Anwaarul Haq Pannun, J.--Through this appeal under Section 48 of The Control of Narcotic Substances Act, 1997(CNSA, 1997), the appellant Mst. Muniran Bibi has challenged his conviction and sentence awarded to her, vide judgment dated 26.11.2018 in case/F IR No. 434/2018, dated 15.08.2018, offence under Section 9(c) of CNSA, 1997, registered at Police Station Model Town, Burewala, District Vehari, passed b learned Addl. Sessions Judge/Special Judge (CNS), Burewala, whereby the appellant has been convicted and sentenced as under: Section 9(c) of CNSA, 1997 "to undergo 04 years with fine of Rs. 20,000/- and in default, she shall further undergo 06 months S.I. The benefit of Section 382-B, Cr .P.C. was extended to the convict."
2. The prosecution's version as containe d in the FIR (Exh.P A). lodged on the complaint(Exh.P AD) of Mukhtar Ahmad T/ASI (PW-5) is that on 15.08.2018, the accused/appellant was apprehen ded in consequence of raid and upon her search, charas weighing 1480 grams was recovered. Out of recovered contraband, 74 grams charas was separated and sealed into sample parce l whereas, the remaining case property was also sealed into separate parcel vide recovery memo (Exh.PB/1).
3. After investigation and on receiving the report under Section 173, Cr.P.C., the learned trial Judge took the cognizance, supplied the copies of the statements as required under Section 265-C, Cr.P.C. to the appellant, framed charge, to which the appellant pleaded not guilty , proceeded to record the evidence of the prosecution witnesses. Muhammad Afzal 618/C (PW-1) chalked out formal FIR (Exh.P A). He also kept the sample parcel and case property for safe custody in the malkhana and then on 16.8.2018, delivered sample parcel to Muhammad Shabbir SI/NIU(PW -4), who deposited the same in the office of Punjab Forensic Science Agency , Lahore. He also conducted investigation of the case, inspected the spot, prepared site plan (Exh.PC), recorded the statements of witnesses under Section 161, Cr.P.C., and sent the accused to judicial lock up. Mst. Nasreen Akhtar 788//LC (PW- 2) and Ali Asghar 449/C (PW-3) are the recovery witnesses of the alleged occurrence. Mukhtar Ahmad T/ASI (PW- 5) is the complainant of the case, who narrated the story of FIR. Learned Prosecuto r while tendering positive report of Punjab Forensic Science Agency , Lahore (Exh.PE) closed the prosecution's evidence. The, appellant when examined under Section 342, Cr.P.C., she while refuting prosecution's evidence, pleaded her innocence. In reply to the questions that why this case and why the PWs deposed against her , the appellant replied as under: "On the alleged day of occurrence I alongwith my relatives namely Shumaila Bibi came at Court premises for meeting my husband. I entered in Bakhshi Khana to meet my husband after getting permission from the Bakhshi Khana Squad both me and my relatives Shumaila Bibi was checked in detail while entering the Bakhshi Khana. We remained there about 30 minutes alongwith our kids from where Iqbal ASI without assistance of any lady constable arrested both of us and took us to P.S Model Town, Burewala where he planted this case against us. I never involved in such like cases. My husband is behind the bars. Even I have already migrated from Burewala. I just come to visit my husband. This fact is clearly indicated that the writing of both the said FIRs No. 435/18 and 434/18, writing of complaint and site plan are same. Even I/O of both two cases admitted in his evidence that the writing of site plans in both cases are not mine whether it was prepared by any other person. I am innocent. I never involved in such like cases. My husband is already in prison. There is no perso n left behind who look after my minor kids. There are major contradiction s in the statements of the PWs. Moharrar of P.S Model Town, Burewala appeared in the Court alongwith comput erized Roznamcha. According to Daily Roznamcha total facts indicating that both the FIRs were bogus and planted one."
Neither the appellant recorded her statement under Section 340(2), Cr.P.C. nor produced any defence evidence.
On conclusion of trial, learned trial Judge convicted and sentenced the appellant through the impugned judgment as alluded to in Para No. 1 of the instant judgment. Hence, this appeal.
4. Arguments heard. Record perused.
5. After perusal of evidence and record, we find that the case of prosecution is not proved beyond any shadow of doubt against the appellant. Muhammad Afzal 618/C deposed that on the same day (15.08.2018), Muhammad Shabbir SI/NIU handed over to him one sealed parcel of sample charas and other sealed parcel of chars 1406/grams as case property for keeping the same at police malkhana in his safe custody and he kept the same in his custody intact . He further deposed that he deposited sealed parcel of charas as case property in judicial malkhana. He did not depose about keeping the sample parcel in the malkhana for safe custody . He further deposed that on 16.08.2018, he handed over the sealed parcel of sample charas to Muhammad Shabbir SI/NIU for its safe transmission to the office of Punja b Forensic Science Agency , Lahore vide Road No. 681/21. On the other hand, Muhammad Shabbir SI (PW-4) deposed that on 17.08.2018, he received sample parce l from Moharrar and personally submitted said sample in P .F.S.A Lahore.
6. In view of above discussion, the prosecution's case being depleted with material contradictions in it, thus the prosecution has failed to prove safe custody as well as safe transmission of sample parcels of the contraband/material allegedly recovered from possession of the appellant. It has been held in case titled "The State through Regional Director ANF vs. Imam Bakhsh and others" (2018 SCMR 2039 ) that: "The chain of custody begins with the recovery of the seized drug by the Police and includes the separation of the representative sample(s) of the seized drug and their dispatch to the Narcotics Testing Laboratory . This chain of custody , is pivotal, as the entire construct of the Act and the Rules rests on the Report of the Government Analyst, which in turn rests on the process of sampling and its safe and secure custody and transmission to the laboratory .
The prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample(s) and will impair and vitiate the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction. This Court has already held in Amjad Ali v. State (2012 SCMR 577) and Ikramullah v. State (2015 SCMR 1002 ) that where safe custody or safe transmission of the alleged drug is not established, the Report of the Government Analyst becomes doubtful and unreliable."
7. Moreover , no rappat regarding departur e of Mukhtar Ahmad ASI complainant (PW-5) for patrolling on 15.08.2017 as well as arrival or departure of lady constable Mst. Nasreen Akhtar (PW-3) is available on record. Muhammad Afzal 618/C(PW -1) during cross-examina tion admitted it correct that "the arrival or departure of lady constable Nasreen Akhtar is not mentioned in any rapt of said date There is no rapt availabl e on record regarding departure of Mukhtar Ahmad ASI for patrolling. There is Also no rapt available on record regarding arrival of Shabir Ahmad SI with lady accused .... Similarly no rapt is available on record regarding handing over of case property to Moharar .
No rapt regarding the departure of raiding party in the instant case is not available on record. " Contrary to that, Mukhtar Ahmad T/ASI, complainant (PW-5) deposed that "I made rappat in roznamcha regarding my departure from and arrival at P.S. The above discus sed facts, caters doubt on the prosecution's case. Reliance in this regard is placed upon case titled "Hakim Ali vs. State " (2001 PCr.LJ 1875) and "Arif Khan vs. State" (1998 PCr.LJ 2187).
8. Furthermore, Mukhtar Ahmad T/ASI, complainant (PW-5) deposed that he sent the complainant for registration of the case through Mushtaq Ahmad PQR to police Station. Muhammad Afzal 618/C (PW-1) deposed that on the same day (15.08.2018), he received a draft of complaint through Mushtaq Ahmad PQR. sent by Mukhtar Ahmad TASI for registration of F.I.R, on the basis thereon, he dictated to data entry operator intact who composed the same as Exh.P A. The said Ghulam Mustafa PQR was neither examined as a witness during the trial of the case nor he was cited as a witness by the prosecution nor his statement was recorded by the I.O under Section 161 of, Cr.P.C. Non-production of aforesaid witness and the inexplicable conduct of the complainant (PW-5) not proceeding to the police station himself to register the FIR are matters of concern and collectively of doubt. It has been held in case titled " Minhaj Khan vs. The State" (2019 SCMR 326 ) that: "The discrepancies in the testimonies of the two witnesses; the purported lack of knowledge about certain things which they ought to have remembered while having a photographic recollection of other insignificant, things; not knowing those things which they should have; the fact that Constable Jehanzeb Khan reached the police station before the complainant PW-2; the non-production of Constable Jehanzeb Khan who took the written complainant and was an eye-witness of the occurrence and of the recovery memorandums; and the inexplicable conduct of the complainant PW-2 in not proceeding to the police station himself to register the FIR are matters of concern and collectively of incredulity . The conclusion therefrom that we draw is that the prosecution had failed to establish its case against the petitioner beyond reasonable doubt, or, at worst, that the petitioner was involved in a false case for ulterior reasons."
9. In view of above discussed facts, when the realities of the prosecution are not transparent/clear , the conviction and sentence of the appellant cannot be sustained and we are of the view that the prosecution has failed in establishing its case against the appellan t beyond any shadow of doubt. Though there is a slight difference in the manner and standard of proof in the cases registered under the Control of Narcotic Substances Act, 1997 but the prosecution is always burdened to discha rge the initial onus of proof. Though under Section 29 of the Control of Narcotic Substances Act, 1997, some departure has been introduced to this gene ral principle, yet the prosecution cannot be absolved from its duty to discharge the onus of proof. The initial onus of proof is always on the prosecution and when once it is discharged, then the accused would be burdened to prove the contrary in terms of principles laid down in Section 29 of the Control of Narcotic Substances Act, 1997. The case of the prosecution is not free of doubt and for earning the acquittal, the accused is not obliged to establish number of circumstances creating doubts but even a single circumstance, creating a reasonable doubt in the prudent mind is sufficient to extend the benefit of doubt to the accused. Reliance in this regard is placed upon case titled "Muhammad Ashraf and others v. The State and others" (PLD 2015 Lahore 1) and "Muhammad Zaman v. The State and others"
(2014 SCMR 749 ).
10. For what has been discussed above, we are of the considered view that the prosecution has failed to discharge its onus for upholding the conviction recorded by the learned Addl. Sessions Judge/Special Judge (CNS), Burewala, against the appellant. Consequently , while allowing this appeal, we set aside the judgment dated 26.11.2018 and acquit the appellant from the charge. The appellant is in jail, she be released forthwith if not required in any other case.