Farooq Haider , J.:- This appeal has been filed against the judgment dated 09.01.2019 passed by learned Additional Sessions Judge, Lalian whereby in case arising out of F.I.R. No.13/20 18 dated 24.01.2018 registered under Section 9 (c) of the Control of Narcotic Substances Act, 1997 at Police Station Muhammad Wala, District Chiniot (Ex. PB/1), the learned trial Court has convicted and sentenced the appellant as under:- under Section 9(c) of Control of Narcotic Substances Act 1997 to rigorous imprisonment for 04 year and 06 months with fine of Rs.20,000/- and in default thereof the appellant was directed to further undergo S.I for 05 months. Benefit of section 382-B, Cr .P.C. was also extended to the appellant.
2. Briefly , the accusation levelled in the complaint (Ex.PB) drafted and sent by Abdul Sattar Khan, Inspector/complainant/ PW-1, against the appellant, on the basis of which, above mentioned F.I.R. was chalked out, is that on 24.01.2018, he along with other police officials was present at Saim Naala Tirkhanawala Barrana Road; when a tramper/pedestrian person coming from Mouza Dhaab, on seeing the police party tried to flee away but was apprehended, who told his name as Muhammad Nawaz (appellant); on his search, charas comprising two pieces weighing 1000-grams and 570-grams in a shopping bag was recovered from the possession of the appellant; out of recovered charas, 50-gram and 28-gram was separated for chemical analysis and secured into two parcels whereas remaining case property was also sealed in separate parcel.
After investigation, challan report was sent to Court against appellant; charge was framed against him, to which he pleaded not guilty; prosecution produced its evidence. Then learned trial Court recorded statement of the appellant under Section 342 Cr.P.C., wherein he negated the case of prosecution. Then, learned trial court after hearing learned counsel for the parties passed the impugned judgment, whereby the appellant was convicted and sentenced as mentioned above.
3. Learned counsel for the appellant has submitted that safe custody of case property and sample parcel has not been proved, hence conviction and sentence recorded through impugned judgment are liable to be set aside.
4. Conversely , learned Deputy Prosecutor General while controverting the submission of learned counsel for the appellant, has supported the impugned judgment.
5. Arguments heard. Record perused.
6. Abdul Sattar Khan, Inspector/complainant while appearing as PW-1 clearly states that he only handed over accused and case property to Khizar Hayat S.I. and did not hand over two parcels of sample of charas to him rather he deposed that he handed over both parcels of sample to Moharir , in this regard, relevant portion from his statement is being reproduced: - "Investigation was entrusted to Khizar Hayat S.I. He reached at the place of recovery. I handed over accused and case property, except two parcels of sample of chars. I handed over both parcels of sample of chars to Moharrar on the same day, when I came back to police station"
However, when he was cross examined on the subject, then it was proved that he had introduced version of handing over parcels of sample to Moharir through dishonest improvement in order to strengthen the case of the prosecution against the real facts and his no statement under Section 161 Cr.P.C., in this regard was available on the record, relevant portion from his statement is being reproduced: - "Investigating Officer recorded my statement with regard to the handing over of samples by me to Moharrar . At this stage, learned defence counsel requested that statement of the witness on this point be handed over to him. File has been perused, but no such statement is available in the file"
Following portion of the statement of Khizar Hayat S.I./I.O./PW -3 is also relevant on the subject: - "I have not recorded statement of any witness, who brought parcel of sample from place of recovery to police station on 24.01.2018"
Furthermore, Investigating Officer while conducting investigation has to collect evidence and Section 4 (l) Cr.P.C. is relevant in this regard and same is being reproduced: - "Investigation" . "Investigation" includes all the procee dings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf"
Perusal of aforementioned provision of law clearly reveals that during investigat ion evidence is to be collected which is to be relied upon by the prosecution against the accused, therefore, it was imperative upon the complainant in this case to hand over parcel of sample to the Investigating Officer, as it was the most important piece of evidence to be relied upon by the prosecution against the accused/appellant. Complainant has not handed over parcel of sample to the Investigating Officer, meaning thereby that process of collection of evidence in the case did not include this most important piece of evidence, therefore, neither the same can be relied by the prosecution nor used against the appellant/accused, in this regard guidance has been sought from the dictum laid down in case of "Maula Jan versus The State" (2014 SCMR 862 ).
It has further been noticed that it was claim of prosecution that allegedly recovered charas was comprising upon two pieces: one was of 1000-grams and second of 570-grams but case property produced in the Court was only 750- grams comprising upon four pieces in the parcel; relevant portion of the statement of PW-1 Abdul Sattar Khan, Inspector is being reproduced for ready reference: - "One piece which was comprising upon 1000 gram was in the shape of a piece. (On the request of learned defence counsel case property is de-sealed). T oday , chars is comprising upon four pieces in the parcel of 750 gram "
Perusal of aforementioned statement reveals that case property produced in the Court was not in two pieces, it was neither about 1570-grams nor about 1000-grams rather it was comprising upon four pieces in the parcel of 750- grams, meaning thereby allegedly recovered case property in the case has not been produced in the Court.
Muhammad Iqbal 460/HC (Naib Moharir) while appearing as PW -4 clearly deposed as under: - "On 25.01.2018 I handed over one parcel of sample to Khizar Hayat SI for its onward transmission to PFSA, Lahore " (emphasis added)
Whereas Khizar Hayat S.I. while appearing as PW-3 has deposed otherwise and relevant portion of his statement is being reproduced:- "On 29.01.2018 , Moharrar Muhammad Iqbal handed over to me one sealed parcel stated to contain sample of chars, for its onwards transmission to PFSA, Lahore. On the same day, I deposited parcel at PFSA, Lahore "
(emphasis added)
Aforementioned statements of PW-3 and PW-4 have clearly demolished the safe custody of parcel of sample because PW-4 says that he handed over parcel of sample to Khizar Hayat S.I. on 25.01.2018 whereas Khizar Hayat, S.I. (PW-3) has not deposed that he received said parcel on 25.01.2018 rather he categorically stated that he received the same on 29.01.2018, so, question does arise that where parcel of sample remained from 25.01.2018 to 29.01.2018; said fact has clearly demolished the safe custody of parcel of sample. Proving unbroken chain of safe custody of parcel of sample from point/date of recovery to its receipt in the office of Govt.
Analyst is mandatory in the cases involving recovery of narcotics and it is rightly so because in such cases recovery is not mere corroboratory piece of evidence rather itself constitutes the charge and entails punishment, in this regard guidance has been sought from the dictum laid down in case of "The State through Regional Director ANF versus Imam Bakhsh" (2018 SCMR 2039) and "Abdul Ghani and others versus The State and others" (2019 SCMR 608); relevant portion from the latter case law is being reproduced:- "There is hardly any occasion for discussing the merits of the case against the appellants because the record of the case shows that safe custody of the recovered substance as well as safe transmission of samples of the recovered substance to the office of the Chemical Examiner had not been established by the prosecution in this case. Nisar Ahmed, S.I./SHO complainant (PW1) had stated before the trial court that he had deposited the recovered substance at the Malkhana of the local Police Station but admittedly the Moharrir of the said Police Station had not been produced before the trial court to depose about safe custody of the recovered substance. It is also not denied that Ali Sher, H.C. who had delivered the samples of the recovered substance at the office of the Chemical Examiner had also not been produced during the trial so as to confirm safe transmission of the samples of the recovered substance. It has already been clarified by this Court in the cases of The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039 ), Ikramullah and others v. The State (2015 SCMR 1002 and Amjad Ali v. The State (2012 SCMR 577) that in a case where safe custody of the recovered substance or safe transmission of samples of the recovered substance is not proved by the prosecution through independent evidence there it cannot be concluded that the prosecution had succeeded in establishing its case against the appellants beyond reasonable doubt. The case in hand suffers from the same legal defects. This appeal is, therefore, allowed, the convictions and sentences of the appellants recorded and upheld by the courts below are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required to be detained in connection with any other case."
7. In view of what has been discussed above, prosecution has been failed to prove its case against the appellant beyond shadow of doubt, hence, there is no need to discuss defence version.
8. Resultantly , instant appeal is allowed/accepted , conviction and sentence recorded against the appellant through the impugned judgment dated 09.01.2019 passed in case arising out of F.I.R No.13/2018 dated 24.01.2018 registered under Section 9 (c) of the Control of Narcotic Substances Act, 1997 at Police Station Muhammad Wala, District Chiniot, are hereby set aside. The appellant is acquitted of the charge, he shall be released from jail, forthwith, if not required in any other case.