FAHIM AHMED SIDDIQUI, J.---The Sessions Judge/Special Judge (CNS), Mirpurkhas has convicted the appellant under Section 9(c) of CNS Act, 1997 in Special Case No. 44/2016 by passing the impugned judgment dated 17th December , 2016, and sentenced him to suffer R.I. for 04 years with benefit of Section 382-B, Cr.P.C. The trial Court also directed them to pay fine of Rs. 20,000/- and in case of non-payment of fine, he has to undergo S.I. for 05 months more.
2. It is the case of the prosecution that the police party of Police Station Mirwah Gorchani, Mirpurkhas headed by ASI Muhammad Aslam set out of police station in a drive of holdup and checking . Meanwhile, they received spy information that a person is selling hashish (charas) at Lind Road leading to villag e Morio Khan Gorhani. On such information, they rushed towards the reported place and reached there at 18:00 hours where they saw a person standing with a black colour shopper in his hand. He, after seeing the police party , tried to decamp but apprehended. The said person disclosed his name as Muhammad Jabbar alias Viki son of Muhammad Asghar alias Achi Malik. After checking in presence of official witnesses, two pieces of hashish (charas) were recovered from his shopper , which was weighed and found 2000 grams. The accused and recovered case property brought back to police station, where FIR was lodged against him on behalf of State.
3. After usual investigation, a Final Report was placed before the trial Court. The trial Court took cognizance and framed the charge against the appellan t, which was denied by him and he claimed trial. After trial, the Court pronounced its verdict as described above.
4. We have heard the arguments advanced by the learned DPG and have gone through the relevant record.
5. In the instant case, certain aspects require consideration. The incident is allegedly taken place at a populous surrounding but no effort was made by the police to arrange private witness. The learned counsel for the appellant has pointed out certain discrepancies in the deposition recorded before the trial Court. However , in addition to the discrepancies and contradictions of the witnesses, some other facets of the case proved fatal for the prosecution.
From the bare perusal of the deposition, it appears that the property was not sealed on the spot. It fortifies the assumption that the 'Memo of Arrest and Recovery' was not prepared on the spot.
6. However , the above-mentioned aspects may be overlooked, as there are other things require special consideration, which pertains to report of chemical analyser . Allegedly , the offence was taken place on 30-07-2016 but the property was received in the office of chemical analyser on 03-08-2016. Surprisingly , the date of letters through which the property was handed over to bearer is blank in the chemical analyser report and it is a fact that the date is not mentioned in the later through which the property was sent to chemical analyser . Now question arises that in whose custody the property was during the period 30.07.2016 to 03-08-2016 i.e. for four days. The bearer namely PC Rafique was not examined to clarify this aspect of the case. Similarly , the WHC of the police station was also not examined to verify that the property was remained in the Malkhana of police station. We are of the view that solely on this score, the prosecution case does not stand on its legs. In this respect, reliance may be taken from 2013 PCr.LJ 635, in which it is held that in such a situation, the prosecution is duty bound to establish the safe custody of the property i.e. narcotics through credible evidence. Similar view has also taken in the cases reported as 2015 SCMR 1002 , 2007 YLR 3087 and 2015 PCr .LJ 1413.
7. The ultimate outcome of the above discussion is that the prosecution remained fail to establish the case against the appellant, as such he is acquitted from the charge through our short order dated 28.09.2017 and the above are the reasons for the same.