Articles.
' In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused had committed an offence under this Act in respect of;
(a) Any narcotics drugs, psychotropic substance or controlled substance.
7. In reading the aforementioned provision of C.N.S.A., it is clear that the legislature has cast a presumption in favour of the prosecution, which has to be rebutted by the accused to prove his innocence. The judicial consensus, which has developed in our Jurisdiction over a period of time, has clearly held that prosecution cannot be totally absolved of its obligations and duty of initially establishing a 'prima facie' case of recovery of contraband from the accused and only after the said initial burden is discharged by the prosecution that the onus would shifts upon the accused to prove his innocence. In this regard, the apex Court in Muhammad Imran's case (2011 SCM R 1954), has eloquently stated the true purport of section 29 of C.N.S.A., in terms that:- "It is pertinent to mention here that section 29 of C.N.S.A., 1997 cast a duty upon the Court to presume in trial under the Act that the accused has committed the offence under the Act unless contrary is proved. However, firstly, the prosecution has to establish the fact that the narcotic drugs were secured from the possession of the accused. If the prosecution proves the recovery of narcotics from physical custody of accused, then the burden of proving that he was not knowingly in possession of the article is upon him. In the instant case, primarily the onus was upon the prosecution to prove that whatsoever was recovered, were narcotic drugs and the same were recovered from the possession of the appellant. Perusal of the record indicates that the prosecution has failed to prove the initial burden upon it to establish the fact that the narcotic drugs were secured from the possession of appellant."
' Likewise, recently in Ameer Zeb's case (PLD 2012 Supreme Court 380), the principle was reiterated by the august Supreme Court in terms that:-- "The learned Special Prosecutor for the Anti-Narcotics Force has laid great emphasis on the provisions of section 29 of the Control of Narcotic Substances Act, 1997 and it has been maintained by him that the prosecution's allegation that the entire quantity of the substance recovered from an accused person is narcotic substance is to be presumed to be correct and it is for the accused person to prove otherwise. We have, however, refused to subscribe to this submission for the simple reason that in the cases of Kashif Amir v. The State (PLD 2010 SC 1052) and Muhammad Noor and others v. The State (2010 SCMR 927) it has clearly been laid down that the initial onus to prove the offence and recovery of narcotic substance from the accused person is always on the prosecution and once the prosecution has discharged that onus to the satisfaction of the Court is only then that the onus shifts to the accused person to establish falsity of the prosecution's allegation against him. It goes without saying that the initial onus on the prosecution in such cases includes the onus to prove that the entire substance allegedly recovered is in fact narcotic substance and such onus can be discharged by the prosecution only if the samples of the recovered substance sent to the Chemical Examiner for analysis are representative samples of the entire quantity of the recovered substance."
8. Now, keeping the 'ratio decidendi' of the aforementioned judgments as our guiding principle, this Court, on reviewing the evidence produced by the prosecution, finds that the initial burden of establishing a 'prima facie' connection between the appellant and the contraband recovered from him, has not been positively carried out. In this regard, the most crucial links of the chain, which establish the 'prima facie' connection between the appellant and contraband, are missing. The said crucial missing links are that the registration number in the name of the appellant or any other distinguishing feature of the Vehicle, from which the recovery had been made was not recorded in evidence by any of the prosecution witnesses; that the narcotics was sent to FSL vide application Exh.P.W.2/3 on 13-10-2011, having no name of any Constable, while the FSL report Exh.PZ reveals that the samples were received in the Laboratory through Shakeeb No. 1061 R.No.698 on 25-10-2011; that there is no evidence to even suggest where the alleged samples of contraband were stored after their recovery from the plastic bag alleged to have been carried by the accused while travelling in the Vehicle; that how the said alleged samples were received at the FSL Laboratory and the prosecution has not offered any plausible explanation for the delay of twelve days in sending the same for its chemical analysis; that the alleged recovered contraband and Vehicle when produced in Court could not be definitely linked with the case in hand, as per the Court observations. The accumulative effect of all the factors stated hereinabove leads one to state that the initial obligation of the prosecution to make out a case, as per the mandate of section 29 of CNSA has not been carried out in the eyes of law.
9. It seems that the trial Court was influenced by the huge quantity involved in the case and extended every possible benefit to the prosecution, in contrast to the true import of section 29 of C.N.S.A. In such like cases, for the safe administration of criminal justice, law mandates that Courts are to be conscious of not the quantity of contraband, but the quality of evidence produced in the Court for reaching a correct conclusion and just decision of the case.
' For what has been discussed above, the prosecution has failed to prove charge against the present appellant beyond any shadow of reasonable doubt. There are dints in the prosecution case, creating sufficient doubt about the alleged recovery, the benefit of which would go to the appellant. Consequently, this appeal is accepted, the impugned conviction and sentence of the appellant is set aside and he is acquitted of the charges levelled against him. The appellant shall be released forthwith, if not required in any other case.