Farooq Haider , J.:- This appeal has been filed against the judgment dated 20.02.2019 passed by learned Additional Sessions Judge, Pir Mahal whereby in case arising out of F.I.R. No.200/2016 dated 20.05.2016 registered under Section 9 (c) of the Cont rol of Narcotic Substances Act, 1997 at Police Station Pir Mahal, Toba Tek Singh (Ex. P A/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 06 years with fine of Rs.30,000/- and in default thereof the appellant was directed to further undergo S.I for 06 months. Benefit of section 382-B, Cr .P.C. was also extended to the appellant.
2. Briefly , the accusation levelled in the complaint (Ex.P A) drafted and sent by Ghulam Murtaza ASI/complainant/ PW-4, against the appellant, on the basis of which, above mentioned F.I.R. was chalked out, is that on 20.05.2016, he along with other police officials was present at Adda Chak No.680/21, 681/22 Bhussi Road in connection with patrolling duty where he received spy information that Shoukat Ali (appellant), who deals with the business of narcotics, is present at Adda 18 Bhussi Road near the bridge of canal and if a raid is conducted, then he could be apprehended; on receiving this information, the complainant conducted a raid at said place and apprehended the appellant; on his search, heroin weighing 1130-grams in a shopping bag was recovered from the possession of the appellant; out of recovered heroin , one-gram was separated for chemical analysis and secured into a parcel 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. It has been noticed that Shahid Rafiq ue 805/HC (Moharir) while appearing as PW-1 clearly deposed that on 20.5.2016 Ghulam Murtaza ASI handed over to him two sealed parcels said to contain heroin for keeping the same in safe custody in Maal Khana and on 30.5.2016 he handed over one sealed parcel of sample to Haq Nawaz ASI for onward transmission to Punjab Forens ic Science Agency , Lahore; Muhammad Haq Nawaz ASI while appearing as PW -3 has deposed as under:- "On 30.5.2016 I was posted as ASI at Police Station, Pir Mahal. On the same day naib moherrer police station handed over to me one sealed parcel said to contain Heroin for onwards transmission to PFSA Lahore for chemical examination. On 3.6.2016 I delivered the same to said office intact. I.O recorded my statement on 4.6.2016 in this regard" (emphasis added)
Perusal of statements of PW-2 and PW-3 clearly reflects that one sealed parcel was given by Shahid Rafique 805/HC (Moharir) to Muhammad Haq Nawaz ASI, who delivered the same to Punjab Forensic Science Agency, Lahore whereas report of Punjab Forensic Science Agency, Lahore (Ex.PD) clearly shows that two parcels were received by said office in this case: one was approximately one gram of suspected heroin and other was 1129 grams of suspected heroin, now question does arise that how second parcel reached there, who took it there, who got sent the same to Punjab Forensic Science Agency, Lahore; this state of affairs, raises eyebrows with respect to safe custody of parcel of case property . Furthermore, perusal of statements of aforementioned PWs also depicts that on 30.5.2016 parcel of sample was handed over to Muhammad Haq Nawaz ASI but it was not delivered on that or the very next day rather as per report of Punjab Forensic Science Agency , Lahore, it was delivered there on 03.06.2016, question again does arise that where it remained during this period, why delivered with such delay and whether it remained in safe custody during this period, this scenario has smashed the claim of safe custody with respect to parcel of sample.
Report of Punjab Forensic Science Agency , Lahore (Ex.PD) further reveals as under: - "Disposition of evidence: After sampling for analysis, the remaining portion of evidence from the applicable item(s) was sealed and handed over to the evidence submitting person"
Perusal of aforementioned operative part of report of Punjab Forensic Science Agency , Lahore clearly depicts that after sampling for analysis, remaining portion of the aforementioned parcel was sent back, now question does arise that how much portion was retained for sampling, how much was sent back, when sent back, through whom sent back, who received it back; it is important to mention here that Muhammad Haq Nawaz ASI has never deposed that after depositing sample in Punjab Forensic Science Agency , Lahore, he brought back any remaining portion of said parcel from there or after bringing the same back handed over the same to Moha rir or anybody else. It is again a mystery and question does arise that how case property reached in the Court in this case and whether it was the same case property particularly when its receiving back from the office of Punjab Forensic Science Agency , Lahore has not been got proved by the prosecution.
Shahid Rafique 805/HC (Moharir/PW -1) has categorically stated in his statement that on 20.5.2016 Ghulam Murtaza ASI handed over him two sealed parcels said to contain heroin for keep ing the same in safe custody in Maal Khana, however , Ghulam Murtaza ASI while appearing as PW-4 has categorically stated that he handed over parcels of case property and sample to Muhammad Arshad SI, relevant portion of his statement is being reproduced: - "Thereafter, Muhammad Arshad SI reached at the spot. I handed over to him the copy of complaint, recovery memo, the recovered Narcotic and its separated parcels and the custody of the accused Shoukat"
Perusal of aforementioned statements clearly establishes that safe custody of parcel of case property and sample has not been proved in this case. Proving unbroken chain of safe custody of case property and parcel of sample from the point/date of recovery to its receipt in Punjab Forensic Science Agency , Lahore and then production of case property in the Court 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 connecti on 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 20.02.2019 passed in case arising out of F.I.R No.200/2016 dated 20.05.2016 registered under Section 9 (c) of the Control of Narcotic Substances Act, 1997 at Police Station Pir Mahal, Toba Tek Singh, 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.