TARIQ SALEEM SHEIKH, J.---Through this appeal the Appellant, Khyber Ali, has assailed judgment dated 20.6.2019 passed by the learned Additional Sessions Judge, Multan, in case FIR No.104/2016 dated 21.7.2016 registered at Police Station Kup, District Multan, for an offence under Section 9(c) of the Control of Narcotic Substances Act. 1997 (the "Act").
2. Brief facts of the case are that on 21.7.2016 Complainant Abdul Razzaq/SI (PW-4) was patrolling at Chowk Bazaar with other police officials when he received a secret information that Appellant Khyber Ali, allegedly a notorious drug trafficker, was waiting for a transport near Choori Sarai Bazaar carrying a huge quantity of narcotics and that he could be apprehended if a prompt action was taken. On this tip-off the Complainant hastened to the specified place with a police contingent, nabbed the Appellant and recovered five packets of charas weighing 5.120 kilograms charas and Wattak money of Rs.2920/- from him. He drew 10 grams from the corners of every packet and prepared 20 sealed parcels thereof for chemical analysis and secured the residue in a separate sealed parcel and seized all the parcels along with Wattak money of Rs.2920/- vide Recovery Memo Exh.PA. After that Abdul Razzaq/SI drafted complaint Exh.PB and sent it to the police station through Muhammad Sarfraz 172/C on the basis of which Muhammad Anwar 736/HC (PW-6) registered FIR No.104/2016 Exh.PE.
3. The investigation of the case was entrusted to Muhammad Hamad Khan/SI (PW-3) who went to the place of recovery, interrogated the Appellant, prepared rough site plan Exh.PC and recorded the statements of the witnesses under Section 161, Cr.P.C. On his way back to the police station he handed over the, case property to Muhammad Anwar 736/HC (PW-6) for safe custody. During his investigation Muhammad Hammad Khan/SI found that the Appellant had committed the offence. Report under Section 173, Cr.P.C. was submitted accordingly.
4. On 4.2.2017 the learned Additional Sessions Judge indicted the Appellant who pleaded not guilty and claimed trial. The prosecution produced six witnesses to establish its case. Muhammad Akram 79/C (PW-1), Muhammad Iqbal/ASI (PW-2) and Abdul Razzaq/SI (PW-4) testified about the recovery of contraband charas and Wattak money from the Appellant. Muhammad Iqbal/ASI (PW-2) also deposed that he delivered the sample parcels at the office of Punjab Forensic Science Agency (PFSA). Haider Abbas 1421/HC (PW-5) and Muhammad Anwar 736/HC (PW-6) served as Moharrars of the police station who testified about safe custody of the case property.
The Investigating Officer, Muhammad Hammad Khan/SI (PW-3), gave details of the investigation that he carried out in this case. In documentary evidence, the prosecution inter alia adduced report of the PFSA Exh.PE/1.
5. In his statement under Section 342, Cr.P.C. the Appellant denied the allegations levelled against him and maintained that he and his brother-in-law Shahid were apprehended by JTT from Jan Muhammad Colony and he was handed over to CIA Staff, Multan, from where he was sent to Police Station Kup, Multan, and was then falsely involved in this case due to his previous record. According to him, the alleged contraband was not recovered from him and the police had foisted it to show their efficiency. He neither opted to make a statement on oath under Section 340(2), Cr.P.C. nor examined any witness in his defence. However, he produced attested copies of Road Certificate of Malkhana (Exh.DA and Exh.DB), Roznamcha dated 20.7.2016 and 21.7.2016 (Exh.DC. Exh.DC/1 and Exh.DC/2).
6. On the conclusion of the trial, vide impugned judgment dated 20.6.2019, the learned Additional Sessions Judge convicted the Appellant under Section 9(c) of the Act and sentenced him to rigorous imprisonment for eight years and six months with fine of Rs.40,000/- and in default thereof to undergo simple imprisonment for a further period of seven months. However, benefit of Section 382-B, Cr.P.C. was extended to him.
7. The learned counsel for the Appellant contended that the prosecution had miserably failed to prove the charge against the Appellant. Contraband charas was not recovered from him and the police had foisted it.
There were glaring contradictions in the statements of the witnesses which made them untrustworthy.
Furthermore, safe custody of the case property and safe transmission of the sample parcels to the PFSA was not established which vitiated report Exh.PE/1. The learned counsel prayed that this appeal be accepted and the Appellant may be acquitted.
8. On the other 'hand, the learned Deputy Prosecutor General controverted the above contentions and supported the impugned judgment. He contended that a huge quantity of 5.120 kilograms charas was recovered from the Appellant which was proved by Muhammad Akram 79/C (PW-1), Muhammad Iqbal/ASI (P W-2) and Abdul Razzaq/SI (PW-4) whose evidence was reliable and inspired confidence. The report of the PFSA Exh.PE/1 was positive and corroborated the evidence of recovery. The learned Law Officer maintained that the police officials had no motive to falsely implicate the Appellant in this case. The prosecution had proved its case to the hilt so this appeal may be dismissed.
9. Arguments heard. Record perused.
10. According to the prosecution, on 21.7.2016 the Appellant was apprehended from the street of Choori Sarai Bazaar and five packets of charas weighing 5.120 kilograms and Wattak money in the sum of Rs.2920/- were recovered from him. Out of the recovered charas the Complainant drew 10 grams from the corners of every packet and prepared 20 sealed samples for chemical analysis and preserved the remaining bulk through a separate parcel. The prosecution produced Muhammad Akram 79/C (PW-1), Muhammad Iqbal/ASI (PW-2) and Abdul Razzaq/SI (PW-4) to prove the said recovery. We have, however, noted that the prosecution has failed to establish safe custody of the case property as well as safe transmission of the sample parcels to the PISA which was essential to record conviction against the Appellant.
11. Abdul Razzaq/SI (PW-4) deposed that the investigation of the case was entrusted to Muhammad Hammad Khan/SI (PW-3) and when he came to the site he handed over the case property, including sample parcels and wattak money, and custody of the Appellant to him. PW Muhammad Hammad Khan/SI acknowledged this fact but he did not say what he did with them. The Moharrar of the police station, Muhammad Anwar 736/HC (PW-6), deposed that he received the case property from Hammad Khan/SI but did not tell when. This had great significance because the latter admitted in his cross- examination that the case property was not deposited in the Malkhana. Relevant Excerpt from his deposition is as under: "It is in my knowledge that case property was deposited in the Malkhana with some delay. The case property was deposited in the Malkhana in the month of November, 2017."
12. From the perusal of the prosecution evidence it appears that at some point of time the case property was transferred to the Saddar Malkhana but it is totally silent who took it there. Reference may be made to the following portion of the cross-examination of Abdul Razzaq/SI (PW-4): "I do not remember the date of issuance of road certificate for depositing the case property in Saddar Malkhana in my name. The road certificate was issued in my name but I do not remember who deposited the case property, Hammad or other I.O. in the Saddar Malkhana. The road certificate was issued in my name but the same was not handed over to me. As per the law the person in whose name the road certificate is issued is duty bound to deposit the case property in the Malkhana properly. I might be busy in some other official assignments.
I do not know whether Hammad was dismissed after the instant occurrence. I do not know when the case property was deposited in the Malkhana. It is not in my knowledge that case property was deposited in the Malkhana after 1-1/4 years of the occurrence."
13. Interestingly, report of the PFSA Exh.PE/1 shows that a sample containing approximately 5070 grams of suspected charas was submitted to the laboratory on 1.9.2016 by Muhammad Iqbal/ASI (PW-2). There is no evidence as to where this parcel came from and how it reached his hands. It is also important to note that according to the prosecution a total of 5120 grams charas was recovered from the Appellant. If the weight of the samples drawn is deducted, the weight of the residue does not match with the aforesaid parcel that was given to the PFSA.
14. So far as the, chain of custody of the representative samples is concerned, it broke right in the beginning when Mohammad Hammad Khan/SI (PW-3) and Muhammad Anwar 736/HC (PW-6) could not establish their immediate safe deposit in the Malkhana. In the circumstances, positive report of PFSA Exh.PE/1 is of no legal consequence. It is not reliable and does not advance the prosecution case. Reliance is placed on The State through Regional Director ANF v. Inam Bakhsh and others (2018 SCMR 2039) and Khair-ul-Bashar v. The State (2019 SCMR 930).
15. In the result, we accept this appeal and set aside the impugned judgment 20.6.2019. The Appellant is acquitted of the charge. He shall be released from jail forthwith if not required in some other criminal case.