MUSARRAT HILALI, J.---This criminal appeal is directed against the judgment dated 05.03.2019 of the learned Additional Sessions Judge-I/Judge, Special Court, Kohat passed in case FIR No. 145 dated 09.03.2018 under Section 9(c) CNSA read with Section 170, P.P.C. of Police Station Muhammad Riaz Shaheed, Kohat, whereby the appellant has been convicted and sentenced to suffer rigorous imprisonment for six and a half years with a fine of Rs.30,000/- with benefit of Section 382-B, Cr.P.C. However, co-accused, Imran Khan was acquitted of the charges levelled against him.
2. Brief facts of the case are that on the eventful day at the relevant time, complainant Islam-ud-Din SHO Police Station Muhammad Riaz Shaheed, Kohat along with other police personnel was present on special Nakabandi at Highway check post Kohat, in the meantime, a Suzuki, green in colour, bearing registration No. PRL-7136/Peshawar arrived which was stopped for the purpose of checking; the said vehicle was driven by accused Imran Khan son of Haji Sahib Noor while the person sitting on second seat disclosed his name as Sadiq Imran son of Haleem Shah. From the lap of Sadiq Imran, a black coloured plastic bag was recovered which on checking led to the recovery of three packets of charas Gardha wrapped in yellow scotch tape, which on weighme found to be 1240 grams each, 3720 grams in toto.
5/5 grams charas were separated from each packet for chemical analysis and sealed into parcels. The remaining stuff was also sealed into another parcel. Pursuant to the ibid recovery, instant FIR was registered.
3. On completion of investigation, challan was put in Court, where the appellant along with his co-accused was indicted for the crime to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined 07 witnesses, where after statements of the accused were recorded, wherein they professed innocence, but neither wished to produce evidence in defence nor opted to record statement on oath under Section 340(2), Cr.P.C. The learned trial Court, after conclusion of the trial, found the appellant guilty of the charge and while recording his conviction sentenced him, as mentioned above, whereas co-accus ed, Imran Khan was acquitted, hence the instant appeal.
Arguments heard and record gone through.
4. As has been mentioned in the details given hereinabove, the prosecution has examined seven witnesses in all.
The appellant was examined under Section 342, Cr.P.C. He, however , did not opt either to record his statement under Section 340(2), Cr.P.C. or to lead any defence evidence.
5. It has been alleged that on the day of occurrence, the complainant along with other police personnel were present on the place of occurrence and during routine search, they stopped a Suzuki bearing registration No. PRL-7136/ Peshawar for the purpose of checking. The said Suzuki was driven by co-accused Imran Khan while the accused- appellant was sitting on rear seat having a plastic bag in his lap and on search 03 packets chars grade were recovered from the said plastic bag. The recovered packets of chars were weighed which came out to be 1240/1240 grams (total 3720 grams). From each packet of chars 05 grams were separated for the purpose of test and analysis while the remaining stuff was sealed in a parcel. Since the Act provides stringent measures against a person manufacturing, selling, dealing the narcotic drugs, therefore, to eliminate the possibility of innocent persons being entangled in the ibid Act, the prosecution is required to establish that the seized articles were properly preserved and protected in between the seizure and the examination of the sample by the Analyst. In the instant case, the record is silent as to whom the samples were handed over for onward transmission to FSL, neither in the FIR nor in the prosecution evidence. It may be noted that the occurrence had taken place on 09.03.2018 while the A application for sending the samples to the Laboratory for test and analysis was drafted on 12.03.2018. The samples were received by the Incharge FSL on 13.03.2018 from FC No. 63. There is nothing on the record as to where the said samples were lying in the interregnum period. The present ease is fully covered by the judgment delivered by the august Supreme Court in case titled "Abdul Ghani and others v. The State and others" (2019 SCMR 608). The relevant para of the said judgment is reproduced as follows:- "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."
6. Another important factor which requires to be taken note of is that the accused-appellant is a serving police official and as has been stated by the accused-appellant in his statement recorded under Section 342, Cr.P.C, he had remained gunner with the complainant (Islamuddin, SHO) and prior to the present occurrence and also on the day of occurrence, some hot words were exchanged between the complainant and him whereafter the accused- appellant was enrobed in the instant case to wreak vengeance on the accused-appellant. The statement of accused-appellant finds support from the statement of PW-5 wherein he has admitted in his statement that the accused-appellant had remained gunner with the complainant Islamuddin at Hangu.
7. Keeping in view the statements of PW-5 and accused-appellant, we have come to the conclusion that the complainant was already carrying a grudge against the accused-appellant and the instant FIR was lodged against the accused-appellant with ulterior motives, thus the conviction and sentence recorded by the learned trial Court cannot be sustained.
8. Resultantly, this appeal is allowed, the impugned judgment dated 05.03.2019 of the learned Additional Sessions Judge-I/Judge, Special Court, Kohat is set aside and the appellant is acquitted of the charges levelled against him. He be released forthwith, if not required in any other case.
8(sic). Above are the reasons for the short order of even date.