Ishtiaq Ibrahim, J.--Appellant Amshad Ali son of Muhammad Ali has called into question the validity of the judgment dated 23.09.2019 passed by the learned Additional Sessions Judge-III/Judge Special Court/Model Criminal Trial Court, Nowshera, vide which he was convicted under Section 9(c) CNSA and was sentenced to rigorous imprisonment for three years with a fine of Rs. 20,000/- or in default to undergo simple imprisonment for one month. Benefit of Section 382-B, Cr .P.C. was also extended to the appellant.
2. Facts of the prosecution case are that on 13.08.2017, complainant Javed Khan S.I (PW-1) while on gasht received information regarding smuggling of huge quantity of contraband charas through Honda Motorcycle bearing Registration No. 1624; that on receiving information, he alongwith rider constables Ambar Shah No. 747, Rizwan No. 324 and other police contingent laid picket on thoroughfare of Wazir Ghari near Dag Besud Chowk; that at 10.15 hours the said motorcycle came from Wazir Ghari side, which was stopped for the purpose of checking; that on query the rider of motorcycle disclosed his name as Amshad Ali son of Muhammad Ali; that during search of the motorcycle the complainant recovered three packets of charas each packet weighing 1200 grams; that the complainant separated sample of five grams from each packet for chemical analysis, sealed into Parcels No. 1 to 3 while the remaining charas was sealed into Parcel No. 4. The complainant took into possession the motorcycle and contraband charas vide recovery memo (EX PW 1/1). The complainant arrested the accused, drafted murasila and sent the same to police station for registration of case FIR against the accused through constable Rizwan No. 324.
3. On completion of investigation, challan was put in Court against the appellant. Formal charge Was framed against him, to which he did not plead guilty and claimed trial.
4. In order to bring home charge agains t the appellant, the prosecution produced as many as five PWs. Javed Khan SI the complainant (PW-1) reiterated the same story which he has mentioned in the murasila (EX PA/1), he also drafted application (EX PW 1/3) for chemical analysis of samples through FSL and the site plan (EX PB) was prepared at his pointation. Fayaz Khan SI (PW-2) deposed that on 13.08.2017 Parcels No. 1 to 3 containing 5/5 grams charas, Parcel No. 4 containing 3585 grams charas, motorcycle bearing Registration No. 1624 Honda-125, which he kept in safe custody and made entry in Register No. 19; that on 17.8.2017 he handed over Parcels No. 1 to 3 to constable Mumtaz for taking the same to the FSL. Ambar Shah HC (PW-4) deposed that he is marginal witness to recovery memo (EX PW 1/1) vide which the complainant recovered and took into possession three packets of charas from side cover of Honda motorcycle bearing Registration No. 1624. Anwar Khan SI (PW-5), who conducted investigation of the present case, prepared site plan (EX.PB) at the instance of complainant, recorded statements of the PWs as well as accused under Section 161, Cr .P.C.
5. On closure of prosecution evidence, statement of accused under Section 342, Cr.P.C. was recorded wherein he denied the allegations leveled against him. However , he neither wished to be examined on oath nor opted to produce defence evidence.
6. On conclusion of trial, after hearing the learned counsel for the parties and appraising evidence on the file, the learned trial Court through the impugned judgment dated 23.09.2019, convicted and sentenced the appellant as mentioned in the opening paragraph of the judgment. Feeling aggrieved from his conviction and sentence, the appellant has filed the instant criminal appeal before this Court.
7. We have heard arguments of the learned counsel for the parties and perused the record with their valuable assistance.
8. Javed Khan SI, complainant of the case, has written in the Murasila (EX PA/1) that he recovered three packets of charas each packet weighing 1200 grams from right side cover of the motorcycle. During the trial, the prosecution did not produce and exhibit the said motorcycle in order to establish the recovery of contraband charas from it. The complainant separated sample of five grams from each packet, sealed into Parcels No. 1 to 3 while the remaining was sealed into Parcel No. 4 and drafted application (EX PW 1/3) for sending samples to the FSL. In the murasila (EX PA/1) the complainant has written that the murasila was sent to the police station through constable Rizwan No. 324. The complainant in his Court statement did not utter a single word regarding handing over of the case property to the Muharrir in the Polic e Station nor Fayaz Khan (PW-2) in his examination in chief has stated that the case property was handed over to him by the complainant, Investigating Officer, marginal witness to the recovery memo or by someone else. Furthermore, the complainant in the initial report as well as in the recovery memo (EX PW 1/1) has mentioned the registration number of the motorcycle as 1624, however , in the daily diary No. 10 dated 13.8.2017, wherein the complainant has written the registration number of the motorcycle in question as 1626, wherefrom the recovery of contraband charas was alleged. It has further been mentioned that he brought the accused and the motorcycle to the police station, the accused was put in the police station lock up and parked the motorcycle inside the premises of police station, however , he did not utter a single word regarding handing over of contraband charas to the Muharrir of the Police Station. The complainant in his cross examination stated that: "I do not know that after how much time Investigation Officer reached to the spot. We were called by the Investigation Officer to the spot. When Investigation Officer reached the spot neither the accused nor case property was preset on the spot. I had not noted the time for which investigation officer remained on the spot."
To the contrary Ambar Shah HC (PW-4) in his cross examination stated that "I do not know after how much time the Investigation Officer reached to the spot. When Investigation Officer reached to the spot, I, Javed Khan and other police contingents were present on the spot."
The complainant in his cross examination stated that all the recovered three packets were of the same weight i.e. 1200/1200 grams each, that he do not remember the size of each packet, that in each packet contains how many slabs and has not mentioned in the initial report as to whether the charas was pukhta or garda, and on the request of learned defence counsel, the Naib Court was directed to de-seal Parcel No. 4 containing the case property , and the learned trial Court recorded the following observations: "Parcel No. 4 was opened which contains three packets of charas alongwith white shopping bag. Further from de-seal of each packet, two packet contain five sub-slabs while one packet contain four slabs."
The complainant in murasila (EX PA/1) has mentioned that three packets of charas were recovered from the left side cover of the motorcycle and separated five grams from each packet of charas as sample for chemical analysis, but the observations recorded by the trial Court totally negates the version of prosecution and no sample from each slab of contraband has been taken and sent to laboratory for analysis.
9. Above all, the alleged recovery was effected on 13.08.2017 and application (EX PW 1/3) for sending samples to the FSL was drafted on the same date, and the samples of contraband were sent to FSL through constable Mumtaz on 17.08.2017 vide Randari receipt (EX PW 2/2). Perusal of FSL report (EX PZ) reveals that the samples were brought by HC Mumtaz, but it is pertinent to mention here that the prosecution has not produced the said Mumtaz before the Court to prove that he took samples to the FSL. There is delay of about four days in sending the samples. So, its safe transmission to the FSL has not been duly proved by the prosecution. Any break in the chain of custody or lapse in the control of possession of the samples, would cast doub ts on the safe custody and safe transmission of the samples and would impair and vitiate the conclusiveness and reliability of the report of the Government Analyst, thus, rendering it incapable of sustaining conviction. In this regard, we are fortified by the judgment of the Hon'ble Supreme Court rendered in Abdul Ghani's case (2019 SCMR 608), wherein it is held that: " ... 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.LISHO complai nant (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 "
10. The crux of the above discussion is that the prosecution case is full of contradictions, doubts and dents. It is settled principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. Guidance is sough t from the judgment of the Apex Court rendered in Taria Pervez's case (1995 SCMR 1345 ), wherein it was held that: "If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
11. For what has been discussed above, we accept this appeal, set aside the impugned judgment dated 23.09.2019 and acquit the appellant from the charge under Section 9(c) CNSA, 1997 levelled against him. He shall be set at liberty forthwith if not required in any other case.
Above are the detailed reasons of our short order of even date. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.