Aalia Neelum, J.- The appellant Ewiz Khan son of Hayat Khan, resident of Mohallah Hakeem Abad Post Office Landi Arbab Peshawar , was involved in case F.I.R No.22 of 2010, dated 25.05.2010, offence under Sections 6, 7, 8, 9(C), 14, 15 & 16 of the Control of Narcotic Substances Act, 1997, register ed at Police Station I & P Cell Customs House, Lahore and was tried by the learned Addl. Sessions Judge, District Lahore. The learned trial court seized with the matter in terms of judgment dated 04.11.201 1 convicted the appellant under Section 9(C) of the Control of Narcotic Substances Act, 1997 and sentenced him to death .
2. Feeling aggrieved by the judgment of the learned trial court, the appellant-Ewiz Khan has assailed his conviction through filing instant appeal. Whereas, learned trial court also referred C.S.R. No.40-N of 2011 (The State. Vs. Ewiz Khan) for confirmation of death sentence awarded to the appellant-Ewiz Khan. As both the matters are arising out of one and the same judgmen t of the learned trial court, therefore, these are being disposed of through single judgment.
3. The prosecution story as alleged in the F.I.R (Ex.PB/1) lodged on the application (Ex.PB) of Syed Muhammad Ali (PW-2)-the complainant is that on 25.05.2010, the complainant (PW-2) alongwith other officials of customs was performing duty in custom departure hall Allama Iqbal International Airport, Lahore and at that time checking of luggage of the passengers going from Lahore to Bangkok through flight No.TG-346 was continued. At about 09:40 p.m. one person carrying one trolley bag and two metal decoration pieces entered the custom departure hall. One person allegedly belonging to sensitive agency also entered with him. The person allegedly belonging to sensitive agency disclosed his name as Abid Hussain and also stated that the person accompanying him was in protocol of their department, therefore, his luggage may not be checked. However , the complainant (PW-2) asked for checking of his luggage. After checking of passport and CNIC number of said person, his name was disclosed as Ewiz Khan (the appellant), who was going from Lahore to China via Bangkok. Ewiz Khan (the appellant) was asked as to whether any objectionable item was with him in his luggage, who replied in negative. On suspicion, his luggage was checked in presence of Muhammad Intizar Inspector (PW-1) and Arshad Ali Dub (given up PW). On checking of two metal decoration pieces, off white powder was found in the secret cavities of said metal decoration pieces.
The complainant (PW-2) checked the same with Test Tube and found that the same was heroin, which on weighing was found 11- KG. Upon recovery of heroin, Abid Hussain (allegedly belonging to sensitive agency) fled away from the spot. The recovered heroin (P-1) was taken into possession by the complainant (PW-2) through recovery memo (Ex.P A). Out of the recovered substance, two sample parcels of 05-grams each were prepared for chemical analysis. The complainant (PW -2) drafted application (Ex.PB) for registration of the formal FIR (Ex.PB/1).
4. Thereafter , the investigation was entru sted to Shahnawaz Langryal Inspector (PW-5), who being investigating officer of the case visited the place of occurrence and prepared the site plan (Ex.PJ) of the place of recovery , recorded the statements of the prosecution witnesses under Section 161 Cr.P.C and also sent the appellant to judicial lock up by the order of the learned Area Magistrate. Having found the accused guilty , the Investigating Officer (PW-5) prepared report under Section 173 Cr.P.C., while placing his (the appellant) name in Column No.3 of the challan and sent the same to the court of competent jurisdiction.
5. The learned trial court formally charge sheeted the appellant on 13.10.2010, to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as five witnesses. Muhammad Intizar Inspector (PW-1) is the witness of recovery , whereas Syed Muhamma d Ali Inspector (PW-2) is the complainant of the case. Habib ur Rehman Deputy Superintendent Customs (PW-3) chalked out formal FIR (Ex.PB/1). Shahnawaz Langryal Inspector (PW -5) is the investigating of ficer of the case.
6. On 10.08.201 1, the learned Special Prosecutor for Customs gave up PW-Arshad Ali as being un-necessary and after tendering report of Chemical Examiner , Lahore (Ex.PF) closed the prosecution evidence on 13.10.201 1.
7. The appellant was also examined under Section 342 Cr.P.C, wherein he did not opt to produced defence evidence, however , himself appeared as his own witness in terms of section 340(2) Cr.P.C and while replying to a particular question that why PWs had deposed against him, the appellant made the following deposition:- "Syed Muhammad Ali Shah PW snatche d 20,000 US Dollars from me. When I demanded the return of said amount, they involved me in this false case. The luggage including the two Zaroofs (decoration pieces) containing heroin which did not belong to me and these were in possession of Abid Hussain who fled away from the spot despite his arrest in connivance with Muhammad Ali Shah PW. I have been falsely implicated in this case. Said Abid Hussain had already been convicted by Military Court who was the main culprit of main occurrence and was sentenced to 25 years R.I. I have nothing to do with the recovered narcotics. The witnesses are deposing falsely ."
8. After hearing the arguments advanced by the learned counsel for the appellant as well as the learned Special Prosecutor for Customs, 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.
9. We have heard the arguments advanced by the learned counsel for the appellan t as well as the learned Special Prosecutor for Customs and have minutely perused the record available on the file.
10. After a careful scrutiny of the material available on record, we come to the conclusion that the prosecution has not established safe custody of recovered substance. The prosecution has to prove its case beyond reasonable doubt. The question before us whether any reasonable doubt regarding safe custody of the allegedly recovered substance 'Heroin' (P-1) weighing 11 kilograms recovered from two vases upon their search arises and whether the recovered contraband was in safe custody which rules out the possibility of tempering. In this regard, most important testimony was of Syed Muhammad Ali, Inspector Customs (PW-2)-the complainant who on suspicion recovered contraband substance from Ewiz Khan accused/appellant and the accused was apprehended. Syed Muhammad Ali, Inspector Customs (PW-2)-the complainant deposed during examination-in chief that:- "I also served notice of arrest Ex.PE upon the accused. I also handed over the accused alongwith case file to Superintendent I & P Branch, Custom House Lahore for registration of case. I deposited heroin P1 in the State W are house."
Syed Muhammad Ali, Inspector Customs (PW -2)-the complainant deposed during cross-examination that:- "The memo Ex.P A was prepared at 01:00 midnight. At about 03:00 AM, I myself handed over the complaint to Customs House. Again said I returned at 03:00 AM. Apart from complaint Ex.PB, recovery memo Ex.P A, case property , arrest memo etc. were handed over by me at Customs House."
Muhammad Intizar Inspector Customs (PW -1)-recovery witness deposed during cross-examination that:- "The proceedings started at 09:40 PM and ended at 03:00/04:00 AM. Again said at 03:00 AM. I went alongwith Muhammad Ali to the custom house after leaving my counter ."
Whereas, Habib-ur-Rehman, Deputy Superintendent Customs (PW -3) deposed during cross-examination that:- "The FIR was lodged at 09:45 PM on 25.05.2010. Muhammad Ali came alongwith complaint at about 09:30 PM on 25.5.2010. It took me about 20 minutes in lodging the FIR. IO also came there. Volunteered that I telephoned him. The investigation was entrusted to him at the same time."
The seizure of the alleged narcotics substance is shown to have been made on 25-02-2010 at 09:40 p.m. in the night. The two (2) parcels of samples weighing five (5) grams were taken from the seized substance Heroin weighing 11 kilograms and one parcel of remaining seized substance was prepared at the spot. Syed Muhammad Ali, Inspector Customs (PW-2) the complainant stated that at 03:00 a.m. he handed over complaint at Customs House. Whereas, on perusal of FIR (Exh.PB/1) it reveals that incident was reported to the Custom authorities at 11:50 on 25-05-2010. On the other hand Habib-ur-Rehman, Deputy Superintendent Customs (PW-3) deposed that complaint was received at 09:30 p.m. and FIR was lodged at 09:45 p.m. The inconsistencies and contradictions with regard to the deposit of the parcels of the samples and remaining recovered contraband and time of reporting incident are apparent. From the time of the seizure on 25-02 2010, at 09:40 p.m. till the parcels of samples and remaining contraband substance deposit in the State ware house, it is not established where these were laid or handled by how many people and in what ways. Mere oral evidence of the prosecution witnesses' i.e. Syed Muhammad Ali, Inspector Customs (PW-2)-the complainant and Muhammad Intizar Inspector Customs (PW-1)-recovery witness as to the recovery of heroin weighing 11 kilograms does not discharge the heavy burden of responsibility , which lies on the prosecution. Practically the prosecution took upon them the risk of losing the case. In the considered opinion of this Court, the aforesaid inconsistencies and contradictions considered cumulatively do lead to an irresistible inference that the prosecution has not been able to prove safe custody of the recovered substance through material and cogent evidence.
11. There is, thus, no evidence to connect the Chemical Examiner report (Ex.PF) with the substance that was seized from the possession of the appellant. This fact alone creates a ground to believe that the parcels of sample and case property were not kept in safe condition and the claim of the prosecution that the case property was not tampered with is doubtful. On the other hand, the moharrar/incharge ware house as well as the person (Syed Ahmed Ali) who deposited the sealed parcel of the samples with the office of the Chemical Examiner Punjab, Lahore have not been examined by the prosecution. In absence of deposition by the Moharrar/incharge ware house to whom sealed parcel of sample and remaining contraband was handed over for keeping it in safe custody and a person who carried the sealed parcel of the sample to the Chemical Examin er for the Punjab, Lahore, to the effect that the parcel of the sample remained intact and had not been tampered with it, conviction cannot be based and the conviction by the learned trial court was liable to be set aside.
12. From the facts and circumstances narrated above, we are persuaded to hold that prosecution has badly failed to substantiate its case against the appellant to the hilt and the learned trial court was not justified in convicting the appellant while basing upon such weakest/uncorroborated evidence and conviction passed by the learned trial court in the circumstances is against all cannons of law recognized for the dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Moreover, it is golden principle of law that the court may err in letting off hundred guilty but should not convict one innocent person on the basis of suspicion.
13. Resultantly , while setting aside the conviction and sentence recorded by the learned trial court in terms of judgment dated 04.11.201 1, Crl. Appeal No.2170 of 2011 filed by Ewiz Khan/appellant is ACCEPTED IN TOTO.
Consequently , Ewiz Khan son of Hayyat Khan, appellant is ordered to be acquitted of the charge in case F.I.R. No.22/2010, dated 25.05.2010, offence under Sections 6, 7, 8, 9(c), 14, 15, 16 of the Control of Narcotic Substances Act, 1997, registered at Police Station I & P Cell Customs House, District Lahore. He (the appellant) is directed to be released forthwith, if not required in any other case.
14. As far as Capital Sentence Reference No.40-N of 2011 for confirmation of sentence of death inflicted upon, Ewiz Khan /convict is concerned, the same fails, which is answered in NEGA TIVE . Death sentence is NOT CONFIRMED .