Asjad Javaid Ghural, J.--Through this appeal under Section 48 of The Control of Narcotic Substances Act, 1997, appellant Haroon has challenged the vires of judgment dated 23.10.2014 passed by a learned Additional Sessions Judge at Multan in case FIR No, 154 dated 05.08.2013, in respect of an offence under Section 9-C of The Control of Narcotic Substances Act, 1997 registered at Police Station, Kup Multan whereby he was convicted and sentenced as under: -- Under Section 9-C of the Control of Narcotic Substances Act, 1997 Rigorous imprisonment for 12-years and to pay the fine of Rs. 44,000/- and in default thereof to further undergo simple imprisonment for 11-months.
2. The squeeze facts of the case as narrated in the crime report (Ex.PA/1) are that Muhammad Siddique, SI (PW-5) alongwith her police contingents was present Kup Bazar on patrolling duty. On giving a tip-off, he constituted a raiding party and reached at Sabeel Chowk. On seeing them one person tried to run away but he was. chased and apprehended by the police party. He disclosed his name as Haroon and upon his personal search, 4266-grams of charas and 2210-grams of opium was revered from his possession. Out of the recovered charas, five samples of 10/10 grams whereas five samples of 10/10 grams opium were separated, which were sealed into parcels alongwith the remaining narcotic substance and were take into possession vide recovery memo.
Ex.PB
3. At the commencement of the trial, the learned trial Court had framed a charge against the appellant to which he had pleaded not guilty and claimed to be tried.
4. The prosecution had produced 05-witnesses besides the reports of Chemical Examiner (Ex.Pll & Ex.PE). The appellant, in his statement recorded under Section 342, Cr.P.C. had denied and controverted all the allegations leveled against him, the neither opted to make statement under Section 340(2), Cr.P.C. nor had he produced any witness in his defence.
5. Learned trial Court, upon conclusion of the trial, had convicted and sentenced the appellant as stated above hence this criminal appeal.
6. Learned counsel for the appellant confined his arguments to the extent of question of safe, custody of the recovered contraband by referring the statement of Mugheera Khan No, 2944/C (PW-4) who deposed that he deposited five sample parcels of Charas and five sample parcels of opium in the office of Chemical Examiner, Multan on 6.8.2013 whereas the reports of Chemical Examiner show that same were deposited in the said office on 24.8.2013 with the name of forwarding officer as "ETO" (Excise & Taxation Officer). Learned counsel further added that nothing is available on record to show that how the said samples were received in the office of ETO and what was the function of said officer to the extent of submission of samples in the office of Chemical Examiner. Lastly, he urged that the said contradiction is material and sufficient to cast doubt about the veracity of the prosecution evidence leading to the acquittal of the appellant.
7. On the other hand, learned Deputy Prosecutor General appearing for the State could not controvert the arguments advanced by learned counsel for the appellant with regard to the safe custody of the alleged recovered contraband, however he added that the complainant and other police officials had no or grudge to falsely implicate the appellant in this case and plant such huge quantity of narcotic substance.
8. We have heard learned counsel for the appellant as well as learned Deputy Prosecutor General appearing for the State and have perused the record with their able assistance.
9. The only contention of .learned counsel for the appellant with regard to the safe custody of the alleged recovered contraband substance is a serious question, which needs consideration by this Court. Initial onus lies on the prosecution to prove its case beyond any shadow of doubt, which could be possible only when the sample of recovered contraband substance sent to the office of Chemical Examiner for analysis is proved through a representative of the concerned Police Station.
Mugheera Khan No, 2944/C while appearing in the dock in the trial Court as PW-4 had deposed that on 6.8.2013, the Moharrir handed over to him five sample parcels containing chat-as and five sample parcels containing opium for its onwards transmission to the office of Chemical Examiner, Multan; which he deposited on the same day whereas the reports of Chemical. Examiner (Ex.PD & Ex.PE) show that the same were deposited in the said office on 24.8.2013 and that the name of forwarding officer was mentioned as "ETO" (Excise & Taxation Office). In the prosecution evidence.
ETO figures nowhere as forwarding authority. How and who intruded ETO, is neither established by the prosecution nor provided by the Statute. It is duty of the prosecution to prove safe custody of the narcotic substance and then representative samples of such narcotic substance to be sent to the office of Chemical Examiner directly through the representative of the concerned Police Station.
Unless the safe custody of the parcels is proved, the submission of parcels in the office of Chemical. Examiner cannot be proved beyond any shadow of doubt and the same cannot be made basis for conviction. In the case in hand, the samples were received from the office of ETO, who had nothing to do with the said parcels after 18-days as deposed about by Mugheera Khan constable. The office of ETO was neither member of the raiding party nor representative of the Police Station concerned. We seek guidance in this regard from case titled "Muhammad Abbas vs. 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 29.6.1998 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 that 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 6.7.1998 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."
10. Relying on the principles laid down in the judgment referred to above, the appeal in hand is allowed, the conviction and sentence of the appellant awarded by the learned trial Court vide judgment 23.10.2014 are set aside and appellant Haroon is acquitted of the charge. He is directed to be released from jail forthwith, if not required to be detained in any other criminal case.