Raja Shahid Mehmood Abbasi, J.--Muhammad Aslam, appellant was booked and tried in case FIR No. 196 registered at Police Station Civil Line, Muzaffargarh on 17-06-2012 for an offence under Section 9-(c) of the Control of Narcotic Substances Act, 1997 and vide judgment dated 15-08-2016 handed down by the learned Additional Sessions Judge/Special Judge. Control of Narcotic Substances Act, 1997, Muzzafargarh, he was convicted for an offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 and was sentenced to undergo four years and six months R.I. alongwith fine of Rs.20000/- in default thereof to further undergo S.I. for five months. Benefit of Section 382-B, Cr.P.C. was extended in favour of the appellant/ accused.
Feeling aggrieved by the judgment of the learned trial Court Muhammad Aslam, appellant assailed his conviction through filing of the instant appeal.
2. The brief facts of the case are that on 17-06-2012 at about 10.35 p.m. when the police contingents of Police Station Civil Line, Muzaffargarh were on patrolling duty at Alipur Road near PSO Pump, on spy information, the appellant/accused was apprehended by the raiding party and recovered charas weighing 1010 grams. Out of the recovered charas, 336-grams charas was separated for chemical analysis. Hence, the crime report.
3. After formal investigation, report under Section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned Additional Sessions Judge, Muzzafargarh and the appellant was sent up for trial. The learned trial Court charge sheeted the appellant to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case produced as many as six witnesses namely Asad Hameed, 63/C (PW.1), Adnan Shahzad, ASI (PW.2), Abdul Shakoor, SI (PW.3), Muhammad Bakhsh 1009/HC (PW.4), Asad Hameed 63/C (PW.5) and Abdul Hameed, SI (PW.6).
4. The prosecution gave up Akbar Azam, PW being unnecessary and after tendering in evidence report of PFSA, Lahore (Ex.PE) closed its evidence.
5. After closure of prosecution evidence, statement of the appellant was recorded under Section 342 of the Code of Criminal Procedure, 1898 wherein he negated the allegations leveled against him and professed his innocence. The appellant/accused did not opt to appear as his own witness u/S. 340(2), Cr.P.C. in disproof of the allegation leveled against him, however, he produced Irfan Ali and Nadeem Abbas (DW.1) and (DW.2) and documentary evidence in shape of certified copy of petition u/S. 22-A, Cr.P.C. (Ex.D1) in his defence evidence.
6. After completion of evidence from both the sides, the learned trial Court, after holding the appellant guilty of the offence, convicted him as mentioned in preceding Paragraph No. 1 above.
7. We have heard the arguments advanced by the learned counsel for the appellant as well as the learned Deputy Prosecutor General and have gone through the record with their able assistance.
8. After the careful scrutiny of the material available on record, we come to the conclusion that the prosecution has failed to establish safe custody of recovered substance and parcel of samples We straight away observed that the prosecution case rests on the statements of Asad Hameed, 63/C (PW.1), Abdul Shakoor, SI (PW.3) and Muhammad Bakhsh 1009/HC, Moharrer (PW.4). Abdul Shakoor, SI (PW.3) was under legal obligation to state before the trial Court that after the recovery of contraband to whom, when and where the illicit material, recovered from the accused was handed over but his deposition in this regard is absolutely silent. There is nothing in his statement that how the recovered material was subsequently transmitted to the police station. Thus, the prosecution failed to form a chain to prove safe transmission of charas from the venue of the occurrence to the Police Station and thereafter transmission of the sample in the office of Chemical Examiner. In this way, the prosecution has failed to discharge the heavy responsibility which lies on the prosecution.
This aspect of the case casts serious doubt in the prosecution story. Furthermore, the report of the Punjab Forensic Science Agency, Lahore (Ex.PE) shows the name of forwarding officer as an 'ETO'
(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, 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 to 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 only. We seek guidance in this respect from the case titled "Muhammad Abbas us. The State (2006 YLR 2378 [Lahore])". The relevant portion of the said judgment is reproduced 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 13.07.1998 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 sale 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."
9. The aforementioned 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.
10.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.
11.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 15.8.2017 and acquit the appellant Muhammad Aslam from the charge against him. He is in jail. He is released forthwith if not required in any other case.