Farooq Haider , J.:- This appeal has been filed against the judgment dated 23.10.2017 passed by learned Additional Sessions Judge/Special Judge CNSA, Ferozewala, whereby in case arising out of F.I.R No.258/2017 dated 22.03.2017 registered under Section 9 (c) of the Control of Narcotic Substances Act, 1997 at Police Station Ferozewala, District Sheikhupura (Ex.PA), the learned trial Court has convicted and sentenced the appellants as under: - Zahida Parveen alias Gooma "under Section 9 (c) of the Control of Narcotic Substances Act, 1997 to simple imprisonment for seven years and six months with fine of Rs.35,000/- and in default thereof to further undergo for six months and fifteen days S.I. "
Asghar Ali alias Sabbi "under Section 9 (c) of the Control of Narcotic Substances Act, 1997 to rigorous imprisonment for four years and six months with fine of Rs.20,000/- and in default thereof to further undergo for five months S.I."
Benefit of Section 382-B Cr .P.C. was also extended to both the appellants.
2. Briefly , the prosecution story , as per Fard Biyan /complaint (Ex. PD), on the basis of which, above mentioned F.I.R. was chalked out, is that on 22.03.2017 at about 06:00 a.m.., Talat Mahmood S.I./complainant (PW-2) along with other police officials was present at Bus Stop, G.T. Road Ferozewala, on an official vehicle in connection with arrest of proclaimed offenders where he received spy information that ill-famed drug peddler namely Mst. Zahida alias Gooma and her son namely Asghar alias Sabbi are standing at Imamia Colony Stop, in order to deliver contraband to another drug peddler namely Iqbal alias Bali Butt and if a raid is conducted, they could be apprehended; on receiving this information, when the complainant along with raiding team reached at said place at 07:10 a.m., on seeing them, accused persons tried to decamp from the spot but they were apprehended with the help of raiding team; on personal search of accused/appellant Mst. Zahida alias Gooma through Asma Ameen 2290/L.C, five packets of charas in sleeper shape (weighing one kilogram each packet) total weighing 5-kilograms, from a shopping bag was recovered from her possession whereas on personal search of Asghar alias Sabbi, two packets of charas in sleeper shape (weighing one kilogram each packet) total weighing 2-kilograms from a shopping bag was recovered from him. The recovered charas was separated and secured into seven separate sealed parcels with stamp M.A.
After investigation, challan report was sent to Court against the appellants; charge was framed against them, to which they pleaded not guilty; prosecutio n produced its evidence. Learned trial Court recorded statement of the appellants under Section 342 Cr.P.C. wherein they refuted allegations leveled again st them, then learned trial Court after hearing learned counsel for the parties passed the impugned judgment, whereby the appellants were convicted and sentenced as mentioned above.
3. It is contended by learned counsel for the appellants that conviction recorded and sentence awarded to the appellants through the impugned judgment is against the law and facts; safe custody of case property has not been proved; he requested that conviction recorded and sentence awarded under Section 9 (c) of Control of Narcotic Substances Act, 1997 to the appellants may be set aside.
4. On the other hand, learned Deputy Prosecutor General has opposed the contentions raised by the learned counsel for the appellants and supported the impugned judgment.
5. Arguments heard. Record perused.
6. It has been noticed that Talat Mehmoo d SI/complainant appeared as PW-2, relevant portion of his statement is being reproduced: - "I made seven sealed parcels of the recovered charas and took five parcels of charas P-1/1-5 recovered from Zahida alias Gooma in my possession vide recovery memo Ex.P-B which was duly attested by the witnesses. I also took into possession two parcels containing charas P-2/1-2 recovered from accused Asghar alias Sabi vide recovery memo Exh.PC which was also duly attested by witnesses."
"Thereafter , I.O Ali Ahmad Sabir SI reached at the spot and I handed over the case property , accused persons and documents to him. Ali Ahmad Sabir SI/I.O told me that according to new instructions, samp le parcels should be separated from the case property . I separated 50-grams for sample parcel from each packets in the presence of the witnesses and accused persons, according to new instructions and made sealed parcels of the recovered charas and handed over the same to the I.O. " (emphasis added)
From the above quoted statement of PW-2, it reveals that no representative sample from each packet of allegedly recovered charas was separated and secured through sealed parcels of samples at the time of recovery rather subsequently at the time, when he handed over the case property and accused persons to Ali Ahmad Sabir, SI/I.O. then said I.O. asked him to prepare parcels of samples from each packet, upon which, Talat Mehmood SI/complainant/PW-2 separated 50-grams of charas from each alleged recovered packets of charas and secured through sealed parcels of samples and handed over the same to the Investigating Officer.
Similarly , Ali Ahmad Sabir S.I/I.O while appearing as PW -4 has deposed as following: - "When Talat Mehmood SI handed over to me the sealed parcels said to contain charas I asked him to separate sample parcels from the case property for the purpose of onward transmission to the PFSA Lahore. In my presence Talat Mahmood SI separated sample parcels from the case property"
"Afterwards I came back to the police station and handed over the case property to the Moharrar " (emphasis added)
From the perusal of above statement of PW-4 it is crystal clear that on 22.03.2017 he only handed over case property to the Moharir and did not hand over parcels of sample to the Moharir. Moreover, the recovery witness namely Mubasher Naseem ASI and lady constable Asma Ameen while appearing as PW5 and PW-6 have not deposed about separating and preparing parcels of sample out of case property by Talat Mehmood SI/complainant/PW-2 on the asking of Investigating officer/PW-4 in their presence. No recovery memo with respect to securing parcels of samples has been prepared. It is trite of law that after preparing sealed parcels of the case property, neither complainant nor Investigating Officer is competent to deseal the same and prepare separate parcels of sample out of it, because once case property has been sealed, then only Court can prepare sample of case property out of it, while exercising powers under Section 516-A Cr.P.C. Furthermore, PW-4 has himself conceded that sealed case property cannot be reopened without permission of the Court, relevant portion of his statement is being reproduced: - "It is correct that once a parcel was sealed it cannot be reopened without the permission of concerned Court"
Therefore, in the instant case, concept of safe custody of the case property has been smashed; parcels of samples prepared can also be not considered as validly prepared, thus, of no legal value and their preparation is hit by the famous maxim, "A communi observantia non est recedendum" (where a thing was provided to be done in a particular manner, same has to be done in that manner and if not done, so would not be lawful). Muhammad Ashfaq 323/HC (Moharir) while appearing as PW-3 categorically stated that on 07.6.2017, he handed over parcels to Ali Ahmad Sabir S.I for onward transmission to Punjab Forensic Science Agency, Lahore, however, Ali Ahmad Sabir S.I while appearing as PW-4 has never stated that parcels were handed over to him by Moharir or he deposited the same in Punjab Forensic Science Agency, Lahore. Therefore, safe custody of parcels of samples from point/date of recovery to its receipt in Punjab Forensic Science Agency, Lahore has not been proved, similarly, safe custody of case property from recovery to its production in the Court has not been proved. It is important to mention here that proving unbroken chain of safe custody of case property and parcel of sample is necessary for conviction in narcotics cases, because recovery in such cases is not mere corroboratory piece of evidence rather itself constitutes the charge and entails punishment and if said unbroken chain of safe custody has not been proved, then it is fatal for the case of prosecution. In this regard, guidance can be sought from the 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 the light of what has been discussed above, prosecution has been failed to prove its case against the appellant beyond shadow of doubt, therefore, there is no need to discuss defence version.
8. Resultantly , this appeal is allowed/ac cepted, conviction recorded and sentence awarded to the appellants through the impugned judgment dated 23.10.2017 passed in case arising out of F.I.R No.258/2017 dated 22.03.2017 registered under Section 9 (c) of the Control of Narcotic Substances Act, 1997 at Police Station Ferozewala, District Sheikhupura, are hereby set aside. The appellants are acquitted of the charge, they shall be released from jail forthwith if not required in any other case.