' SARDAR MUHAMMAD SARFRAZ DOGAR, J.---Aftab son of Anwar Ali, the appellant, was involved in case FIR No,222/2006, dated 15.7.2006, under Section 9(b) of the Control of Narcotic Substances Act, 1997, registered at Police Station Garh Maharaja, District Jhang, and was tried by the learned Additional Sessions Judge, Shorkot. The learned trial Court seized with the matter in terms of judgment dated 22.12.2009 convicted the appellant under Section 9(b) of the Control of Narcotic Substances Act, 1997 and sentenced him to undergo Rigours Imprisonment for five years with a direction to pay Rs,20,000/- as fine and in case of default thereof, further undergo Simple Imprisonment for two months. The benefit of Section 382-B, Cr.P.C. Was also extended to him. The appellant has assailed his conviction through filing the instant appeal.
2. The prosecution story as alleged in the FIR (Exh..PA/1) lodged on the complaint (Exh.PA) of Muhammad Aslam Pervez Sub-Inspector (PW-7) is that on 15.7.2006, at about 5:15 P.M.
Complainant along with other police officials was on patrolling at Chowk Pattan Garh Maharaja when three persons, whose names disclosed later on as Rabnawaz, Aftab (appellant) and Muzaffar, riding a motorcycle bearing registration No,1407/FDL came there from Pattan Road Side.
The accused, on seeing the police party, turned a reverse gear of motorcycle. On the basis of suspicion, they were apprehended but one of them namely Muzaffar enabled his good escape, however, the remaining two were apprehended. When searched, heroin weighing 500 grams, scales, a mobile phone along with sim card, and Wattack money Rs,27590/- all were recovered from a bag, held by Aftab (appellant) in his hand. Out of recovered heroin, one gram was separated for chemical analysis. The sealed parcels of recovered contraband and sample were prepared. All the recovered articles were also taken into possession vide recovery memo (Exh.PD).
3. The investigation was conducted by Muhammad Aslam Pervez Sub-Inspector (PW-7) who has completed the usual and necessary steps of investigation and upon completion of the investigation, report under section 173 Cr.P.C. Was submitted before the learned trial Court.
4. The learned trial Court formally charge sheeted the appellant on 16.11.2006, to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as seven witnesses. Muhammad Aslam Pervez Sub Inspector (PW-7) was complainant of the case.
The Investigation was mainly conducted by Muhammad Aslam Pervez Sub Inspector (PW-7) and partially conducted by Jafar Ali Sub-Inspector (PW5). Nisar Khan 1238/HC (PW-1) deposed about handing over a sealed parcel to Jahangir 856/C containing heroin for its transmission to the office of 'Chemical Examiner Lahore. Riaz Hussain 487/C (PW-2) deposed that on 15.7.2006 Muhammad Aslam Pervez Sub-Inspector handed over to him complaint and case property, which he submitted to the Moharrar of the Police Station. Jahangir Khan 856/C (PW-3) deposed about transmission of sealed parcel to the office of Chemical Examiner Lahore, which was entrusted to him by the Moharrar. Muhammad Sharif Sub-Inspector (PW-4) deposed that on 15.7.2006 he chalked out the FIR (Exh.PA/1) on the basis of complaint (Exh.PA) sent by Muhammad Aslam Pervez Sub Inspector through Riaz Hussain 487/C. Muhammad Ashraf 1478/C (PW-6) was the recovery witness.
5. On 25.8.2007, learned Deputy District Public Prosecutor gave up Sajjad Hussain 484/C (PW) being died and closed the prosecution case after tendering the report of Chemical Examiner (Exh. PF) and death certificate of Sajjad Hussain 484/C as Mark-A.
6. The appellant was also examined under Section 342, Cr.P.C. Wherein he did not opt to appear as his own witness in terms of Section 340(2) Cr.P.C. In disproof of allegations leveled against him, however, he produced copy of certificate of B.A. First Annual Examination as Mark-A in his defence evidence. In reply to a question that why this case against him and why the PWs have deposed against him, the appellant made the following question:-- "I am innocent. I have been falsely involved in this case at the instance of Mehr Liaqat Ex-Nazim as my co-accused Muzaffar divorced the sister of aforesaid Mehr Liaqat Ex-Nazim and married my sister. Nothing was recovered from my possession. The PWs have falsely deposed against me and my co-accused being police officials."
7. 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.
8. Learned counsel for the appellant argued that as per first report of Forensic Science Laboratory dated 29.7.2006 (Exh.PC) the contraband was not heroin whereas second report of Forensic Science Laboratory dated 17.10.2006 (Exh.PF) reveals that the contraband was heroin. Further adds that in presence of first report which is in negative and in favour of the appellant, then there is no occasion for prosecution to send another sample to the office of chemical examine,r for taking opinion of its own choice just to entangle the appellant in this case. This sole fact show malice on the part of prosecution, therefore, the appellant deserves acquittal.
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. After careful scrutiny of the material available on the record, we come to the conclusion that the prosecution has not established safe custody of recovered substance as the reports of Chemical Examiner regarding recovered substance are contradicted to each other. Firstly, the sample was sent by Muhammad Aslam S.I. (PW-7) to the office of chemical examiner for its analysis through Jahangir Khan 856/C (PW-3). Muhammad Aslam S.I. (PW-7) deposed during cross-examination that he prepared the sample parcel from the recovered heroin (P-13) with due care. Jahangir Khan 856-C (PW-3) deposed during cross-examination that he firstly delivered the parcel to the office of chemical examiner Lahore on 17.7.2006. But the report of chemical examiner dated 29.7.2006 (Exh.PC) reveals that the said sample does not contain heroin. There is nothing on record to establish that the recovered substance was handed over to the Moharrar for keeping it in safe custody up till 09.10.2006 as Nasir Khan 1238-HC (PW-1) deposed that on 09.10.2006, Jafar Ali S.I (PW-5) handed over to him sealed parcel for onward transmission to the office of Chemical Examiner Lahore, which he handed over to Jahangir 856/C for its transmission, to the office of Chemical Examiner Lahore. Nasir Khan 1238/HC (PW-1) deposed during examination in chief that the said parcel which was handed over to him remained in possession of the Investigating Officer before 09.10.2006. The testimony of Nasir Khan 1238/HC (PW-1) leads us to draw an inference that the prosecution has failed to establish the safe custody of recovered substance.
12. Another important aspect of the case is that Jafar Ali S.I. (PW-5) deposed that on 05.9.2006, the investigation of instant case was entrusted to him and he received a letter from the office of Chemical Examiner Lahore (Exh.PB) along with the report of Chemical Examiner, thereafter, he moved an application before the learned Area Magistrate for submission of fresh sample of the case property and the same was prepared and sent to the office of the Chemical Examiner Punjab Lahore. While facing cross-examination, Jafar Ali S.I. (PW-5) deposed that on 06.9.2006 he delivered the sample to the Moharrar. He further deposed that at the time of preparing the sample Moharrar was not with him and subsequent parcel was not signed by learned Area Magistrate.
Contrary to the above, Nasir Khan 1238/HC (PW-1) deposed that the second B sample parcel was handed over to him by Jafar Ali S.I. (PW-5) on 09.10.2006. This contradiction with regard to the date of preparing and handing over the sample parcel to the Moharrar as apparent from the depositions of Nasir Khan 1238/HC (PW-1) and Jaffar Ali S.I. (PW-5) create serious doubts, therefore, no implicit reliance can be placed on such type of evidence.
13. 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), the Customs 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 in force, 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 Jaffar Ali S.I. (PW-5) as his own prepared the second sample of case property and sent it to the office of chemical examiner without any permission of the learned Area Magistrate. It is important to note that Jafar Ali S.I. (PW-5) deposed that he moved an application before the learned Area Magistrate. But it is interesting that neither the said application nor any order passed by the Magistrate on such application is available on the record, which falsifies the prosecution case.
14. There is nothing on the record to establish that in whose presence the second sample parcels were prepared. In the attending circumstances, we have considered view that the second positive report of chemical examiner dated 17.10.2006 (Exh.PF) does not carry any weight especially in absence of any evidence with regard to the safe custody of recovered substance and material illegality while preparing of second sample parcel. Guidance is sought from Mst.Fatima v. The State (2002 PCr.LJ 32).
15. In the considered opinion of this Court, the aforesaid material illegalities are a 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.
16.
16. 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 appellant. Since there was inherent illegality in the matter, therefore, the conviction cannot be upheld and findings of the learned trial Court in this regard are not sustainable in the eye of law being based on wrong premises of law and facts.
17. For the reasons stated hereinabove, this appeal is accepted, the conviction and sentence awarded to the appellant Aftab son of Anwar Ali by the learned trial Court vide judgment dated 22.12.2009 are set aside and the appellant is acquitted. The appellant is present before the Court on bail.
18. As the appellant has earned acquittal, therefore, his application bearing Cr1. Misc. No,4531-M of 2014 seeking recalling of order dated 02.6.2014 whereby order for suspension of his sentence was recalled, his bail bonds for forfeited and show cause notices were issued to his sureties, is also accepted, consequently, Crl. Misc. No,2964-M of 2014 stands dismissed.