TARIQ SALEEM SHEIKH, J.--This appeal under Section 48 of the Control of Narcotic Substances Act, 1997 (the "Act"), is directed against judgment dated 30.5.2018 passed by the learned Additio nal Sessions Judge, Burewala, in case FIR No. 205/2017 dated 14.5.2017 registered at Police Station Sahuka, District Vehari, for an offence under Section 9(c) of the Act.
2. Brief facts of the case are that on 14.5.2017 Complainant Taj Muhammad/ASI (PW-3) was on patrol duty with other police officials when he received a secret information that a notorious drug peddler was selling charas at Rajbah Jamlera under a Sheesham (dalbergia sissoo) tree and that he could be apprehended if a prompt action was taken. On this tip-of f the Complainant conducted a raid and nabbed him. He disclosed his name as Nazir Ahmad alias Gaggi son of Muhammad Yar (the Appellant). He had a cloth bag hanging by his right shoulder which was checked and 1250 grams charas, a weighing scale and two bots of 10 grams each were recovered therefrom.
His personal search led to the recovery of Rs.950/- which were alleged to be sale proceeds of narcotics. Taj Muhammad/ASI (PW-3) drew 63 grams from the recovered substance and prepa red a sealed sample parcel for chemical analysis and preserved the rema ining bulk P-1 as well as the Wattak money P-2 and scale P-3 along with bots P-4/1-2 through a separate sealed parcel. Then he took both these parcels into his possession vide Recovery Memo Exh.PB. After that he drafted complaint Exh.P A/I and sent it to the police station through Zahid Hussain 738/C on the basis of which Muhammad Arshad 5I6/HC (PW-1) registered FIR Exh.P A. The investigation of the case was entrusted to Muhammad Aslam/SI (PW-2). He found that the Appellant had committed the offence and submitted report under Section 173 Cr.P.C. On 21.7.2017 the learned Addition al Sessions Judge indicted the Appellant who denied the charge and claimed trial.
3. The prosecution examined five witnesses to prove its case. Taj Muhammad/ASI (PW-3) was the Complainant of the case and also deposited the sample parcel at the office of the Punjab Forensic Science Agency (PFSA) for chemical analysis. He and Muhammad Iqbal 645/C (PW-4) testified about the recovery of contraband charas, Wattak money , weighing scale and bots from the Appellant. Muhammad Arshad 516/HC (PW-I) drew FIR Exh.P A.
Zafar Iqbal 790/HC (PW-5) was the Moharrar of the police station who proved safe custody of the case property in the Malkhana . The Investigating Officer, Muhammad Aslam/SI (PW-2), gave details of his investigation. In documentary evidence the prosecution inter alia produced the 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. He maintained that all the PWs were police officials and had involved him in a false case just to show their performance to the high-ups of the department. He neither got his statement recorded under Section 340(2) Cr.P.C. nor examined any witness in his defence.
5. On the conclusion of trial, vide judgme nt dated 30.5.2018, the learned trial Court convicted the Appellant under Section 9(c) of the Act and sentenced him to rigorous imprisonment for four years with fine of Rs.20,000/- and in default thereof to undergo simple imprisonment for a further period of one month. However , he extended benefit of Section 382-B, Cr .P.C. to him. Hence, this appeal.
6. The learned counsel for the Appellant contended that the case against- the Appellant was false and concocted.
Although there was a specific allegation against the Appellant that he was selling charas, nobody was arrested while purchasing the contraband from him. He further contended that the prosecution witnesses were untrustworthy because they contradicted each other on material points.. In the absence of credible oral account, the Narcotics Analysis Report Exh.PD had no legal value. Even otherwise, safe custody of the case property in the Malkhana and its subsequent transmission was not proved which vitiated report Exh.PD. The learned counsel argued that the learned trial Court had failed to appreciate the evidence properly which had caused serious miscarriage of justice.
As such, the impugned judgment was liable to be set aside and the Appellant was entitled to acquittal.
7. On the other hand, the learned Deputy Prosecutor General vehemently opposed this appeal. He contended that 1250 grams charas along with weighing scale, bots and Wattak money were recovered from the Appe llant's physical possession which was duly prove d at the trial. There was no evidence that the police had any enmity with him so the question of false implication did not arise. As regards the contradi ctions, the learned Law Officer submitted that they were trivial and had no bearing on the case. He prayed for dismissal of this appeal.
8. Arguments heard. Record perused.
9. According to the prosecution, on 14.5.2017 the Appellant was apprehended from near Rajbah Jamlera in Basti Jagga within the limits of Police Station Sahuka, District Vehari and 1250 grams charas along with weighing scale, bots and Wattak money were recovered from his physical possession. Complain ant Taj Muhammad/ASI (PW-3) and Muhammad Iqbal 645/C (PW-4) testified about the said recoveries. We have considered their testimonies along with the statements of other witnesses and have found the following discrepancies: i) Muhammad Iqbal 645/C (PW-4) deposed that the substance (charas) recovered from the Appellant was in two pieces while the Investigating Of ficer, Muhammad Aslam/SI (PW -2), said that it was in one piece. ii) Taj Muhammad/ASI (PW-3) deposed that he made three parcels of the recovered articles. In contrast, Muhammad Iqbal 645/C (PW-4) indicated that they were more than three when he stated in his examination-in- chief that: "Taj Muhammad/ASI segregated 63 grams of charas out of 1250 grams charas for its analysis from PFSA Lahore. The segregated charas was sample, remaining charas, sale procee d amount, scale along with two bots and bag of cloth P-5. Taj Mithamma d/AS1 converted the same into sealed parcels separately and took the same into possession vide Recovery Memo Exh.PB." However , Zafar Iqbal, 790/HC (PW-5) categorically said that the parcels, were four in number: the first contained sale proceeds of Rs.950/-, the second had scale, hots, and a bag of cloth, the third was of sample parcel and the fourth contained the remainder of the recovered charas.
10. According to the prosecution, Comp lainant Taj Muhammad/ASI (PW-3) sent the complaint Exh. PA/I to the police station for registration of formal FIR,.through Zahid Hussain 738/C. We have noted that the said constable was not examined. In Minhaj Khan v. The State (2019 SCMR 326) the Hon'ble Supreme Court of Pakistan held that such a person was a material witness and considered it as one of the grounds to acquit the accused.
11. This is not all. The prosecution has failed to prove safe custody of the case property and safe transmission of the sample parcel from the crime scene to the PFSA which is mandatory in view of the law laid down by the apex Court in Ikramullah v. State (SCMR 1002 ) and The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039 ).
12. Taj Muhammad ASI/ (PW-3) testified that 1250 grams charas was recovered from the Appellant. He drew 63 grams therefrom and prepared a sealed parcel for chemical analysis and preserved the remaining bulk in a distinct parcel and then seized both the parcels (along with other articles) vide Recovery Memo Exh.PB. However , he did not say what he did with them. The learned Deputy Prosecutor General argued that Muhammad Aslam/SI (PW-2) had stated that Taj Muhammad had handed over the case property to him and his statement was sufficient to complete the chain. We are afraid, we cannot agree with him as criminal cases cannot be decided on assumptions.
The prosecution, must prove each relevant fact through legal evidence.
13. Taj Muhammad/ASI (PW-3) deposed that he sealed the recovered charas in the shape of "pothli ". However , the learned trial Court observed that the parcel P-1 produced before it was not in that shape. Thus, charas P-1 was not the same substance that was allegedly recovered from the Appellant and he was not confronted with it.
14. Positive Narcotics Analysis Report Exh.PD is of no avail to the prosecution as the primary evidence is liable to be discarded.
15. In the result, we hold that the conviction and sentence recorded by the learned trial Court against the Appellant cannot be sustained. Accordingly , we allow this appeal and set aside the impugned judgment dated 30.5.2018. The Appellant is acquitted of the charge. He shall be released from the jail forthwith if not required to be -detained in some other case.