SARDAR MUHAMMAD SARFRAZ DOGAR, J.- Liaqat Ali son of Mangha, the appellant, was embroiled in case FIR No.1207/2006, dated 23.11.2006, under Section 9(c) of Control of Narcotic Substances Act, 1997, registered at Police Station Khurrianwala, District Faisalabad, and was tried by the learned Additional Sessions Judge, Jarranwala. The learned trial Court seized with the matter in terms of judgment dated 12.3.2008 convicted the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997, and sentenced him to undergo 14 years R.I. Along with fine of Rs.50,000/- and in case of default thereof, further undergo S.I. For four years. The benefit of Section 382-B Cr.P.C.
Was also bestowed upon him. The appellant choosed to assail his conviction and sentence by diarizing this appeal.
2. The prosecution story as alleged in the F.I.R. (Exh.PA/1) lodged by Shujat Ali S.I. (PW-4) is that on the complainant along with other police officials, in connection with patrolling, when reached in front of Mema Cotton Mills, received a spy information that Liaqat Ali (appellant), who is also a notorious drug dealer, is selling charas at Adda Balochni. Responding to the said information, the complainant and other police officials conducted a raid at the relevant place and overpowered the appellant. On his personal search, charas in shape of slabs weighing 50 grams was found from the pocket of his shalwar. On further search wattack amount Rs.1430 and mobile phone were also recovered from the appellant. 10 grams was separated from the recovered charas for chemical analysis. Thereafter, the appellant disclosed that charas was also present in his house whereupon the raiding party reached to the house of appellant where he himself produced six pieces of charas in shape of 'Litters', three packets of charas total weighing 3 kilograms and 605 grams and garda charas total weighing 120 grams. Out of recovery charas and garda charas, 10/10 grams was seperated for chemical analysis. Rs.33570/- were also recovered from the house of the appellant.
3. During investigation, the appellant was found guilty, resultantly, report under Section 173 Cr.P.C.
Was prepared and sent to the court of competent jurisdiction for trial.
4. The learned trail Court formally charge sheeted the appellant, to which he pleaded not guilty and claimed trial. The prosecution, in order to prove its case, has examined as many as five witnesses.
5. By closing the prosecution case, the learned trail Court examined the appellant under Section 342 Cr.P.C. Wherein he professed innocence. In reply to the question why this case against you and why the P.Ws. Deposed against you, the appellant replied as under:- "I was running my shop of T.V., V.C.R. And cassettes at the adda Balouchni T.V., V.C.R. And Cassettes were given to the customers on the rent Basis and same the Police official of police post Balochni.
In the month July 2004 of Shujat Ali Incharge P/p and Abdul Sattar PW took V.C.R., T.V. And Cassettes from my shop on the rent Basis. On the demanding of Rent of T.V., V.C.R. Cassettes Sujhat Ali PW-4 and Abdul Satar P3 threatened me to Ruin. Spoiled his future. So on the basis of grudge Shujat Ali PW-4 and Abdul Satar PW3 involved me in a criminal cases.
In case FIR No.803/04 P.S. Khurrianwala offence U/S 9-B Control of Narcotic Substances Act, 1997 and case FIR No.804/04 offence U/S 9/C CNSA that the FIR No.804/04 offence U/S 9-C CNSA P/S Khurrianwala was quashed by the honourable Lahore High Court in case FIR No.803/04 offence U/S 9.B, on P/S Khurianwala the learned trail Judge acquitted me vide his order dated 17.5.2005.
After that PW-4 Shujat Ali was transferred from Police Post Baluchni to another's police station.
Again Shujat Ali PW-4 was posed at police station Khurrianwala as Sub Inspector.
That Pw3 Abdul Sattar is very close to Pw4 Shujat Ali. Both the Pw4 have grudged against me. So on the basis of grudged. They involved me falsely implicated in the care nothing was recovered from me. Fake recovery has been planted upon me by the police and prosecution story is totally convicted private persons who have been sited as pws in the calendar of winters. Both are stock witness hence the prosecution did not produce them as Pws in their evidence.
I am innocent I may very kindly be acquitted."
The appellant neither opted to appear as his own witness in terms of Section 340 (2) Cr.P.C.
However, he produced Muhammad Yosuaf as DW-1 in defence evidence.
6. After hearing the arguments advanced by the learned counsel appearing on both sides, the learned trail court, while evaluating the evidence available on record, found the version of the prosecution as correct beyond any shadow of doubt, which resulted into conviction of the appellant in the above stated terms.
7. It is argued by learned counsel for the appellant that the appellant has falsely been entangled in this case by the police just to show their progress; that there is glaring contradictions in the ocular account, which clearly reflects that the convictions judgment of learned trail Court is passed on wrong premises of law and facts, hence is based on misreading and non-reading of evidence.
Further adds that on the basis of said material contradictions and discrepancies no conviction can be awarded to the appellant. He prays for acquittal of the appellant.
9. On the other hand, learned Law Officer has opposed the contention raised on behalf of the appellant and stated that in view of the quantity of recovered narcotic substance, the learned trial Court has rightly convicted the appellant.
10. We have heard the arguments advanced by the learned counsel for the appellant as well as learned Law Officer and have minutely perused the record available on the file.
11. From perusal of the record, we are of the considered view that the prosecution has failed to prove the safe custody of the case property. As per complaint (Exh.PA) the complainant (PW-4) recovered the contraband charas and grada charas from the possession of appellant in two episodes, firstly 50 grams charas at the time of arrest of appellant out of which 10 grams was separated for chemical analysis and sealed into a parcel. Secondly, from the house of the appellant produced 3 kilograms and 605 grams charas and 120 grams garda charas, out of which 10 grams from charas and 10 grams from garda charas was separated for chemical analysis and sealed into a parcel. In this way, the complainant obtained three sample parcels, two of charas and one of garda charas. Rest of the recovered contraband was also sealed into parcels. Whereas, Muhammad Ashraf 517/H.C. (PW-5) deposed that on 23.11.2006, Investigating Officer handed over to him two sealed parcels containing charas and one sealed parcel containing garda for safe custody in Malkhana. Meaning thereby the Investigating Officer/complainant has not handed over the parcels of case property to the Moharrar and thus the prosecution has failed to prove the safe custody of the case property.
12. The Moharrar (PW-5) further deposed that on 27.11.2006, he handed over the said parcels to Khadim Hussain for onward transmission to the office of Chemical examiner at Lahore in tact.
Khadim Hussain entered appearance as PW-2 and deposed that he deposited the said parcels in the office of Chemical Examiner Punjab Lahore in tact. Contrary to the above, the reports of the Chemical Examiner (Exh.PF to Exh.PH), however, shows that the docket of the samples of the recovered substance had been prepared on 27.11.2006 and the said samples had been dispatched by the Excise and Taxation Office Faisalabad and not by the local police. We have required the learned counsel for the State to explain as to how the samples of the recovered substance had come in the hands of the Excise and Taxation Officer, Faisalabad and what was the evidence available on the record to confirm that the same had been kept in safe custody while in possession of the Excise and Taxation Officer, Faisalabad but after going through the record of this case from cover to cover he has failed to explain the same as there is no evidence whatsoever available on the record in those respects. Guidance is sought from Muhammad Abbas v. The State (2006 YLR 2378). The relevant extract from the said judgment is reproduced as under:- "The report of the Chemical Examiner (Exhibit-PE), however, shows that the docket of the samples of the recovered substance had been prepared on 6.7.1998 and the said samples had been dispatched by the Excise and Taxation officer, Sheikhupura and not by the local police. We have required the learned counsel for the state to explain as to how the samples of the recovered substance had come in the hands of the Excise and Taxation Officer, Sheikhupura and what was the evidence available on the record to confirm that the same had been kept in safe custody while in possession of the Excise and Taxation Officer."
In view of the above quoted dictum and the evidence available on the record, safe custody of the recovered substance or its samples is not discernable from the record of this case and, thus, we have found it to be extremely unsafe to uphold and maintain the appellant's conviction and sentence recorded by learned trail Court.
13. Another important aspect of the case is that according to the prosecution, in the second episode of recovery the charas was found in shape of slices (chittars), but the complainant (PW-4) separated only 10 grams for chemical analysis, which does not meet with the requirement of the dictum laid down by the Hon'ble Supreme Court of Pakistan in the case of Ameer Zeb v. The State (PLD 2012 Supreme Court 380) wherein it has been observed as under:- "that if no sample is taken from any particular packet/slab or if different packets/slabs and not kept separately for their analysis by the Chemical Examiner, then the sample would not be a representative sample."
It is also observed by their Lordships of the Hon'ble Apex Court in Ameer ZebIs case (supra) that:- "that is necessary that a separate sample is to be taken from every separate packet, wrapper or container and from every separate cake, slab or other form for chemical examiner and if that is not done that quantity of narcotic substance is to be considered against accused person from which a sample was taken and tested with positive results."
It is also held by the Hon'ble Supreme Court of Pakistan in the case reported as Mst.Nasreen Bibi v.
The State (2014 SCM R 1603) that:- "----In the case in hand only one consolidated sample of five hundred grams had been secured and tested and, thus, only one bag out of the four bags recovered could be counted towards the appellant's guilt. If four bags contained forty kilograms of poast then one bag could be said to have contained ten kilograms of poast and it is only that quantity which could be considered against the appellant for the purposes of her conviction and sentence."
12. Following the dictum laid down by the Hon'ble Supreme Court of Pakistan in the above cited case, we are of the view that the prosecution has failed to prove its case against the appellant and the impugned judgment of the learned trail Court regarding conviction and sentence of the appellant is based on wrong premises of law and facts and is liable to set aside.
13. For the reasons stated hereinabove, instant Criminal Appeal is allowed and the impugned judgment dated 12.3.2008 is set aside and the appellant is acquitted of the charges. Appellant is on bail. His surety stands discharged.