Sardar Muhammad Sarfraz Dogar , J.--Adnan Shah (appellant) was entangled in case FIR No. 19, dated 09.01.2017 offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered with the Police Station Kiyali, District Gujranwala and was tried by the learned Additional Sessions Judge Gujranwala. The learned trial Court seized with the matter in terms of judgment dated 06.10.2018, convicted the appellant under Section 9(c) of The Control of Narcotic Substances Act, 1997, and sentenced to undergo Five Years & Six months rigorous imprisonment with the direction to pay Rs. 25,000/- as fine and in case of default thereof, the appellant would undergo simple imprisonment for 51/2 months in default thereof. The benefit of Section 382-B, Cr.P.C. was also extended in favour of the appellant. The appellant has assailed his conviction and sentence by filing the instant appeal.
2. The prosecution story as alleged in the FIR (Exh.P A) lodged on the complaint (Exh.PD) of Muhammad Anwar , S.I/complainant (PW-5) is that on 09.01.2017 at 8:45 a.m, he (PW-5) albngwith other officers/of ficials on a tip-of f apprehended the appellant with a Gourmet, Bakers shopper in his right hand. On search, charas weighing 2100 grams was recovered from the said shopper . Investigating Officer prepared a sealed parcel of the said charas.
Recovery memo (Ex.PC) was attested by Ghulam Farid & Imran Khalid ASis. Consequently , the complainant (PW- 5) drafted the complaint (Exh.PD) and transmitted the same to the Police Station through Naveed Ahmad 4597/C for registration of criminal case.
3. After completion of investigation and requisite formalities, the appellant was forwarded to the Court for trial where he was formally charge sheeted but he denied the allegation and claimed trial. In order to prove its case against the appellant, the prosecution examined as many as five witnesses besides tendering report of Punjab Forensic Science Agency (Exh.PE) in documentary evidence. Thereafter statement of the appellant under Section 342, Cr.P.C. was recorded wherein he totally refuted the allegation levelled against him and professed his innocence.
The appellant neither wished to examine himself under Section 340(2), Cr.P.C. nor produced any defence evidence.
4. The learned trial Judge after appraising the evidence brought on record and considering the arguments advanced at the bar found the appellant guilty of the charge and thus convicted and sentenced him as mentioned above. Hence, this appeal.
5. We have heard the arguments from both sides and perused the record.
6. From perusal of record it appears that Usman Hassan 3031/HC (PW-2) during examination-in-chief deposed that while his posting as Mo)iarrir , on 09.01.2017 Shaukat Hayat, SI/I.O of the case in hand handed over me a sealed parcel said to contain case property and sample for safe custody in malkhana which on 02.02.2017 I handed over to Muhammad Anwar , S.I(PW -5) for onward transmission to the office of P.F.S.A, however , while facing cross- examination stated that "It is correct that the sealed parcel of narcotics is to be deposited in the office of PFSA, Lahore within 72 hours. On the other hand, Shaukat Hayat, S.I/I.O (PW-3) deposed that "on 2.2.20171 received case property i.e. Charas from Moharar of the police Station and transmitted the same to the office of PFSA, Lahore on the same day intact". Whereas, perusal of report of Punjab Forensic Science Agency (Exh.PE) reflects that Shoukat Hayat, S.I. submitted one sealed parcel containing approximately 2100 gram(s) of suspected charas in the office on 2.2.2017; even otherwise, Moharrir's deposition regarding safe custody of case property in the Maalkhana is silent. Meaning thereby , the prosecution witnesses are not consistent with regard to safe custody as well as transmission of case property to the Punjab Forensic Science Agency; contradictions in the statements of PWs as well as report of PFSA cannot be ignored, which creates dent in the prosecution case. In the attending circumstances, the report of PFSA (Exh.P E), being tainted with doubts, cannot be relied upon to prove the guilt of the appellant and in such eventuality , it is not possible to uphold and sustain the judgment of conviction and sentence against the appellant.
7. After a careful scrutiny of the mater ial available on the record, we have come to the conclusion that the prosecution has not established safe custody of case property in Maalkhana as well as safe transmission to the office of PFSA; there are serious discrepancies in respect of transmission of case property to the of fice of PFSA.
8. All these facts evaded the credibility of the deposit of the case property with the Office of PFSA, Lahore and rendered the case of the prosecution doubtful. The burden always remains on prosecution to prove affirmatively right from the arrest of the accused, seizer of the recovered contraband, deposit with moharrar on the same day and till it reaches the office of PFSA, Lahore. All these facts must be in line but the facts of the present case create doubt on the case of the prosecution and benefit of reasonable doubt always goes to the accused and not to the prosecution. The prosecution has failed to prove its case beyond reasonable doubt. As per dictates of law benefit of every doubt is to be extended in favour of the accused. In the case of "Muhammad Akram v. The State" (2009 SCMR230) , it is held as under: "Benefit of doubt...........Principles--For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts--Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."
In the case of "Muhammad Zaman versus The State" (2014 SCMR 749 ), it is held as under: "Needless to say that even a single doubt if found reasonable, is enough to warrant acquittal of the accused."
9. Now adverting to the question with regard to dispatching the samples to Punjab Forensic Science Agency Lahore after considerable and long period is concerned, suffice it to observe here that the, alleged recovery of the contraband was effected on 9.1.2017 and made a sealed parcel of whole contraband for chemical analysis at the place of occurrence. Legally , the prosecu tion is duty bound to send the samples to the Chemical Examiner within 72 hours of the seizure as required under Rule 4 (2) of The Control of Narcotic Substances (Government Analysts)
Rules, 2001, but perusal of report of Punjab Forensic Science Agency dated 04.05.2017 reflects that the sample was received to the Punjab Forensic Science Agency , Lahore on 2.2.2017, after delay of 23 days and that too without any plausible or justifiable reasoning or explanation. In such background of the case, now serious question arises with regard to safe and secure custody of the contraband from the date of its recovery till the date of its dispatch to the Laboratory . The prosecu tion has miserably failed to produce any entry of Malkhana in order to establish the case against the appellant, therefore, no implicit reliance could be placed on Punjab Forensic Science Agency's report hence the case of the prosecution is highly doubtful, because there is no guarantee that during the intervening period the samples were not changed, replaced or tampered. On this crucial aspect of the case, guidance is sought from the case of "Ikramullah and others v. The State" (2015 SCMR 1002 ), wherein, the Honourable Supreme Court has held as under: "5. In the case in hand not only the report submitted by the Chemical Examiner was legally laconic but safe custody of the recovered substance as well as safe transmission of the separated samples to the office of the Chemical Examiner had also not been established by the prosecution. It is not disputed that the investigating officer appearing before the learned trial Court had failed to even to mention the name of the police official who had taken the samples to the office of the Chemical Examiner and admittedly no such policy official had been produced before the learned trial Court to depose about safe custody of the samples entrusted, to him for being deposited in the office of the Chemical Examiner . In this view of the matter the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmission to the office of the Chemical Examiner without the same being tampered with or replaced while in transit."
10. For what has been discussed above a conclusion is inescapable that the prosecution failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therein, allowed, the conviction and sentence of the appellant recorded by the learned trial Court vide judgment dated 6.10.2018 is set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case.