RAJA SHAHID MEHMOOD ABBASI, J. --- Through this appeal under Section 48 of the Control of Narcotic Substances Act, 1997, appellant Azhar Hussain has challenged the vires of judgment dated 27.04.2010 passed by the learned Additional Sessions Judge, Vehari in case F.I.R. No, 70, dated 05.02.2008, in respect of an offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 registered at Police Station, Saddar, Vehari whereby he was convicted under Section 9(c) of the Act ibid and was sentenced to rigorous imprisonment for ten years and to pay the fine of Rs, 200,000/- and in default thereof to further undergo simple imprisonment for one year. He was held entitled to the benefit of Section 382-B, Cr.P.C.
2. Brief facts of the case as narrated in the crime report are that on 05.02.2008 at 7.00 a.m. on tip of spy information, the appellant, Azhar Hussain was apprehended by Magbool Hussain, S.I. when he alongwith other police contingent was on patrolling duty and on personal search of the appellant, he recovered cloth bag hanging with his left shoulder containing charas (P.1). On weighing the same one packet 1270 grams, second packet 1255 grams, third packet 1075 grams, fourth packet 1260 grams alongwith pieces of charas 3300 grams total weight 8160 grams alongwith small scale, weights 10 grams, 50 grams and 200 grams were recovered. Out of the recovered charas 10 grams from each packet and pieces was separated and sealed into parcel. Hence, the crime report.
3. After completion of the investigation, the challan was submitted before the Trial Court. The Trial Court framed formal charge against the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997 to which he pleaded not guilty and claimed tried and the appellant was tried and convicted under the Control of Narcotic Substances Act, 1997. .
4. The prosecution had produced five witnesses and report of Chemical Examiner Ex.PE (under objection) to prove guilt of the appellant. After closure of prosecution evidence, the appellant had been examined under Section 342, Cr.P.C., he denied the charges levelled against him and professed his innocence, he did not opt to appear under Section 340(2), Cr.P.C. However, in his defence he produced copy of F.I.R. No, 71/2008 as Mark-A and copy of F.I.R. No, 72/2008 as Mark-B and closed his defence.
5. Learned Trial Court after hearing learned counsel for the appellant and the learned Law Officer, found the appellant guilty of the charge and sentenced him as mentioned in para No, 1 supra vide impugned judgment dated 27.04.2010. Hence, this appeal.
6. We have heard the learned Defence Counsel for the appellant as well as learned Deputy Prosecutor General appearing for the State and have perused the record.
7. According to the prosecution, Azhar Hussain, appellant/accused was apprehended by raiding party and got recovered 8160 grams of charas from his possession.
Ten grams charas from each' packet was separated for its onward transmission to the office of Chemical Examiner, Multan and subsequently said agency had subrnitted a report (Ex.PE) maintaining that the sample so sent contained charas. The prosecution in order to prove the guilt of the appellant and 'recovery of contraband charas got examined five prosecution witnesses. We have straightaway observed that Asif Imtiaz 518/C (PW.1) and Muhammad Safdar 427/C (PW.2) were the star witnesses of the prosecution. Asif Imtiaz 518/C (PW.1) who kept the case 'property in Malkhana for its onward transmission `to the office of Chemical Examiner, Multan, during his examination-in-chief deposed that On the same day, I.O. handed over me five sealed parcels said to contain charas for onward transmission to the office of Chemical Examiner On 20.02.2008 handed over the above said five sealed parcels to Safdar Hussain 427/C for onward transmission to the office of Chemical Examiner, Multan intact. Whereas Muhammad Safdar 427/C (PW.2) during his examination-in-chief deposed that "... On 20.02.2008 I was posted at P.S. Saddar Vehari on qeneral duty. On the same day, Muharrir of P.S. handed over to me five sealed parcels Said to contain tharas for onward transmission to the office of Chemical Examiner, Multan, which I deposited in the above-said office on 21.02.2008 inact." On the contrary, the report of the Chemical Examiner, Multan (Ex.PE) shows the name of the forwarding officer as an 'ETO' Vehari (Excise & Taxation Officer), who had nothing to do with the same. The Excise & Taxation Officer has been intruded in this case without any justification, who was neither member of the raiding party nor representative of the Police Station concerned, therefore, the same cannot be linked with the recovered contraband substance and its sample, the deposition of Muhammad Safdar 427/C (PW.2) is absolutely silent in this regard. It is not clear where the samples were kept from 05.02.2008 to 21.02.2008. Mere oral evidence of the prosecution witnesses as to the recovery of chars weighing 8160 grams does not discharge heavy burden of responsibility, which lies on the prosecution Admittedly, Muhammad Safdar, constable (PW.2) received sample parcel on 20.02.2008 but he retained till 21.02.2008 without any legal justification. He had no legal authority to keep the said samples with him. He was under legal obligation to deposit the same on same day when he received the said sample. In this way, the safe transmission of the sample becomes doubtful. It is further not clear from the prosecution evidence as to how the samples of the 'recovered substance has come in the hands of Excise and Taxation Officer, Multan and when said aspect of the case. is put to the learned Law Officer, he frankly conceded that there is no evidence whatsoever available on the record in this respect, which creates serious doubt in the veracity. of prosecution witnesses with regard to the safe custody of the recovered contraband substance. The safe custody as well as safe transmission of the separated samples eto the office of Chemical Examiner, Multan had also not been established by the prosecution, thus, we are not held persuaded to maintain conviction on this score alone. While dealing with such-like preposition, this Court in case, titled "Muhammad Abbas v. The State (2006 YLR 2378 [Lahore])" observed as under:-- "After hearing the learned counsel for the parties and going through the record, we have straightaway observed that although the alleged recovery of narcotic substance from the appellant's possession had been effected on 29.06.1998 yet none of the prosecution witnesses had uttered even a single word as to what had happened to the recovered substance after its recovery and with whom the same had been deposited for safe custody. It was only Muhammad Ramzan, FC (P.W.4), who had stated before the learned Trial Court that on 13.07.1.998 he had been handed over two parcels .said to contain heroin and Charas by Moharrir Head Constable of the relevant Police Station for onward transmission to the office of the Chemical Examiner which he delivered there on the same day. The report of the Chemical Examiner (Exhibit-PE), however, shows that the docket of the samples of the recovered substance had been prepared on 06.07.1998 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 & 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, Sheikhupura but after going through the record of this from cover to cover he has categorically conceded that there is no evidence whatsoever available on the record in those respects. In such a state of 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 convictions and sentences recorded by the learned Trial Court."
8. The afore-mentioned elements of doubt surrounding the prosecution case have led us to hold that the prosecution has failed to prove the case beyond reasonable doubt to sustain the conviction. The prosecution has not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of Chemical Examiner, Multan without the same being tampered with or replaced while in transit.
9. We have also observed that according to Section 29 of the Act ibid, initial onus rest on prosecution and when the prosecution discharged its liability, thereafter this onus shifts on accused to prove contrary but the prosecution miserably failed to discharge its liability to bring home guilt to its hilt beyond shadow of any doubt.
10. For what has been discussed above, we are inclined to hold that the prosecution evidence is highly deficient and the conviction recorded by the learned Trial Court in the circumstances is not sustainable. We thus while allowing the appeal, set aside the judgment dated 27.04.2010 and acquit the appellant Azhar Hussain from the charge against him. He is in jail. He be released forthwith if not required in any other case.