ABDUL HAMEED BALOCH, J.---This criminal revision petition has been directed against the judgment dated 31st August, 2019 passed by Judicial Magistrate, Usta Muhammad (trial Court), whereby the petitioner was convicted under Article 4 of Prohibition (Enforceme nt of Hadd) Order , 1979 (Order 1979) and sentenced to suffer two years rigorous imprisonment with fine of Rs. 5000/- and in default thereof to further suffer two months simple imprisonment and judgment dated 3rd October , 2019 (impugned judgment) passed by Additional Sessions Judge, Usta Muhammad, (appellate court), whereby the sentence awarded to the petitioner was reduced to one year and fine to the tune of Rs. 3000/- and in default thereof to undergo one month simple imprisonment.
2. Precise facts of the case were that on 13th May 2019 FIR No.65 of 2019, was registered under Articles 3, 4, Prohibition (Enforcement of Hadd) Order , 1979, with Police Station City Usta Muhammad, on the report of Karam Hussain ASI, on the allegation of recovery of twenty liters alcohol from the jerry-cans carried by him on motorcycle.
3. After submission of challan, trial commenced. The trial court framed charge, to which the petitioner and co- accused denied; whereafter , the prosecution produced three witnesses in order to substantiate the charge. After close of prosecution evidence the petitio ner and co-accused were examined under section 342, Cr.P.C., wherein they denied the allegation. They neither recorded their statement on oath as mandated by section 340(2), Cr.P.C., nor produced evidence in defence.
4. After conclusion of trial the learned trial court convicted and sentenced the petitioner in the terms as mentioned in para-1, whereas co-accused Hussain Bakhsh was acquitted of the charge. Being aggrieved the petitioner filed appeal before Additional Sessions Judge, Usta Muhammad, who was please d to reduce the sentence as mentioned in para-1 above vide impugned judgment, hence this revision petition.
5. Heard the learned counsel for the petitioner and Deputy Prosecutor General and also perused the available record. It is the case of the prosecution that during course of routine checking the police recovered twenty liters alcohol from the possession of the petitioner . The prosecution has examined three witnesses in order to substantiate its case. PW-1 and PW-2 are ocular witnesses, while PW-3 is Investigating Officer. On registration of FIR the investigation was entrusted to PW-3, who proceeded to the place of arrest of accused, where the recovered material and other relevant documents were handed over to him. He recorded statements of witnesses, dispatched the sample to Forensic Science Laboratory for analysis. The contraband (alcohol) received at FSL on 22nd May, 2019, with the delay of seven days and .there was no A explanation that where the contraband was kept and in whose custody . It is bounden duty of the prosecution to prove safe custody and transmission of referred material through confidence inspiring evidence. Mere verbal assertion cannot be enough. It is an admitted principle that where the law provides for doing a thing in a particular manner it should B be done on that manner , otherwise not done at all. The prosecution did not record the statement of police official through whom the contraband sample was dispatched to FSL to prove safe transmission of the contraband from the custody of the Police Station to the Chemical Analyst, which act on the part of the prosecution creates serious doubts in the whole prosecution's case.
For rendering this view, I am fortified from the dictum laid down by the Hon'ble Supreme Court of Pakistan on the case of Razia Sultana v . State 2019 SCMR 1300 , wherein it has been held as under: "2. At the very outset, we have noticed that the sample of the narcotics drugs was dispatched to the Government Analyst for chemical examination on 27.2.2006 through one Imtiaz Hussain, an officer of ANF but the said officer was not produced to prove safe transmission of the drug from the Police to the chemical examiner . The chain of custody stands compromised as a result it would be unsafe to rely on the report of the chemical examiner . This Court has held time and again that in case the chain of custody is broken, the Report of the chemical examiner loses reliability making .it unsafe to support conviction."
6. Perusal of record transpires that the statements of prosecution witnesses are contradictory to each other despite the fact that the witnesses alleged that all of them were present at the spot. PW-1 'stated that the place of occurrence was a thoroughfare. The Investigating Officer came at the spot at 10:45 a.m. The witness further stated that he prepared sealed parcels Nos. 1 and 2 of Jeri can. The recovery memo was prepared by him, while PW-2, recovery witness, stated in a manner: {{URDU TEXT}}
7. The reply of referred to witness in cross-examination belies the statement of complainant (PW-1). The Investigating Officer stated that he reached at the spot at 11.30 a.m. It further contradicts the version of PW-1.
Such discrepancies and contradictions are material when the witnesses (PW-1 and PW-2) proceeded together and remained there till arrival of the Investigating Officer. Reliance is placed on case law titled Minhaj Khan v The State 2019 SCMR 326 , in which it was held: ".......PW1 stated that the place of occurrence, that is the place where the petitioner was apprehended and arrested, "was at a distance of about 2/3 kilometers towards west from police post" but PW-2 stated that, "the place of occurrence is at a distance of 1 kilometer from the police post". The discrepancy in the distance becomes material when both these witnesses were shown to be performing duties in the area. PW-1 and PW-2 stated that in addition to them there was Constable Jehanzeb Khan and Constable Shoaib Afzal in the said car, but neither remembered who was sitting in the front seat next to the driving seat whilst remembering other minute details such as noting, that the petitioner was holding the blue shopping bag in his right hand. PW-1 did not know the owner of the car and PW-2 stated that he, "had the private car from someone on the basis of curtsy" [sic.] but did not disclose the name of the owner of the vehicle. The petitioner had throughout maintained that he was roped into a false case because he and his wife ran 'Muhammad All Public School' and an influential of the area who ran another school, 'Al-Meenar Public School', wanted to have the petitioner's school closed down as the petitioner and his wife's school competed with them. Both these witnesses professed complete ignorance about the schools, which is surprising considering they were serving in the area. Another significant contradiction was that whilst PW-1 in his cross-examination stated that upon seeing the policemen the, "accused had not run. 1 and Shoaib Constable had over powered the accused"
In view of above discussion the criminal revision petition filed by the petitioner is accepted. The impugned judgments dated 31st August, 2019 and 3rd October , 2019 passed by learned Judicial Magistrate, Usta Muhammad and Additional Sessions Judge, Usta Muhammad respectively are set aside. Consequently the, petitioner Ali Ahmed son of Wali Dad, is acquitted of the charge under Article 3 of Prohibition (Enforcement of Hadd) Order , 1979, pursuant to FIR No. 65 of 2019, Police Station City Usta Muhammad. He be released at once if not required in any other case.