'Sardar Muhammad Sarfraz Dogar, J.--By virtue of this appeal under Section 48 of the Control of Narcotic Substances Act, 1,07, the State has questioned the tires of judgment dated 21.3.2000, passed by learned Judge Special Court CNS, Faisalabad, whereby, he acquitted the respondent bestowing upon him benefit of doubt in case FIR No, 27/2007, dated 15.9.2007, under Section 9(c) of Control of Narcotic Substances Act, 1997, registered at Police Station ANF, District Faisalabad.
2. According to the prosecution case as set forth in the F.I.R. (Exh.PC/1) is that on receipt of an information to the high-ups of ANF, a raiding party headed by Siddique Gohar Khan A.D. Was constituted, to conduct raid upon Chand Medical Store situated at Subhan Allah Chowk Ghulam Muhammadabad, Faisalabad owned by the respondent. On 15.9.2007, at about 7:00 A.M. The raiding party reached at the said Medical Store and person standing there was apprehended, who disclosed his name as Ali Asghar. During interrogation, said Ali Asghar produced a carton containing 50 bottles of concentrated opium liquid total weighing 5 kilograms to the raiding party.
Out of recovered bottles, one bottle was separated for chemical analysis. Resultantly, Jahangir Khan Inspector/SHO (PW-2) drafted the complaint (Exh.PC) and sent it to the Police Station through Zakir Hussain constable for registration of criminal case.
3. After the registration of the FIR, the investigation was also regulated by Jahangir Khan Inspector (PW-2), who, after the usual investigation finding the respondent guilty submitted the challan/report under Section 173, Cr.P.C. In the Court of the competent jurisdiction.
4. The learned trial Court after compliance of provision of Section 265-C, Cr.P.C. Framed the formal charge against the respondent to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case has examined as many as four witnesses. Muhammad Arshad constable (PW-1) transmitted the sample parcel to the office of Chemical Examiner, Lahore. Jahangir Khan Inspector (PW-2) was the complainant as well as Investigating Officer of the case. Muhammad Shafique H.C. (PW-3) was the witness of recovery and Numaan Ghous S.I. (PW-4) chalked out formal FIR and also deposed about safe custody of sample parcel and case property. The prosecution has also produced report of Chemical Examiner (Exh.PG) in documentary evidence.
5. At the conclusion of prosecution evidence, learned trial Court recorded the statement under Section 342, Cr.P.C. Of the respondent wherein he denied each and every piece of prosecution evidence while pleading his innocence. The respondent did not opt to make any statement on oath in terms of Section 340(2), Cr.P.C. However, he produced copy of order dated 04.11.2008 passed by the Hon'ble Supreme Court of Pakistan in criminal petition No, 215 th of 2008 as Exh.DA in defence evidence.
6. 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 tainted with shadow of doubt, which resulted into acquittal of the respondent.
7. The learned Law Officer argued that a huge quantity of contraband has been recovered from the possession of the respondent and the prosecution has proved its case beyond any shadow of doubt by way of advancing cogent, reliable, confidence inspiring evidence but the learned trial Court has not appreciated it in accordance with the law. Further adds that the impugned acquittal judgment is passed on wrong premises of law and facts being based on misreading and non- reading of evidence, thus, liable to be set aside and the respondent may be convicted and sentenced accordingly.
8. Arguments heard. Record perused.
9. After careful scrutiny of the material available on the record, we come to the conclusion that the prosecution has failed to establish its case beyond any reasonable doubt as the reports of Chemical Examiner regarding recovered substance are contradicted to each other. Firstly, the sample was sent on 17.9.2007 by the Moharrar through Muhammad Arshad constable (PW-1) to the office of chemical examiner for its analysis and its result was received through report of Chemical Examiner (Exh.PE) dated 30.10.2007 that Opium Alkaloids detected in the above article. Record also reflects that in compliance of this Court's order dated 14.4.2008, Muhammad Shafique H.C. (PW-3) separated one bottle from carton (P-1) as sample and handed over the same to Muhammad Maqbool constable for its onward transmission to the office of Chemical Examiner for determination of percentage report of the opium recovered from the respondent. The report of Chemical Examiner (Exh.PG) with regard to the second sample reflects that the sample contains opium Alkaloids detected in the above syrup, with active ingredient Morphine is estimated as 0.31%/100 ml (Zero point three one gram percent per hundred ml) .
10. Muhammad Shafique H.C. (PW-3) deposed that he separated one bottle from carton (P-1) as sample and handed over the same to Muhammad Maqbool constable. No doubt the second sample was sent to the office of Chemical Examiner by the orders of this Court but the fact remains that there is nothing on record to establish that in whose presence the case property was de- sealed and second sample was obtained. Mere deposition of PW-3 is not sufficient to prove the safe custody of case property. The testimony of PW-3 leads us to draw an inference that the prosecution has failed to establish the safe custody of recovered substance, which create serious doubts, therefore, no implicit reliance can be placed on such type of evidence. In absence of any concrete evidence that after alleged recovery of substance so recovered with either kept in safe custody or that samples were taken from recovered substance had safely been transmitted to office of Chemical Examiner without the same being tampered with or replaced while in transit, the prosecution case cannot be proved. Guidance is sought from Ikramullah and others v. The State (2015 SCM R 1002)
11. Furthermore, the second proviso of Section 516-A, Cr.P.C. Deals with the property which is dangerous drug, intoxicant, intoxicating liquor or any of the narcotic substance which is seized or taken into custody under the Dangerous Drugs Act, 1930 (II of 1930), ft the Custom Act, 1969 (IV of 1969), Prohibition (Enforcement of Hadd) Order 1979 (P.O. IV of 1979) or any other law for the time being in force. At this stage it will be expedient to reproduce the second provision of Section 516-A, Cr.P.C. As under:- "Provided further that if the property is dangerous drug, intoxicant, intoxicating liquor or any other narcotic substances seized or taken into custody under Dangerous Drugs Act, 1930 (II of 1930), the Custom Act, 1969 (IV of 1969), the Prohibition (Enforcement of Hadd) Order 1979 (P.O. IV of 1979) or any other law for the time being enforce, the Court may, either on an application or of its own motion and under its supervision and control, obtain and prepare such number of samples of the property as it may deem fit for safe custody and production before it or any other Court and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf."
The quoted provision of law empowers the Court to order suo motu or on an application of any party and under its supervision and control, to obtain and prepare samples of the property. But in the instant case, PW-3 at his own prepared the second sample of case property and sent it to the office of chemical examiner through Muhammad Maqbool constable. It is important to note that the prosecution has not produced said Muhammad Maqbool constable before the learned trial Court to prove the safe transmission of second sample parcel to the office of chemical examiner.
The above act of the prosecution casts serious doubts with regard to the culpability of the respondents in the instant case and thus falsifies the prosecution case.
12. In the attending circumstances, we have considered view that the reports of chemical examiner does not carry any weight especially in absence of any evidence with regard to the safe custody of recovered substance and safe transmission of samples to the office of Chemical Examiner and material illegality while preparing of second sample parcel. Guidance is sought from Mst.Fatima v.
The State (2002 P.Cr.L.J. 32).
13. In the considered opinion of this Court, the aforesaid material illegalities are glaring violation on the part of prosecution and contradictions considered cumulatively do lead to an irresistible inference that the prosecution has not been able to prove its case beyond any reasonable doubt through material and cogent evidence.
14. So after a due consideration of the facts and circumstances of the case and the points discussed above we come to the conclusion that the prosecution has not been able to prove the charge levelled against the respondent. Since there was inherent illegality in the matter, therefore, the findings of the learned trial Court in this regard are up to the mark and the learned trial Court has rightly acquitted the respondent by giving him benefit of doubts.
15. It is cardinal principle of criminal law that prosecution remains under heavy burden to prove the charge against the accused beyond any shadow of doubt, whereas in the instant case it has failed to do so. For giving the benefit of doubt, it is not necessary that there should be many circumstances creating doubts. Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit as held in the case of Muhammad Akram v. The State (2009 SCM R 230).
16. The learned trial Court while appreciating the prosecution evidence in a invigorative manner has rightly acquitted the respondent given benefit of doubt. We do not find any perversity, factual or legal infirmity in the impugned judgment of acquittal in favour of Ali Ashgar respondent.
17. It is clarified that appeal against acquittal has distinctive feature and approach. To deal with appeal against conviction is distinguishable from appeal against acquittal because presumption of doubt innocence is attached in later case. This Court can only interfere in the order of acquittal when it is found on the face of it as capricious, perverse, arbitrary in nature or based on misreading, non-appraisal of evidence or is artificial, and led to gross miscarriage of justice. Suffice it to say that an order/judgment of acquittal giving rise to strong presumption of innocence rather double presumption of innocence is attached to such an order Feroze Khan v. Fateh Khan and 2 others (1991 SCM R 2220) and Feroze Khan v. Captain Ghulam Nabi Khan and another (PLD 1966 Supreme Court 424).
18. While taking into consideration the judgment of acquittal, substantial weight should be given to the findings of the lower Courts /hereby accused were exonerated from the commission of crime.
Guidance is sought from Muhammad ljaz Ahmed v. Raja Fahim Afzal ;nd 2 others (1998 SCM R 1281).
It is held by the Hon'ble Apex Courts hat acquittal would be unquestionable when it could not be said that acquittal was either perverse or that acquittal judgment was improper incorrect as it is settled that whenever there is doubt about guilt of accused, its benefit must go to the accused, and the Court would never tome to rescue the prosecution to fill the lacuna appearing in its evidence as it would be against established principles of dispensation of criminal justice. Reliance is made upon Muhammad Akram v. The state (2009 SCM R 230).
19. For the above reasons, this appeal being' devoid of any merit is dismissed.