FAROOQ HAIDER, J.---This appeal has been filed against the judgment dated 04.07.2011 passed by learned Additional Sessions Judge, Haroonabad, District Bahawalnagar, whereby in case arising out of FIR No.518/2010 dated 10.11.2010 registered under section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station Faqir Wali, District Bahawalnagar (Ex.PA), the learned trial Court has convicted and sentenced the appellant as under:- Under Section 9(c) of Control of Narcotic Substances Act 1997 to imprisonment for life with fine of Rs.50,000/- and in default of payment thereof to further undergo S.I for 06 months with benefit of Section 382-B, Cr.P.C.
2. Briefly, the accusation levelled in the complaint (Ex.PA/1) drafted and sent by Muhammad Riaz A.S.I./PW-3 against the appellant, on the basis of which, above mentioned FIR was chalked out, is that on 10.11.2010 at about 07:30 p.m. he along with other police officials was on patrolling duty at Chak No.119/6-R where he received spy information that Munir Ahmad, who himself uses Chura Poast {{URDU TEXT}}and also sells the same, is selling Chura Poast {{URDU TEXT}} in a vacant compound {{URDU TEXT}}adjacent to his house and could be apprehended, if a raid is conducted; on receiving this information, complainant along with raiding team conducted a raid at the pointed place, apprehended Munir Ahmad (appellant) and from his possession, four sacks {{URDU TEXT}} of Chura Poast {{URDU TEXT}} weighing 25 kilograms each (total weighing 100-Kilograms) were recovered; from the said recovered Chura Poast, sealed parcels weighing 01 kilogram from each bag for chemical analysis, were prepared, whereas remaining case property was also taken into possession through sealed parcels.
After investigation, challan report was sent to Court against appellant; charge was framed against him, to which he pleaded not guilty; prosecution produced its evidence, learned trial Court recorded statement of the appellant under section 342, Cr.P.C., wherein he negated case of prosecution. Thereafter, learned trial court after hearing learned counsel for the parties passed the impugned judgment, whereby the appellant was convicted and sentenced as mentioned above.
3. Learned counsel for the appellant has contended that conviction recorded and sentence awarded through the impugned judgment are against the law and facts, therefore, same are liable to be set aside; further requested for acceptance of instant appeal.
4. On the other hand, learned Deputy Prosecutor General has supported the impugned judgment and requested for dismissal of instant appeal.
5. Arguments heard. Record perused.
6. It has been noticed that as per case of prosecution, firstly four sealed bags of samples of allegedly recovered Chura Poast were sent to the office of Chemical Examiner, Punjab, Multan on 25.11.2010 and in this regard, prosecution has got exhibited report of Chemical Examiner, Punjab, Multan (Ex.PD/1); perusal of said report reveals that Excise and Taxation Officer (E.T.O.) sent/ dispatched/forwarded the afore-mentioned parcels to the office of Chemical Examiner, Multan but learned Deputy Prosecutor General after going through the record could not refer even an iota of material/evidence to show in this regard that how these parcels of sample reached to the office of E.T.O.,' how much period it remained there and whether it remained in safe custody, this aspect has impaired and vitiated the conclusiveness and reliability of the report of Chemical Examiner, Punjab, Multan, rendering it incapable for sustaining conviction; in this regard, case of "Muhammad Abbas v. The State" (2006 YLR 2378), can be referred advantageously, relevant portion whereof is being reproduced below: "It was only Muhammad Ramean, FC (PW.4) who had stated before the learned trial Court that on 13.07.1998 he had been handed over two parcels said to contain heroin and Charas by Moharrir Head Constable of the relevant police station for onward transmission to the office of the Chemical Examiner which he delivered there on the same day. The report of the Chemical Examiner (Exhibit-PE), however, shows that the docket of the samples of the recovered substance had been prepared on 06.07.1998 and the said samples had been dispatched by the Excise and Taxation Officer, Sheikhupura and not by the local police. We have required the learned counsel for the State to explain as to how the samples of the recovered substance had come in the hands of the Excise and Taxation Officer, Sheikhupura and what was the evidence available on the record to confirm that the same had been kept in safe custody while in possession of the Excise and Taxation Officer, Sheikhupura but after going through the record of this case from cover to cover he has categorically conceded that there is no evidence whatsoever available on the record in those respects. In such a state of the evidence available on the record safe custody of the recovered substance or its samples is not discernable from the record of this case and, thus, we have found it to be extremely unsafe to uphold and maintain the appellant's convictions and sentences recorded by the learned trial court."
Another report of Chemical Examiner, Punjab, Lahore has also been got exhibited by the prosecution as Ex.PD, which reflects that in this case one sealed parcel was sent to the office of Chemical Examiner, Punjab, Lahore on 02.04.2011 through Muhammad Akram A.S.I., however, perusal of record reveals that said Muhammad Akram A.S.I. has not been produced by the prosecution to prove said fact. Therefore, safe deposit of said sealed parcel has also not been got established/proved by the prosecution. Now law is well settled on the point that in narcotics cases, unbroken chain of "safe custody of allegedly recovered case property and parcel of sample" is to be proved, otherwise, conviction is not possible and it is rightly so because in narcotics cases recovery of narcotics is not a corroboratory piece of evidence rather it constitutes the offence itself and entails punishment. Guidance in this regard has been sought from the dictum laid down in case of "The State through Regional Director ANF v. Imam Bakhsh" (2018 SCM R 2039), relevant portion whereof is being reproduced below:-- "Chain of Custody - Safe custody and safe transmission
9. We have noted above that in Criminal Appeals Nos.523 to 525/2017 and No.22/2018, safe custody and safe transmission of the alleged drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory are not satisfactorily established. The chain of custody begins with the recovery of the seized drugby 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.
20.....................................................The representative samples of the alleged drug must be in safe custody and undergo safe transmission front the stage of recovery till it is received at the Narcotic, Testing Laboratory" (emphasis added)
In this regard, guidance has also been sought from the dictum laid down in case of "Abdul Ghani and others v. The State and others" (2019 SCM R 608); relevant portion whereof is being reproduced:- "There is hardly any occasion for discussing the merits of the case against the appellants because the record of the case shows that safe custody of the recovered substance as well as safe transmission of samples of the recovered substance to the office of the Chemical Examiner had not been established by the prosecution in this case. Nisar Ahmed, S.I./SHO complainant (PW-1) had stated before the trial court that he had deposited the recovered substance at the Malkhana of the local Police Station but admittedly the Moharrir of the said Police Station had not been produced before the trial court to depose about safe custody of the recovered substance. It is also not denied that Ali Sher, H. C. who had delivered the samples of the recovered substance at the office of the Chemical Examiner had also not been produced during the trial so as to confirm safe transmission of the samples of the recovered substance. It has already been clarified by this Court in the cases of The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), Ikramullah and others v. The State (2015 SCMR 1002 and Amjad Ali v. The State (2012 SCMR 577) that in a case where safe custody of the recovered substance or safe transmission of samples of the recovered substance is not proved by the prosecution through independent evidence there it cannot be concluded that the prosecution had succeeded in establishing its case against the appellants beyond reasonable doubt. The case in hand suffers from the same legal defects. This appeal is, therefore, allowed, the convictions and sentences of the appellants recorded and upheld by the courts below are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required to be detained in connection with any other case."
7. It is trite of law that single dent in case of prosecution is sufficient for acquittal, in this regard, reliance can be placed upon the cases of "Muhammad Mansha v. The State" (2018 SCM R 772), "Abdul Jabbar and another v. The State" (2019 SCM R 129) and "Mst. Asia Bibi v. The State and others" (PLD 2019 SC 64).
8. Nutshell of the above discussion is that since safe custody and transmission of parcels of sample from point/date of recovery to office of Chemical Examiner has not been proved in this case, therefore, reports of Chemical Examiner are inconclusive and cannot be made basis for conviction, resultantly, prosecution has been failed to prove its case against the appellant beyond shadow of doubt, hence, there is no need to discuss defence version and other merits of the case.
9. Resultantly, this appeal is allowed/accepted, conviction recorded against and sentence awarded to the appellant through the impugned judgment dated 04.07.2001, is hereby set aside.
Munir Ahmad (appellant) is acquitted of the charge. He is on bail after suspension of his sentence; therefore, his surety is discharged from the liability of bail bonds.