' Miss Aalia Neelum, J.--Muhammad Sajid son of Zia Ullah, Caste Pathan, resident of Haiderabad, District Bhakkar, the appellant was involved in case F.I.R. No, 339 of 2013, dated 24.12.2013, offence under Section 9(C) of 'the Control of Narcotic Substances Act, 1997, registered at Police Station Kundian, District Mianwali and was tried by the learned Additional Sessions Judge/Special Judge CNSA Court, Piplan. The learned trial Court seized with the matter in terms of judgment dated 25.02.2015, convicted the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to undergo imprisonment for six years R.I. With the direction to pay Rs, 50,000/- as fine and in case of default thereof, further undergo Simple Imprisonment for five months. The benefit of Section 382-B of Cr.P.C. Was also extended in favour of the appellant.
2. Feeling aggrieved by the judgment of the learned trial Court Muhammad Said the appellant assailed his conviction through filing of the instant appeal.
3. The prosecution story as alleged in the F.I.R (Ex.PB) lodged on the complaint (Ex.PA) of Akhtar Nawaz Khan-Inspector/SHO (PW3) is that on 24.12.2013 at about 2:20 p.m., he along with Farooq Ahmad Khan, SI, Muhammad Farooq, ASI, Shafiq-ur-Rehman 782/C, Atta Muhammad 473/C, Liaqat Hayat 951/HC and Muhammad Farman 1491/C was on patrolling duty at Railway Bridge of Thal Canal Kundian. In the meanwhile, two persons riding on a Honda Motorcycle appeared on the site and they turned back on seeing the police party but the police started to chase them. The accused entered into the Jungle to conceal themselves, left their motorcycle and started to run away but one of them was apprehended by the SHO with the help of other police officials, whose name was later on, known as Sajid Khan son of Zia Ullah Khan. On his personal search, three packets of charms (P-1), which was fastened with his belly under his shirt were recovered, which was taken into possession through recovery memo (Ex.PC) and each packet was found one kilogram. Out of the recovered substance, 10-grams 'Charas' was separated from each packet for chemical analyses and made into a sealed parcel. On further personal search of appellant, the Investigating Officer recovered two gold rings (P-2/1 to 2), one mobile phone set (P-3), I.D Card of the appellant (P-4), belt (P-5) vide recovery memo (Ex.PD) and Honda Motorcycle (P-6) through recovery memo (Ex.PE). The complainant (PW-3) drafted the complaint (Ex.PA) and sent the same to the Police Station through Muhammad Farman 1491/C for registration of formal F.I.R. (Ex.PB).
4. Thereafter, the investigation was conducted by Farooq Ahmad Khan, S.I, (PW-4), who recorded the statements of the prosecution witnesses under Section 161, Cr.P.C. And prepared the rough site- plan of the place of recovery (Ex.PF). Having found the accused guilty, the Investigating Officer prepared incomplete challan, while placing the name of the accused in Column No, 3 and sent the same to the Court of competent jurisdiction.
5. The learned trial Court formally charge sheeted the appellant on 07.02.2014, to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as four witnesses. Atta Muhammad 473/C (PW-1) has deposed that on 29.12.2013, Sher Muhammad 445/MHC handed over to him three sealed parcels said to contain charas for onward transmission to the Office of Chemical Examiner, Lahore and he deposited three sealed parcels in the said office on the following day intact, whereas Sher Muhammad 445/HC (PW-2) has stated that on 24.12.2013, he was posted at P.S Kundian as MHC/Duty Officer. On the same day, Akhtar Nawaz Khan, Inspector/SHO (PW-3) sent a written complaint (Ex. PA) through Muhammad Farman 1491/C and he on the basis of the same, chalked out the formal FIR without any addition or omission. On the same day, Farooq Ahmad Khan SI (PW-4) handed over to him four sealed parcels said to contain charas along with other case property for keeping in "Malkhana" for safe custody and on 29.12.2013, he handed over three sealed parcels to Atta Muhammad 473/C (PW-1) for onward transmission to the office of Chemical Examiner, Lahore. Akhtar Nawaz Khan, Inspector/SHO (PW-3) was the complainant of the case, whereas Farooq Ahmad Khan, SI (PW-4) was the Investigating Officer of the case.
6. On 11.02.2015, the learned ADPP has given up PW Liaquat Hayat 951/C being unnecessary and closed the prosecution evidence after tendering the report of Chemical Examiner (Ex.PG).
7. The appellant was also examined under Section 342, Cr.P.C., wherein he opted not to lead defence evidence and also not to appear as his own witness in terms of Section 340(2), Cr.P.C. In disproof of allegation leveled against him and while replying to a question that why this case is against him and why the PWs have deposed against him, the appellant made the following deposition: "PWs are police officials and subordinate of the complainant Akhtar Nawaz and they have falsely deposed against me just to show their efficiency. The complainant of the case Akhtar Nawaz Inspector/SHO has personal grudge against me and due to that grudge he planted a fake recovery of charas upon me and falsely involved me in this false case. The complainant and the police did not show the arrest of accused Tauqir son of Imam Bakhsh with mala fide. I am innocent."
8. After hearing the arguments advanced by the learned counsel appearing on both sides, the learned trial 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.
9. At the very outset, learned counsel for the appellant has contended that the appellant has been involved in false case by the police just to show their efficiency; that all the prosecution witnesses are police officials so there is a clear violation of Section 103, Cr.P.C.; that the occurrence as narrated in the FIR had not taken place at all and that during the course of investigation nothing has been recovered from the possession of the appellant and if any that is fake and fictitious and the prosecution has failed to prove the safe custody of the "Charas" and lastly prayed that he be acquitted from the charge being falsely implicated in this case.
10. On the other hand, Additional Prosecutor General 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 and that the prosecution has proved its case by producing four witnesses beyond any shadow of doubt.
11. We have heard the arguments advanced by the learned counsel for the appellant as well as the learned APG and have minutely perused the record available on the file.
12. After a careful scrutiny of the materials on record, we come to a conclusion that the prosecution has not established "connection of the case property with the parcels of samples deposited with the office of Punjab Forensic Science Agency, Lahore. The seizure of the alleged narcotic substance icharas" is shown to have been made on 24.12.2013 at 2:30 p.m. The samples taken from the seized substance were handed over to Atta Muhammad, Constable (PW-1) by Sher Muhammad, MHC (PW-2) for onward transaction to the office of Chemical Examiner, Lahore on 29.12.2013,
13. The samples sent for chemical examination to the Office of Chemical Examiner were, however, not deposited at the Chemical Examiner Office on the same day i.e 29.12.2013 by Atta Muhammad, Constable (PW-1). Although Atta Muhammad Constable (PW-1) deposed in his Court statement that: "On 29.12.2013 Sher Muhammad 445/MHC handed over to me three sealed parcels said to contain 'charas' for onward transmission to the office of Chemical Examiner, Lahore and I deposited three sealed parcels in the concerned office on the following day, intact."
14. Atta Muhammad, Constable (PW-1) admitted during cross-examination that: "It is correct that I/O did not mention the face of delay in my statement u/S. 161 Cr.P.C."
15. Whereas, on perusal of report (Ex.PG), it reveals that Atta Muhammad, Constable (PW-1) deposited three parcels of samples with the Punjab Forensic Science Agency, Lahore instead of in the office of Chemical Examiner. On the closure of prosecution evidence, statement of the accused under Section 342, Cr.P.C. Was recorded. We have noted that the questions put to the accused in the examination under Section 342 of the Code did not focus on the evidence on record and the accused was therefore prejudiced because Narcotics Analysis Report of Punjab Forensic Science Agency (Ex. PG) was not brought to his notice. Section 342 of the Criminal Procedure Code as follows:-- "342. Power to examine the accused.
(1) For purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witness for the prosecution have been examined and before he is called on for his defence.
(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them, but the Court may draw such inference from such refusal or answers as it thinks just.
(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
(4) Except as provided by sub-section (2) of Section 340, no oath shall be administered to the accused.
16. It is consistent view of the Apex Court that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him.
Non indication of inculpatory material in its relevant facts by the trial Court to the accused adds to vulnerability of the prosecution case.
' The trial Court was bound to ask such question from an accused under Section 342 of Criminal Procedure Code, 1898, which relate to root of prosecution evidence and base for his conviction. The incriminating evidence not put to accused cannot be used against him. There is, thus, no evidence to connect the Narcotics Analysis Report (Exh.PG) of Punjab Forensic Science Agency, Lahore.
17. All these facts evaded the credibility of the deposit of the samples with the office of Chemical Examiner and rendered the case of the prosecution doubtful. The burden always remains on prosecution to prove affirmatively right from the arrest of accused, seizer of the recovered contraband till it reaches the office of Narcotics Analysis/Chemical Examiner. All these facts must be in line but the facts of the present case create doubt on the case of the prosecution and benefit of reasonable doubt always goes to the accused and not to the prosecution. We are of the view that the prosecution has failed to prove its case beyond any reasonable doubt and is cannot be said that the prosecution version is not free from doubt for upholding the conviction and sentence as rendered by the learned trial Court.
18. Accordingly, benefit of doubt is extended to the accused, thus the Criminal Appeal No, 479 of 2015 is allowed and the appellant is acquitted of the charge. The conviction and sentence passed by the learned trial Court vide the impugned judgment dated 25.02.2015 in case FIR No, 339 of 2013, dated 24.12.2013, under Section 9-C of the Control of Narcotic Substances Act, 1997, registered at Police Station Kundian, District Mianwali is set-aside. The appellant-Muhammad Sajid is ordered to be released forthwith from Jail, if not required in any other case.