TARIQ SALEEM SHEIKH, J.---Through this appeal the Appellant, Mukhtiar Hussain, has assailed judgment dated 23.1.2019 passed by the learned Judge, Special Court (CNS) Multan, in case FIR No.61/2017 dated 1.2.2017 registered at Police Station Alpa, District Multan, whereby he was convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997 (the "CNSA"), and sentenced to rigorous imprisonment for eight years with fine of Rs.12,000/- and in default thereof to undergo simple imprisonment for a further period of six months and 15 days. Benefit of section 382-B, Cr.P.C. was, however, extended to him.
2. Brief facts of the case are that on 1.2.2017 Complainant Muhammad Akram/SI (PW-2) along with Sohail Anwar 1624/C (PW-5) and other police officials was patrolling at Lutafabad when he received a secret information that a notorious drug paddler was spotted in front of gate of Buch Villas, Bosan Road. On this tip-off, the Complainant and his team conducted a raid, apprehended the Appellant and recovered a Gattu (sack) containing five packets of opium weighing 1220 grams each (total: 6.100 kilograms) from him which he was carrying in his right hand. He sealed the recovered opium P-1 into a parcel and seized it vide Recovery Memo Exh.PA, drafted complaint Exh.PB and sent it to the police station through PW Shah Nawaz 2778/C on the basis of which Abdul Rehman/ASI (PW-1) registered FIR No.61/2017 Exh.PA. The investigation of the case was entrusted to Nazar Abbas/SI (PW-3) who found that the Appellant had committed the offence. Report under Section 173 Cr.P.C. was submitted accordingly. On 02.11.2017 the learned trial Court indicted the Appellant who denied the charge and claimed trial.
3. The prosecution examined six witnesses to prove the charge. Muhammad Akram/SI (PW-2) was the Complainant of the case. He and Sohail Anwar 1624/C (PW-4) testified about the recovery of opium from the Appellant. Abdul Rehman/ASI (PW-1) and Muhammad Arif 1536/HC (PW-5) were the Moharrars of the police station who appeared to prove safe custody of the case property in the Malkhana. Muhammad Hayat/SI (PW-6) transmitted the parcel at the office of the Punjab Forensic Science Agency, Lahore (PFSA), for chemical analysis. Abdul Rehman/ASI (PW-1) also registered FIR Exh.PA. The Investigating Officer, Nazar Abbas/SI (PW-3), gave details of his investigation. In documentary evidence the prosecution Inter alia produced Narcotics Analysis Report Exh.PD.
4. On the completion of the prosecution evidence the learned trial Court examined the Appellant under Section 342, Cr.P.C. He denied the allegations levelled against him and professed innocence. While replying the question as to why this case was registered and why the PWs deposed against him, he stated: "The story of the prosecution is fake, fictitious and concocted one. I have no shady past to involve in such like heinous offences, as I have no previous record. (sic). It is fact that I contracted a second marriage with Hajran Bibi with her free will and consent. Parveen Bibi (Saali) and her husband became inimical towards me and second wife due to that marriage. I purchased a land measuring four marlas and eight yards in Basti Hajipur Multan through registered sale deed No.12894/1 dated 12.11.2016. Parveen Bibi demanded the hands of my daughter and on my refusal she became inimical towards me. She contacted with Muhammad Akram SI/SHO who picked all the male members present in my house and lodged the instant case against me, FIR No.63/17 under Section 9(c) of the CNSA against my son namely, Muhammad Waheed, and FIR No.64/17 under section 9(c) of the CNSA against my son-in-law namely, Mukhtiar alias Munna, on the same day i.e. 1,2.2017 registered at Police Station Alpa, Multan. Later on with the help of police Parveen Bibi also got illegal possession of the land owned by me. Now Parveen Bibi is the illegal occupant over the said property. I have filed a declaratory civil suit with the prayer for getting possession back before the Civil Courts Multan which is pending for adjudication. All the PWs are police officials and also subordinate to Muhammad Akram SI/SHO. They deposed against me on the asking of their high-ups."
The Appellant neither got his statement recorded on oath under Section 340(2), Cr.P.C. nor examined any witness in his defence. However, he produced certified copies of the suit titled "Mukhtiar Hussain v. Muhammad Shareef etc." (Exh. DA), petition under Section 22-A Cr.P.C. titled "Hajran Bibi v. SHO etc." (Exh.DB), order dated 7.11.2017 of the Justice of Peace, Multan (Exh.DB/1), photocopies of Nikahnama between Mukhtiar Hussain and Hajran Bibi (Mark-A), sale deed No.12894/1 (Mark-B), FIR No.64/2017 (Mark-C) and FIR No.63/2017 (Mark-D).
5. On the conclusion of trial, vide impugned judgment dated 23.1.2019, the learned trial Court convicted and sentenced the Appellant as mentioned hereinabove.
6. The learned counsel appearing on behalf of the Appellant contended that the prosecution had miserably failed to prove the charge against the Appellant. The alleged contraband was not recovered from him, The prosecution evidence lacked credibility as it was riddled with material contradictions. Even otherwise, all the witnesses were police personnel who could not be relied upon without independent corroboration which was not available. He further contended that the safe custody and transmission of the case property was not proved by the prosecution which uprooted the prosecution case. Lastly, the report of the PFSA Exh.PD in respect of the sample did not meet the requirements of Rule 6 of the Control of Narcotic Substances (Government Analysts)
Rules, 2001, which was mandatory. The learned counsel prayed that the Appellant's appeal be accepted and he may be acquitted.
7. On the other hand the learned Deputy Prosecutor General opposed this appeal. He contended that the recovery, witnesses had no or animosity against the Appellant. They could not plant such a huge quantity of contraband on the Appellant. He maintained that the report of the PFSA in respect of the recovered material was positive which reinforced the prosecution case. He prayed for dismissal of this appeal.
8. Arguments heard. Record perused.
9. According to the prosecution, on 1.2.2017 the Appellant was apprehended from near the main gate of Buch Villas, Bosan Road, falling within the limits of Police Station Alpa, Multan, and 6.100 kilograms opium was recovered from him. The entire recovered narcotic substance was made into a sealed parcel and sent to PFSA for chemical analysis. The prosecution produced Muhammad Akram/SI (PW-2) and Sohail Anwar 1624/C (PW- 4) to prove the said recovery. They deposed in line with the prosecution case as set out in the complaint Exh.PB and the FIR Exh.PA. We have minutely examined their statements as well as those of Abdul Rehman/ASI (PW- 1), Nazar Abbas/SI (PW-3) and Muhammad Arif 1536/HC (PW-5) and found materiel contradictions in their depositions. According to Complainant Muhammad Akram/SI (PW-2), when Nazar Abbas/SI (PW-3) came to the place of recovery he handed over the case property to him. In contrast, Nazar Abbas/SI deposed in his examination-in-chief that: "Muhammad Akram SI handed over the case property to me, which I checked and weighed and returned to Muhammad Akram Inspector. After that we went to the police station where Muhammad Akram handed over the case property to the Moharrar and accused was confined in lockup of police station."
10. Nazar Abbas/SI did not disclose the name of the Moharrar in his deposition. However, perusal of record reveals that on 1.2.2017 Abdul Rehman/ ASI (PW-1) was Moharrar of the police station who drew FIR Exh.P.A. on receipt of the complaint Exh.PB.
According to him, on the same day Inspector Nazar Abbas/SHO handed over to him sealed parcel of case property -6.1.00 kilograms opium - which he kept in the Malkhana in safe custody and on 11.2.2017 on his transfer from the police station he handed over the same to Moharrar Muhammad Arif 1536/HC. However, Muhammad Arif/HC (PW-5) deposed that it was on 12.2.2017 that Abdul Rehman/ASI ex-Moharrar handed over to him the sealed parcel containing 6.100 kilograms: opium which he delivered to Muhammad Hayat/SI (PW-6) the same day for onward transmission to the PFSA. These contradictions not only have a bearing on the credibility of the witnesses bur also shows that the prosecution could not maintain safe custody of the case property from the place of recovery to the laboratory.
11. In The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), the question before the Hon'ble Supreme Court was whether it was incumbent on the prosecution to prove safe custody of the case property and safe transmission of the sample(s) from the place of recovery to the Narcotic Testing Laboratory. It was held that the same was necessary and any break in the chain of custody would uproot the prosecution case. Relevant excerpt is reproduced hereunder: "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 Narcotic 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."
The above view was reaffirmed in Khair-ul-Bashar v. The State (2019 SCMR 930).
12. In view of the fact that the prosecution has not been able to prove the safe custody of opium P-1, positive report of the PFSA Exh.PD is of no legal consequence.
13. This is not all. PW Shah Nawaz 2778/C was a material witness as he not only took the complaint Exh. PB to the police station for registration of the FIR but was also an eye-witness being a member of the raiding party. He could have provided vital corroboration - to prosecution case but was not produced at the trial. In Minhal Khan v. The State (2019 SCMR 326), the Hon'ble Supreme Court of Pakistan drew an adverse inference against the prosecution as it withheld such a witness.
14. For what has been discussed above we hold that the Appellant's conviction cannot be sustained. Hence, we allow this appeal and set aside the impugned judgment. The Appellant is acquitted of the charge. He shall be released from jail forthwith if not required to be detained in some other criminal case.