Miss Aalia Neelum, J.--The appellant Talib Hussain son of Muhammad Salus, caste Kharal Aqil Ka, resident of Chak No.366/GB, Tehsil Jaranwala, District Faisalabad, was involved in case F.I.R No.68 of 2017, dated 26.01.2017, offence under Section 9(C) of the Control of Narcotic Substances Act, 1997, registered at Police Station Kotmomin, District Sargodha and was tried by the learned Addl. Sessions Judge, Bhalwal. The learned trial Court seized with the matter in terms of judgment dated 03.01.2018, convicted the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to undergo rigorous imprisonment for 04-ye ars with the direction to pay Rs.20,000/- as fine and in case of default in payment thereof, to further undergo simple imprisonment for 04-months. The benefit of Section 382-B, Cr.P.0 was also extended in favour of the appellant.
Feeling aggrieved, the appellant has assailed his conviction through filing the instant appeal.
2. The prosecution story as alleged in the F.I.R (Ex.P A/1) lodged on the complaint (Ex.P A) of Muhammad Amin, S.I (PW-4) is that on 26.01.2017 at about 5:15 p.m., he (PW-4) along with Mushtaq Ahmad 1418/C (PW-3), Azhar Mahmood 1863/C (given up PW) and Javed Iqbal 1400/C, was present at Kotmomin Interchange, Lahore side in connection with patrolling duty and searching of drug peddlers, where one person, who later on disclosed his name as Talib Hussain, came on foot from Toll Plaza and he (the appellant) was holding shopper bag, having blue colour , in his right hand, who on seeing the police party , tried to turn back but was apprehended due to suspicion. During checking of the shopper bag two packets of charas weighing 2305-grams (P-1/1-2) were recovered. During search of the appellant, wattak amount Rs.140 0/-, two notes denomination Rs.500/- each (P-2/1-2) and four notes of Rs.100/- denomination each (P-3/1-4), mobile phone (P-4) were recovered from the front of pocket of his shirt. The recovered substance, wattak amount and mobile phone were taken into possessio n vide recovery memo. (Ex.PB).
Thereafter , the complainant (PW-4) drafted complaint (Ex.P A) and sent the same through Javaid Iqbal 1863/C to the Police Station for registration of the formal FIR (Ex.P A/1).
3. Thereafter , the investigation was entrusted to Muhammad Mushtaq S.I (PW-5), who being Investigating Officer of the case visited the place of occurrence and prepared the site-plan (Ex,PC) of the place of recovery , recorded the statements of the prosecution witnesses under Section 161, Cr.P.0 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.
4. The learned trial Court formally charge sheeted the appellant on 05.05.2017, to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as five witnesses. Haq Nawaz, ASI (PW:1) chalked out formal FIR (Ex.P A/1). Maqbool Ahmad 1415/HC (PW-2) is Moharrar of the Police Station, Mushtaq Ahmad 1418/C (PW-3) is the recovery witness, Muhammad Amin SI (PW-4) is the complainant and Muhammad Mushtaq, SI (PW -5) is the Investigating Of ficer.
5. On 23.12.2017, the learned DDPP gave up PW-Azhar Mahmood 1863/C being un-necessary and after tendering the report of Punjab Forensic Science Agency , Lahore (Ex.PD) closed the prosecution evidence.
6. The appellant was also examined under Section 342, Cr.P.C, wherein he neither opted to appear as his own witness in terms of Section 340(2), Cr.P.C, nor opted to produce any defence evidence and while replying to a particular question that why the PWs had deposed against him, the appellant made the following deposition:-- "All the PWs are police officials and they have deposed falsely against me. Nothing was recovered from my possession."
7. After hearing the arguments advanced by the learned counsel for the appellant as well as the learned DDPP , 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.
8. Despite repeated calls, no one has entered appearance on behalf of appellant, therefore, Ms. S. Parveen Mughal, Advocate is hereby appointed as defence counsel of State expenses today .
9.. We have heard the arguments advanced by the learned counsel for the appellant as well as the learned Deputy Prosecutor General and have minutely perused the record available on the file.
10. In a criminal case trial, initial burden of proof is always on the prosecution and the said burden is quite heavy .
The prosecution has to prove its case beyond reasonable doubt. There are contradictions in the case of the prosecution as to date of dispatch of the parcel of sample and deposit of the parcel of sample in the Officer of Punjab Forensic Science Agency , Lahore. In this regard, most important testimony was of Maqbool Ahmad, 1415/HC (PW -2)- Moharrir . Maqbool Ahmad, 1415/HC (PW -2)-Moharrir deposed during his Court statement that:-- "On 20.02.2017, Muhammad Amin, SI again handed over to me one sealed parcel said to contain charas after chemical analysis which I kept in the malkhana for safe custody intact."
Whereas, Muhammad Amin, S.I./S.H.O (PW -4)-the complainant, deposed during examination-in-chief that:-- "On 20.02.2017, Maqbool Ahmad Moharrir handed over to me one sealed parcel said to contain charas for its onward transmission to the office of PFSA, Lahore. I deposited the same in the office of PFSA, Lahore on the same day, intact. On the same day, after chemical analysis, I handed over the same parcel to Maqbool Ahmad 'Moharrir , who kept the same in safe custody in malkhana."
Besides, on perusal of Narcotics Analysis Report (Ex.PD) it reveals that parcel of recovered contraband substance was submitted on 06-03-2017 by Muham mad Amin, S.I. (PW-4) the complainant and after sampling for analysis, the remaining case property was handed over to Muhammad Amin, S.I. (PW-4)-the complainant and case property (P-1/1-2) was examined by the analyst on 10.04.2017. Maqbool Ahmad, 1415/1 1C (PW-2)-Moharrir admitted during cross-examination that, "It is correct that parcel was submitted to PFSA Lahore on 06.03.2017 ." Entire prosecution evidence is silent on this aspect of the case. Whereas as per prosecution witnesses i.e. PW-2 and PW- 4 parcel of recovered substance was handed over and submitted in the Officer of Punjab Forensic Science Agency , Lahore on 20.02.2017. Thereafter , on the same day i.e. 20.02.2017 Muhammad Amin, (PW-4)-the complainant handed over parcel of recovered substance to Maqbool Ahmad, 1415/HC (PW-2)-Moharrir after chemicall analysis for keeping it in safe custody in the malkhana. The relevant portion of Narcot ics Analysis Report (Ex.PD) is reproduced as under:-- "After sampling for analysis, the remaining portion of evidence from the applicable item (s) was sealed and handed over to the evidence submitting person."
The prosecution has to establish by cogent evidence that the alleged parcel of recovered charas (P-1/1,2) weighing 2305 grams recovered from the custody of the appellant remained in safe custody . There is no explanation for this failure to establish link with the parcel of charas (P-1/1-2) weighing 2305 grams received in the office of Punjab Forensic Science Agency , Lahore on 06.03.2017 and parcel of charas (P-1/1-2) weighing 2305 grams handed over by Maqbool Ahmad, 1415/HC (PW-2)-Moharrir to Muhammad Amin, S.I. (PW-4) the complainant on 20.02.2017.
The parcel of charas deposited in the Officer of Punjab Forensic Science Agency , Lahore on 06.03.2017 could not be related with the parcel of charas recovered from the possession of the appellan t. There is, thus, no evidence to connect the Narcotics Analysis Report (Ex.PD) with the substance that was seized from the possession of the appellant. It is considered opinion of the Court that the aforesaid inconsistencies and contradictions considered cumulatively do lead to irresistible influence that the prosecution has not been able to prove safe custody of the parcel, of recovered substance through material and cogent evidence. This contradiction went to the root of the case. The said contradiction in the deposition of the aforementioned police officials cannot be stated to be minor and irrelevant in the absence of the positive and material evidence. Accordingly the appellant deserves to be given benefit doubt and findings in this regard are required to be set aside and the same are set aside.
11. All above aspects do create strong doubt as regards truthfulness of prosecution version of recovery , seizer , dispatch of parcel of recovered subs tance. The record thus, is riddled with numerous inconsistencies, improbabilities and glaring contradictions which strike at the very root of the case and create doubt as regards truthfulness of prosecution case. The, prosecution has failed to prove its case beyond reasonable doubt. It cannot be said that the prosecution version is not free from doubt for upholding the conviction and sentence as rendered by the learned trial Court.
12. Accordingly , benefit of doubt is extended to the appellant, thus the Criminal Appeal No.252345 of 2018 is allowed and the appellant Talib Hussain is acquitted of the charge. The conviction and sente nce passed by the learned trial Court vide the impugned judgment dated 03.01.2018 in case F.I.R. No.68 of 2017, dated 26.01.2017, offence under Section 9(C) of the Control of Narcotics Substances Act, 1997 registered at Police Station Kotmomin, District Sargodha is hereby set aside and he is directed to be released from the jail forthwith, if not required in any other criminal case.