MISS AALIA NEELUM, J.---Arshad Mahmood Khan son of Muqarab Khan, Caste Hazara, resident of Mustafa Zai, Village Rajoua Sharif, Tehsil and District Abbotabad, presently in Lahore, appellant was involved in case FIR No,41 of 2010, dated 23.5.2010, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station ANF, Lahore and was tried by the learned Judge, Special Court Control of Narcotic Substances, Lahore. The learned trial court seized with the matter in terms of judgment dated 14.11.2012 convicted the appellant under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to undergo 08 years' R.I. with fine of Rs,80,000/- and in case of default thereof, further undergo Simple Imprisonment for two months.
Benefit of section 382-B of 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 (Ex.PA/1) lodged on the complaint (Ex.PA) of Imtiaz Ahmad Cheema, SHO (PW-3) is that on 23.5.2010 the high ups received spy information that the appellant is indulged in selling narcotics. On this information, raid was conducted at Main Gate, Race Club, Lahore where at 5.00 p.m. a person with blue shopper in his right hand came at the given address and started waiting customers at road side. The appellant was apprehended at the spot. On search, five (5) packets of Garda Charas were got recovered, however, on weighing each packet was 1200 grams , as such total Garda Charas was 6 kilograms. Out of the recovered "Charas" the complainant separated 10/10 grams from each packet for chemical analysis and prepared five sealed sample parcels. The remaining Charas (P/1) was also converted into sealed parcel which were taken into possession by the complainant through recovery memo (Ex.PC) which was attested by Noman Ghous (given up PW) and Azhar Hamesh (PW-4). On personal search of the accused/appellant, the complainant recovered Rs,50/- (P-2), photocopy of ID card (P-3), card race club (P-4) and mobile phone with sim (P-5) which were taken into possession videEx.PC which were also signed by the above said Noman Ghous and Azhar Hamesh, PWs. The complainant drafted complaint (Ex.PA) and sent the same through Arshad Sepoy to the Police Station for registration of the formal FIR (Exh.PA/1). The complainant recorded the statements of the PWs and also prepared site plan Ex.PD at the spot. The complainant handed over sample parcels and sealed parcel of recovered Charas along with other articles to Moharrar for safe custody.
Having found the accused guilty, the Investigating Officer prepared report under section 173, Cr.P.C. and sent the same to the court of competent jurisdiction.
3. The learned trial court formally charge sheeted the appellant on 02.8.2010, to which the appellant pleaded not guilty, and claimed trial. The prosecution in order to advance its case, produced as many as four witnesses. Imtiaz Ahmad Cheema, SHO (PW-3) is the complainant of the case as well as. the Investigating Officer of the case. Sajjad Ahmad, C/Naib Moharrar (PW-2) deposed that on 23.5.2010 he performed his duty as Moharrar and received complaint (Ex.PA) sent by the complainant and on the basis of which he chalked out FIR (Ex.PA/1). On the same day, Sajjad Ahmad (PW-2) further deposed that said SI also gave me 5 sealed sample parcels, said to contain Heroin for its onward transmission in the office of Chemical Examiner and one sealed parcel of Heroin for keeping the same in Malkhana. On 25.5.2010 Sajjad Ahmad (PW-2) further deposed that he handed over 5 sealed sample parcels, said to contain Heroin along with relevant documents to Muhammad Saleem, HC for doing the needful with seals intact. Muhammad Saleem, HC (PW-1) deposed that on 25.5.2010, Sajjad Ahmad, Naib Moharrar (PW-2) handed over to him 05 sealed sample parcels, said to contain Garda Charas along with relevant papers for onward transmission to the office of Chemical Examiner intact. Azhar Hamesh, SI (PW-4) along with another Nouman Ghous, PW are the witnesses of the recovery memo Ex.PB and Ex.PC.
4. On 25.01.2012, the learned Special Prosecutor vide his statement gave up PW Nouman Ghous as unnecessary and closed the prosecution evidence after tendering the report of chemical Examiner (Ex.PE).
5. Statement of the appellant was examined under section 342, Cr.P.C., on 06.02.2012 wherein he opted to lead defence evidence and also to appear as his own witness in terms of section 340(2), Cr.P.C. in disproof of allegations levelled against him and while replying to a question that why this case against him and why the PWs have deposed against him, the appellant made the following deposition:- "I have been falsely involved in this case. I am employee as waiter of Race Course Club cafeteria.
ANF officials went there to arrest one Khushi and they could not find him out and with mala fide intention, arrested me. Nothing was recovered from my possession. Witnesses deposed against me, due to subordinates of ANF."
6. In defence, the appellant produced Ghulam Mustafa Khan, DW-1 and Zahid Iqbal, DW-2 but vide his separate statement dated 03.10.2012 opted not to appear as his own witness in terms of section 340(2), Cr.P.C. in disproof of allegations levelled against him.
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. At the very outset, learned counsel for the appellant has contended that the appellant has been involved in the 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 possession of the appellant and the prosecution has failed to prove the safe custody of the narcotics substance and lastly prayed that he be acquitted from the charge being falsely implicated in this case.
9. On the other hand, learned Deputy 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.
10.We have heard the arguments advanced by the learned counsel for the appellant as well as the learned Deputy Prosecutor General and have minutely perused the record available on the file.
11.After a careful scrutiny of the evidence on record, we came to the conclusion that the prosecution has not established safe custody of recovered substance and the parcels of samples.
There are contradictions in the case of the prosecution as to deposit of the samples and case property in the "Malkhana". As per the prosecution case "Charas Garda" was recovered from the shopper taken in possession from the hand of the accused/appellant by Imtiaz Ahmad Cheema, SI/SHO (PW-3). During court-statement Imtiaz Ahmad Cheema, SI (PW-3)/the complainant had also deposed that he recovered 5 packets of Garda Charas, each packet was of 1200 grams and total Garda Charas was weighing 6 (six) kilograms. He (PW-3) also deposed during his court- statement that he handed over sample parcels and sealed parcel of recovered Charas along with other articles to the Moharrar for safe custody. However, during cross-examination he (PW-3) deposed that Garda Charas was in different colours packets in the shopper. Charas was in shape of slabs. Similarly, Azhar Hamesh, S.I (PW-4) deposed during cross-examination that recovered Charas was in shape of slabs whereas Muhammad Saleem, HC (PW-1) deposed during his court- statement that Sajjad Ahmad Naib Moharrar (PW-2) handed over to him five (5) sealed sample parcels, said to contain Garda Charas for onward transmission to the office of Chemical Examiner on 25.05.2010. Contrary to the deposition of PW-1-Muhammad Saleem, HC, Sajjad Ahmad C/Naib Moarrar (PW-2) deposed that on 25.5.2010 he (PW-2) handed over 5 sealed sample parcels, said to contain Heroin to Muhammad Saleem HC for onward transmission to the office of Chemical Examiner. Besides (P'W-2) also deposed that Imtiaz Ahmad Cheema, SI (PW-3) handed over to him 5 sealed sample parcels of Heroin and one sealed parcel of Heroin for keeping it in the "Malkhana".
We have also noted that the questions put to the accused/appellant in the examination recorded under section 342 of the Cr.P.C. related specifically to "recovery of 5 packets of Garda Charas" and "1.0. separated 10 grams Charas from each packet for sample from the recovered Charas (P-1) and positive report (Ex.PE)". On perusal of Chemical Examiner Report (Ex.PE), it reveals that five parcels of samples separated from the recovered Charas Garda, contained Charas.
12. The report of the Chemical Examiner containing his opinion must, therefore, disclose the procedure on which his opinion is based and the reason in support of the opinion. The opinion rendered by the Chemical Examiner is no evidence unless the same is supported by the reasons.
The Chemical Examiner report (Exh.PF) except an opinion that sample contains "Charas" there is no other data as prescribed in law. Since the patent infirmity has been noticed in the report (Eh.PF) which found to be fatal to the prosecution case. In such eventuality it is not possible to uphold and sustain the judgment of conviction and sentence against the appellant. Accordingly the appellant deserves to be given benefit of doubt.
13. There is, thus, no evidence to connect the Chemical Examiner report (Ex. PE) with the substance which was seized from possession of the appellant. The prosecution was bound to prove link evidence with the arrest of the accused, seal of case property and the samples from the time of its recovery and till the same deposited in the Malkhana and till they were deposited with the office of Chemical Examiner, by examining all the witnesses who remained associated with the entire process. The learned Law Officer counters the deposition of Sajjad Ahmad, C/Naib Moharrar (PW-2) by contending that such deposition should be considered as a slip of tongue. The deposition of Sajjad Ahmad, C/Naib Moharrar (PW-2) was clear and conclusive and there was no doubt or ambiguity about the deposition of PW-2. On careful examination of the deposition of Sajjad Ahmad, C/Naib Moharrar (PW-2) made during examination-in-chief, the deposition of Sajjad Ahmad C/Naib Moharrar (PW-2) could not be termed as a slip of tongue or unwillingly blurted. As he (PW-2) repeatedly i.e thrice time deposed that he (PW-2) received 5 sealed sample parcels, said to contain Heroin for onward transmission to the office of Chemical Examiner and one sealed parcel of Heroin to be retained as case property in "Malkhana". He (PW-2) also deposed that on 25.05.2010 he (PW-2) handed over 5 sealed parcels, said to contain Heroin along with relevant documents to Muhammad Saleem, HC for doing the needful with seals intact. The tone and tenor of the statement of Sajjad Ahmad, C/Naib Moharrar (PW-2) are unmistakable, when his (PW-2) evidence was to the effect that the parcels and case property after recovery of the contraband was handed over to him (PW-2) and he (PW-2) kept it into safe custody in the "Malkhana".
14. The said contradictions in the deposition of the aforementioned police officials cannot be stated to be minor and irrelevant, in the absence of positive and material evidence. There is no explanation for this failure to establish safe custody of recovered substance and a sample.
15. Under these circumstances, it is unsafe to base the conviction of the appellant on the basis of above testimony of the prosecution witnesses, which cannot be said to be trustworthy in the facts and circumstances of the case. It becomes manifestly clear that the prosecution has miserably failed to prove the guilt of the accused/appellant beyond reasonable doubt. On careful examination of entire evidence, we are of the view that the learned Judge, Special Court, Control of Narcotics Substances, Lahore committed grave illegality in convicting the appellant for committing the offence without any legal evidence worthy of credit available on record. Since there was inherent illegality in the matter, the conviction cannot be upheld and finding in this regard is liable to be set aside and the same is set aside and consequence whereof, the appeal is accepted and Arshad Mahmood Khan-the appellant is ordered to be acquitted of the charge in case FIR No, 41 of 2010, dated 23.5.2010, offence under section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station ANF, Lahore. The appellant-Arshad Mahmood Khan is ordered to be released forthwith, if not required in any other case.