Miss Aalia Neelum, J.--The appellant-Farooq Ahmad son of Baqar Khan, caste Arain, resident of Mong, District Mandi Bahauddin, was involved in case F.I.R No. 375 of 2009, dated 4.9.2009, offence under Section 9(B) of the Control of Narcotic Substances Act, 1997 registered at Police Station Saddar , District M.B. Din and was tried by the learned Sessions Judge, District M.B. Din. The learned trial Court seized with the matter in terms of judgment dated 11.1.201 1, convicted the appellant under Section 9(B) of the Control of Narcotic Substances Act, 1997 and sentenced him to undergo rigorous imprisonment 1-year with the direction to pay Rs. 4000/- as fine and in case of default in payment thereof, to further undergo simple imprisonment for 1- morith. The benefit of Section 382-B, Cr.P.C. 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.PB/1) lodged on the complaint (Ex.PB) of Faiz Ahmed A.S.I (PW-3) the complainant is that on 4.9.2009, he (PW-3) along with Muhammad Ijaz 165/C, Muzammal Hussain 1036/C (given up PW), Qamar Abbas 1326/C and Mukhtar Ahmad 1200/C (PW-4) was present at Adda Mong on patrolling, where a person came from the side of Adda Mong, who on seeing the police party tried to turn back. On suspicion, he was apprehended. On interrogation, said person disclosed his name as Farooq Ahmad (the appellant). On his personal search, "Charas" (P-1) weighing 260-grams wrapped in a polythene bag was recovered from his right arm-pit pocket. The complainant (PW-3) took into possession the recovered narcotic substance (P-1) through recovery memo. (Ex.P A). Out of the recovered narcotic substance, 10-gram charas was separated for chemical analysis. Thereafter , the complainant (PW-3) drafted complaint (Ex.PB) and sent the same through Muhammad Ijaz 165/C to the Police Station for registration of the formal FIR (Ex.PB/1).
3. Thereafter , the investigation was entrusted to Muhammad Azam 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.C. 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 19.12.2009, to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as six witnesses. Shahbaz Ahmed A.S.I. (PW-1) is Moharrar . Muhammad Ahsan 324/C (PW-2) transmitted the parcel of sample to the office of Chemical Examiner , Lahore. Faiz Ahmed A.S.I. (PW-3) is the complainant of the case, whereas Mukhtar Ahmed 1200/C (PW-4) is the witness of recovery and Muhammad Azam S.I (PW-5) is the investigating officer of the case.
Munawar Hussain S.I. (PW -6) chalked out formal FIR (ELPB/1).
5. On 27.04.2010, the learned DDPP gave up PW-Muzammal Hussain 1036/C as being un-necessary and after tendering the report of Chemical Examiner , Lahore (Ex.PD) closed the prosecution evidence on 5.5.2010.
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 defence evidence and while replying to a particular question that why the PWs had deposed against him, the appellant made the following deposition: "Bilal police employee is my neighbourer . I have strained relations with said Bilal. On the fateful day, I was sitting on the "Fateha Khawani" of my "Chachi" Mst. Fatima Bibi in village Mong. Muzammal and Mukhtar constables apprehended me from there on the asking of said Bilal and planted recovery of Charas while sitting in P .S. I am totally innocent."
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. We have heard the arguments advanced by the learned counsel for the appellan t as well as the learned Deputy Prosecutor General and have minutely perused the record available on the file.
9. 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 the deposit of the parce l of sample in the office of the chemical examiner for the Punjab, Lahore and by whom. In this regard, most impo rtant testimony was of Shahbaz Ahmed, ASI (PW-1)-Moharrar . Shahbaz Ahmed, ASI (PW -1) Moharrar deposed during his Court statement that: "On 08-09-09 I handed over one sealed parcel to Muhammad Ahsan 324/C for onward transmission to the office of Chemical Examiner , Lahore intact."
Muhammad Ahsan 324/Constable (PW -2) deposed during examination-in-chief that: "On 08-09-09 I was posted at P.S Sadar M.B.Din. On the same dav, Shahbaz Ahmed ASI/Muharrer handed over to me one sealed parcel said to contain Charas for onwards transmission to the office of Chemical Examiner , Lahore, which I delivered in the said office on the same day intact."
The parcel of sample was dispatched to the office of chemical examiner , Lahore on 08-09-2009, whereas, on perusal of chemical examiner report (Ex.PD) it reveals that the parcel of sample was deposited in the office of the chemical examiner for the Punjab, Laho re on 7-9-2009 by Muhammad Anar 349/Constable. There is also no explanation for this failure to establish link with the parcel of sample received in the office of the Chemical Examiner for the Punjab, Lahore and sample of parcel handed over by Shahbaz Ahmed, ASI (PW-1) Muharrar to Muhammad Ahsan 324/Constable (PW-2) on 08-09-2009. The parcel of sample deposited in the office of the Chemical Examiner for the Punjab, Laho re on 7-9-2009 by Muhammad Anar 349/Constable could not be related with the sample taken from the seized substance from possession of the appellant. There is, thus, no evidence to connect the Chemical Examiner Report (Ex.PD) with the substance that was seized from the possession of the appellant. All above aspects do create strong doubt as regards truthfulness of prosecution version of recovery , seizer , dispatch of parcel of sample. 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.
10. There is another aspect of the case of the glaring contradiction in the statemen ts of the prosecution witnesses, which makes the case of the prosecution highly doubtful. Shahbaz Ahmed, ASI (PW-1)-Moharrar deposed during examination-in-chief that: "On 04-09-09 I was posted as Muharrer of P.S Sadar Mandi Bahauddin. On the same day, Muhammad Azam SI handed over to me two sealed parcels said to contain Charas, which I kept in the Malkhana of P.S for safe custody ."
There are contradictions in the case of the prosecution as to handing over parcels of sample and remaining case property to the moharrar malkhana. It is the prosecution case that on 4-9-2009, Faiz Ahmed, A.S.I (PW-3) the complainant, caught hold of the appellant and got recovered 260 grams charas upon personal search of the appellant. Thereafter , Faiz Ahmed, A.S.I (PW-3)-the complainant separated 10 grams charas as sample and prepared two sealed parcels. Faiz Ahmed, A.S.I (PW3)-the complainant deposed during examination-in-chief that: "The case property and specimen were handed over to the Muharrer of the P .S."
Whereas, Shahbaz Ahmed, ASI (PW -1)-Moharrar deposed during examination-in-chief that: "On 04-09-09 I was posted as Muharrer of P.S.' Sadar Mandi Bahauddin. On the same day, Muhammad Azam SI handed over to me two sealed parcels said to contain Charas, which I kept in the Malkhana of P.S. for safe custody ."
During cross-examination Muhammad Azam, S.I. (PW-5)-the Investigating Officer deposed that he handed over recovered charas to the moharrar , but he cannot give exact time of handing over the same. This witness had not stated a single word that when and where recovered charas was handed over to him by Faiz Ahmed, A.S.I (PW-3)- the complainant. Similarly , Faiz Ahmed, A.S.I (PW-3)-the complainant had not deposed, that he handed over parcels of seized contraband charas to Muhammad Azam, S.I. (PW-5)-the Investigating. In the trial, it was necessary for the prosecution to establish by cogent evidence that the alleged parcels of samples and remaining case property i.e. charas weighing 260 grams seized from the possession of the accused were kept in safe custody . There is no explanation for this failure to establish safe custody of recovered charas weighing 260 grams as well as parcel of sample. From time of the seizure on 04-09-2009, till deposit of the parcel of samples in the office of chemical examiner , Lahore on 07-09-2009, it is not established that the sample and the recovered substance were kept in the "Malkhana". The prosecution failed to establish by cogent evidence that the alleged parcel of sample as well as charas (P-1) seized from tne possession of the accu sed were kept in safe custody .
Mere oral evidence of the prosecution witnesses i.e Faiz Ahmed, A.S.I (PW-3)-the complainant and Mukhtar Ahmed, Constable/1200 (PW-4) as to the recovery of charas weighing 260 grams (P-1) does not discharge the heavy burden of responsibility , which lies on the prosecution. Practically the prosec ution took upon themselves the risk of losing the case. In the considered opinion of this Court, the aforesaid inconsistencies and contradictions considered cumulatively do lead to an irresistible inference that the prosecution has not been able to prove safe custody of the recovered substance through material and cogent evidence.
11. Accordingly , benefit of doubt is extended to the appellant, thus the Criminal Appeal No. 31 of 2011 is allowed and the appellant Farooq Ahmad is acquitted of the charge. The conviction and sentence passed by the learned trial Court vide the impugned judgment dated 11.01.201 1 in case F.I.R. No. 375/2009 dated 4.9.2009, offence under Section 9(b) of the Control of Narcotic Substances Act, 1997 registered at Police Station Saddar , District M.B. Din is hereby set aside. The appellant is on bail. His surety bonds stand discharged.