ABDULLAH BALOCH, J.---This judgment disposes of Criminal Appeal No.170 of 2019 filed by the appellant Habib-ur-Rehman son. of Shah Muhammad, against the judgment dated 18th May 2019 (hereinafter referred as, "the impugned judgment ") passed by learned MCTC/Special Judge CNS/Sessions Judge Killa Abdullah at Chaman, (hereinafter referred as, "the trial Court "), whereby the appellant was convicted under section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to suffer imprisonment for life, with fine of Rs.500,000/- or in default thereof to further suf fer five (05) years' S.I., with the benefit of section 382-B, Cr .P.C.
2. Facts of the case are that on 2nd October 2018 at about 05.00 p.m., the complainant Muhammad Ramzan Dafadar Levies lodged FIR No.77 of 2018 at Levies Thana Chaman under section 9(c) of the CNS Act, 1997, stating therein that on the day of occurre nce he along with Ahmed Khan Naib Tehsildar Chaman and other levies officials were on patrolling duty, when pursuant to spy information with regard to transportation of huge quantity of narcotics, a Land Cruiser vehicle was found Coming from Murda Karez river road, which was signaled to stop, but it did not stop, hence the same was chased and the vehicle entered in a village Landi Karez, where the driver of the said vehicle managed to escape, while a person present in the said vehicle was taken into custody , who on query disclosed his name as Habib-ur-Rehman and the search of the vehicle was resulted into recovery of 10-sacks of Raw Charas, on weighing it became 250-Kgs.
3. On receipt of challan, the trial Court indicated the charge to the appellant and after denial, the prosecution produced three (03) witnesses. The appellant was examined under section 342, Cr.P.C. The appellant neither recorded his statement on oath under section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of trial, the appellant was convicted and sentenced as mentioned abov e whereafter the instant appeal has been filed.
4. Heard the learned counsel for parties and perused the available record, which reveals that in order to substantiate the charge the prosecution has produced the evidence of three witne sses. The comparative study of statements of all witnesses proves that the same are contradictory to each other on material counts. The complainant of the case namely Muham mad Ramzan Dafadar appeared as PW-1, who mostly reiterated the contents of his fard-e-bayan Ex.P/1-A. However , in his cross-examination he stated that after taking into possession the vehicle, the same was taken to Kacheri and he also submitted fard-e-bayan for registration of FIR in Levies Kacheri PW-1 further brought on record that the Murasala was written by Moharar in Levies Thana.
However , this witness has denied the suggestion that all the recovery proceedings were carried out in Thana. It has been observed that the evidence of this witness is ambiguous on certain counts. On the one hand this witness has brought on record that the Murasala was written by Moharrar of Thana in Levies Station, hence presumption can easily be drawn that soon after recovery of the contraband from the vehicle the same was taken to Levies Thana and after lodging the FIR the recovery proceedings were carried out in Levies Station, while on the other hand PW- 1 has denied the suggestion that the recovery proceedings were not carried out at Levies Thana. The evidence of PW-1 has been contradicted by recovery witness PW-2, who brought on record that the parcels were sealed in Levies Thana. Meaning thereby that the recovery proceedings were not carried out at the spot rather all the proceedings were carried out in Levies Stations. Anyhow , non-sealing of samples soon after its recovery at the spot has created a serious doubt in the case of prosecution and no implicit reliance could be placed on Chemical Examiner's report, hence the case of the prosecution is highly doubtful. Reliance , in this regard is placed on the case of Khan Bacha v . The State PLD 2006 Karachi 698 . The relevant portion is reproduced below: "In the light of what has been discussed above it has not been proved beyond any shadow of doubt that if the property was sealed at the place of the incident, therefore, there is no guarantee that the property was not tampered with. The subsequent sealing of the property elsewhere would not rectify the defect already made during course of investigation at the initial stage, hence the chemical analyzer's report has lost its evidentiary value. If the property was subsequently sealed then the prosecution was required to explain the circumstances for doing so and to further specifically show that the property was not tampered with or replaced. There is no such explanation furnished by the prosecution in this case, therefore, non-sealing of the sample immediately after Fits recovery creates serious doubt in the prosecution case, hence no implicit reliance can be placed on chemical analyzer's report."
5. Minute scrutiny of statements of all the witnesses has further established the fact that all the witnesses have brought on record that the driver of the vehicle managed his escape good from the place of occurrence, while the appellant was found sitting in the cleaner seat. The prosecution has also failed to establish the conscious knowledge and awareness of the appellant with regard to transportation of contraband through the said vehicle and also the prosecution has not established the ownership of the appellant in respect of vehicle. The Incharge of vehicle is always considered to be the Driver of the vehicle and he is held responsible for recovery of any sort of article from the said vehicle. It has been remained the consistent view of the Hon'ble Superior Courts that when a person is driving the vehicle he is in the charge of the same and, it would be under his control and possession, hence, whatever articles lying in it would be under his control and possession and more knowledge and awareness would be attributed to the Incharge of the vehicle. Reliance in this regard is placed on the case of Kashif Amir v.
The State, PLD 2010 Supreme Court 1052 , wherein it was held as under: "It is well settled principle that a person who is on driving seat of the vehicle, shall be held responsible for transportation of the narcotics, having knowledge of the same as no condition or qualification has been made in section 9(b) of CNSA that the possession should be an exclu sive one and can be joint one with two or more persons. Further , when a person is driving the vehicle, he is Incharge of the same and it would be under his control and possession, hence, whatever articles lying in it would be under his control and possession. Reference in this behalf may be made to the case of Muhammad Noor v. The State (2010 SCMR 927). Similarly , in the case of Nadir Khan v. State (1988 SCMR 1899 ) this court has observed that knowledge and awareness would be attributed to the Incharge of the vehicle ." [BOLD ADDED]
6. We have analyzed the statements of all the witnesses with care and caution and observed that none of the witnesses have stated that the appellant was driving the vehicle rather it has come on record that the driver of the vehicle escaped from the place of recovery knowingly that he had concealed contraband in the said vehicle and there was apprehension of his arrest, but since the appellant was not within the knowledge of contraband in the vehicle, thus he made no attempt to escape. The prosecution has also failed to establish the ownership of the appellant in respect of vehicle in question. Mere presence of the appellant in the vehicle can neither establish his ownership in respect of vehicle nor he can be held responsible for recovery of contraband from the same. Hence, the prosecution has failed to establish the nexus of the appellant with the said vehicle. Since no nexus of the appellant with the alleged vehicle has been established to the prosecution, thus the appellant cannot be held responsible for recovery of any contraband from the said vehicle.
7. Apart from the above, the FSL report Ex.P/3-D is defective. It appears that the samples were drawn on the day of occurrence i.e. 2nd October 2018, but the same were received to FSL on 26th November 2018 i.e. after delay of 45-days. Legally , the samples ought to have been sent for analysis to the Chemical Examiner within 72 hours of the seizure as required by Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, thus the receipt of samples after delay of 45-days have vanished the evidentiary value of the FSL report, when otherwise the Investigating Officer has failed to tender any D plausible explanation for delay in sending the samples for analysis and in such like situation question arises as to whether during the intervening period the samples were in the safe custody or that the same were altered, changed or manipulated. The delay in dispatching the samples to FSL has lost the evidentiary value of analysis report Ex.P13-D and no implicit reliance could be placed upon it.
8. In view of above, the prosecution has miserably failed to establish that the appe llant was the owner or in charge of the vehicle and is responsible for the recovery of contraband from it. Besides, the recovery proceedings evidently were carried out in a doubtful manner , while the FSL report is defective. Thus, all these legal and factual aspects of the case have led us to the conclusion that the prosecution has failed to establish the charge against the appellant through confidence inspiring evidence, but the learned trial Court has failed to consider the same in its true sense. The impugned judgment of trial Court reveals that it is suffering from misreading and mis-appreciation of evidence, warranting interference of this Court.
For the above reasons, the appeal is accepted. The impugned judgment dated judgment dated 18th May 2019 passed by learned MCTC Special Judge CNS/Sessions Judge Killa Abdullah at Chaman is set aside and the appellant Habib-ur-Rehman son of Shah Muhammad, is acquitted of the charge under section 9(c) of the CNS Act, 1997. The appellant being in custody is ordered to be released forthwith, if not required in any other case.
Above are the reasons of our short order dated 16th July , 2019.