FAROOQ HAIDER, J. Through this single judgment Criminal Appeal No.183768/2018 , filed by Arzi Gull and Jean Marie (appellants) against judgment dated 13.03.2018 passed by learned Additional Sessions Judge, Lahore whereby in case arising out of FIR No.242/2017 dated 03.03.2017 registered under section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station Defence-A Lahore (Ex.P A) Arzi Gull (appellant) has been convicted and sentenced under section 9(c) of Control of Narcotic Substances Act, 1997 to 03 years' simple imprisonment with fine of Rs.14, 000/- and in default thereof to further undergo 03 months and 10 days' S.I. whereas Marie (appellant) has been convicted and sentenced under section 9(c) of Control of Narcotic Substances Act, 1997 to 04 years and 06 months' rigorous imprisonment with fine of Rs.20,000/- and in default thereof to further undergo 05 months' S.I. with benefit of section 382-B, Cr.P.C.; and Criminal Revision No.235939/2018 for enhancement of sentence of appellants Jean Marie and Arzi Gull (who were issued notices for enhancement of sentence by this Court on 12.9.2018 and 14.11.2018 respectively), are being decided together because both these matters have common question of law and facts and have arisen out of one and same judgment.
2. Briefly , the accusation levelled in the complaint Ex.PD against the appellant, on the basis of which, above mentioned FIR (Ex.P A) was chalked out, is that on 03.03.2017 at about 01:30 a.m. (night), Asad Iqbal SI/complainant (PW-5) along with other police officials was present at Main Boulevard Defence, Lahore; when on the basis of spy information, a raid was conducted at Defence Mor and Arzi Gull and Jean Marie (appellants) were apprehended by the police party , boarded on Honda Fit car bearing registration No.LE-17-2068; on checking, a shopper containing 2060 grams of Charas along with amount of sale proceed Rs.5000/- was recovered from the pockets of trouser of accused Jean Marie whereas from the handbag of accused Arzi Gull a shopper containing 2025 grams of Charas along with amount of sale proceed Rs.3000/- was recovered; the recovered charas was separately secured and sealed into two parcels.
After investigation, challan report was sent to Court against the appellants; charge was framed against them, to which they pleaded not guilty; prosecution produced its evidence. Learned trial Court recorded statement of the appellants under section 342, Cr.P.C. wherein they refuted allegations levelled against 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. Learned counsel for the appellants submits that impugned conviction, sentence and judgment is against the law and facts; safe custody of the allegedly recovered narcotics has not been proved by the prosecution and thus, prayed for acceptance of the appeal by setting aside the impugned conviction and sentence.
4. Conversely learned Deputy Prosecutor General has opposed the contentions raised by the learned counsel for the appellants and has supported the impugned judgment by contending that prosecution has proved its case beyond shadow of doubt.
5. Arguments advanced by the learned counsel for the appellants as well as learned Deputy Prosecutor General have been heard and the record has been perused.
6. We have observed that Muhammad Asif 4424/MHC (Moharir) appeared as PW -2 before the Court and deposed as under: - "On 03.03.2017 I was posted at P.S Defe nse-A, Lahore as Moharar Mall Khana. On the same day, Asad Iqbal S.I handed over to me two sealed parcels said to contain charas weighing 2060 grams and 2025 grams sealed with the stamp of MA which I kept in the Mall Khana for safe custody . On 09.3.2017, I handed over both the parcels to Khalid Hussain ASI for its onward transmission to the office of PFSA, Lahore. The parcels remained intact in my custody ."
Relevant portion of cross-examination of PW -2 Muhammad Asif is also reproduced below:- "It is correct that after handing over the case property to Khalid Hussain ASI I did not have any concern with the case property , even he too did not hand over the same to me again." (emphasis added)
Whereas Khalid Hussain ASI while appea ring as PW-3 deposed about taking case property from the Moharir and its deposit in the office of Punjab Forensic Science Agency , Lahore and for ready reference, his examination-in-chief along with relevant portion of cross-examination is being reproduced below: - "On 09.03.2017 I was posted at P.S Defense-A, Lahore. On the same day, Moha rar of the police station handed over to me two parcels said to contain charas out of which one parcel was weighing 2060 grams sealed with the stamp of MA recovered from accused Jain Marry and second parcel weighing 2025 grams sealed with the stamp of MA recovered from Arzi Gull, for onward submission to the office of PFSA, Lahore along with road certificate which I deposited on the same day and returned the parcels of case property and road certificate to the Moharar of police station. The parcels remained intact in my custody . (emphasis added).
I.O. recorded my statement. Ex.DA is my statement under section 161, Cr.P.C. which was recorded by the I.O. It is correct that I did not mention in my statement under section 161, Cr. P.C. about the fact of receiving the parcels of case property from PFSA, Lahore or handing over of parcels of case property to Moharar . It is correct that 1 did not deposit the parcel of case property in the Sadar Mall Khana in this case. (emphasis added) ................................................................................................................................................... ....................................................................................................................................................
I did not mention anywhere with regard to receiving back the case property from PFSA, Lahore and its handing over to Moharar , volunteered Moharar has the knowledge of same ." (emphasis added)
Asghar Ali SI/Investigating Of ficer appeared as PW -2 and relevant portion of his cross-examination is being reproduced:- "It is correct that Khalid Hussain ASI and Muhammad Asif Moharar have never uttered a single word regarding return of case property from the office of PFSA, Lahore." (emphasis added)
According to the report of Punjab Forensic Science Agency , Lahore Ex. PI after sampling for analysis, the remaining portion of evidence i.e. case property was sealed and handed over to submitting person meaning thereby after retaining sample for analysis remaining case property was returned back by the Punjab Forensic Science Agency , Lahore on the same day through Khalid Hussain ASI. However , statement of Moharir clearly reflects that Khalid Hussain ASI did not hand over parcels of case property to him after return from Punjab Forensic Science Agency , Lahore. Similarly aforementioned portion of statement Khalid Hussain ASI also reflects that even in his statement under section 161, Cr.P.C. he did not mention this fact that after receiving parcels of case property from Punjab Forensic Science Agency , Lahore, he handed over the same to Moharir and it has been established from his statement that he even did not deposit that parcels of case property in Sadder Mall Khana in the instant case. Furthermore, statement of Asghar Ali SI, who is Investigating Officer of this case, also reflects that neither Khalid Hussain ASI nor Muhammad Asif 4424/MEC (Moharir) uttered before the Investigating Officer that case property was received back from the Punjab Forensic Science Agency , Lahore through Khalid Hussain ASI by Moharir . In view of this, chain of safe custody of case property from its recovery to its production in the Court has not been established, rather it has been broken. In this regard, reliance can be placed upon the case of "Ikramullah and others v. The State " (2015 SCMR 1002 ). "The State through Regional Director ANF v. Imam Bakh sh" (2018 SCMR 2039 ). In this regard, guidance can also be sought from another recent pronouncement dated 13.09.2018 delive red by Full Bench of august Supreme Court of Pakistan in case of "Abdul Razzaque v. The State" (Criminal Review Petition No.69 of 2018 in Jail Petition No.301 of 2014), the relevant portion whereof is being reproduced below for ready reference:- "It has already been held by this Court in the case of Amjad Ali v.The State (2012 SCMR 577) and Ikramullah and others v. The State (2015 SCMR 1002 ) that in a case where safe custody of the recovered substance or safe transmission of the samples of the recovered substance is not proved by the prosecution there an accused person cannot be convicted in such a case. This aspect of the case had escaped attention of this Court at the time of passing the order under review ."
It is well-settled principle of law that single dent in case of prosecution is sufficient for acquittal, in this regard, reliance can be placed upon the case of "Tariq Pervez v. The State" (1995 SCMR 1345 ), "Muhammad Akram v. The State" (2009 SCMR 230), "Muhammad Zaman v. The State and others" (2014 SCMR 749), "Muhammad Mansha v. The State " (2018 SCMR 772), "Abdul Jabbar and another v.
The. State " (2019 SCMR 129 ) and "Mst. Asia Bibi v . The State and others" (PLD 2019 SC 64 ).
7. Another important aspect of this case is that Muhammad Asad Iqbal SI/complainant while appearing as PW-5 before the Court has categorically stated during cross-examination that recovered charas was in shape of slabs and in white colour plastic shopping bag, relevant portion is being reproduced:- "Recovered charas was in shape of slabs but I do not remember the number of slabs. Recovered charas was wrapped in white colour plastic shopping bag. I took into custody said white colour shopping bag." (emphasis added)
Whereas when case property was desealed in the Court, this situation was otherwise, relevant portion is being reproduced:- "On de-sealing the case property P-3 of accused Arzi Gull the witness admitted it correct that a wrapper of dark brown colour is recovered from the parcel. He admitted that there is no white colour shopping bag in the sealed parcel. He further affirmed that charas present in the court is in the shape of countless small pieces and not in shape of slabs. ......................................................................................................................................................................................... ............................................................
On de-sealing the case property P-1 pertaining to accused Jan Marry the witness admitted it correct that a wrapper of dark brown colour is recovered from the parcel. He admitted that there is no white colour shopping bag in the sealed parcel. He further affirmed that charas present in the court is in the shape of countless small pieces and not in shape of slabs."
This state of affairs has also raised question mark about safe custody and produ ction of case property before the Court because case property according to own statement of prosecution witness was in shape of slabs and wrapped in white colour plastic shopping bag but case property produced in court was in wrapper of dark brown color and in shape of countless small pieces; meaning thereby that allegedly recovered charas has not been produced in the Court, which fact has also smashe d the base of prosecution. Hence, neither safe custody nor production of allegedly recovered charas in Court could be proved by the prosecution.
8. Nutshell of the above discussion is that prosecution has failed to prove the case against the appellant beyond shadow of doubt, so there is no need to discuss defence version.
9. Resultantly , instant appeal is allowed , conviction and sentence recorded against the appellants through the impugned judgment dated 13.03.2018 passed in case arising out of FIR No. 242/2017 dated 03.03.2017 registered under section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station Defence-A Lahore, are hereby set aside. The appellants are acquitted of the charge, the shall be released forthwith if not required in any other case.
Since, conviction and sentence awarded to appellant Jean Marie and Arzi Gull have been set aside, therefore, Criminal Revision No.235939/2018 for enhancement of sentence has become infructuous and the same is dismissed accordingly .