Farooq Haider , J.:- Through this single judgment Crl. Appeal No.398/2016 and Crl. Appeal No.405/2016 , filed by Muhammad Akhtar and Khadim Hussain (appellants), respectively against judgment dated 18.08.2016 passed by learned Additional Sessions Judge, Bahawalpur , whereby in case arising out of F.I.R No.163/2014 dated 15.06.2014 registered under Section 9 (c) of the Control of Narcotic Substances Act, 1997 at Police Station Samma Satta, Bahawalpur (Ex.P A), the learned trial Court has convicted and sentenced the appellants under Section 9 (c) of the Control of Narcotic Substances Act, 1997 to life imprisonment each with payment of fine Rs.50,000/- each and in default thereof to further undergo one year S.I. each with benefit of Section 382-B Cr.P.C., are being decided together because both these matters have arisen out of one and same judgment.
2. Briefly , the accusation levelled in the complaint Ex.PA/3 against the appellants , on the basis of which, above mentioned FIR was chalked out, is that on 15.06.2014 at 04:00 p.m., Muhammad Meraj SI/complainant/PW -6 alongwith other police officials was present at KLP Road near Zakhira where he received spy information that huge quantity of bhang packed in bags is present ahead of Chowk Azam KLP Road near Basti Labana Chandi Pir and if a raid is conducted, the same could be recovered, upon which, the complainant alongwith other police officials reached at the pointed place and on the signal of spy, tried to apprehend four persons having bhang but out of them, two accused persons namely Muhammad Siddique son of Ghulam Fareed and Khadim Hussain son of Ghulam Rasool fled away from the spot whereas accused persons Khadim Hussain son of Ghous Bakhsh and Muhammad Akhtar son of Allah Ditta were apprehended who admitted the use and selling of bhang; from the spot, the complainant also took into possession twenty five bags of bhang weighing one maund each; one kilogram from each bag was separated for chemical analysis and secured into twenty five separate parcels whereas remaining case property was also sealed in twenty five separate parcels.
After investigation, challan report was sent to Court against the appellants; charge was framed against them, to which they pleaded not guilty; prosecutio n produced its evidence. Then learned trial Court recorded statement of the appellants under Section 342 Cr.P.C., wherein they negated the case of prosecution. Thereafter , learned trial court after hearing learned counsel for the parties passed the impugned judgmen t, whereby the appellants were convicted and sentenced as mentioned above while their co-accused namely Muhammad Siddique son of Ghulam Rasool and Khadim Hussain son of Ghulam Rasool were acquitted.
3. It is contended by learned counsel for the appellants that conviction recorded and sentence awarded to the appellants through the impugned judgment are against the law and facts; safe custody of parcels of samples and case property has not been proved, hence, he requested that conviction recorded and sentence awarded to the appellants may be set aside.
4. On the other hand, learned Deputy Prosecutor General has opposed the contentions raised by the learned counsel for the appellants and supported the impugned judgment.
5. Arguments heard. Record perused.
6. It is case of the prosecution as per Fard Biyan/complaint (Ex.P A/3) that allegedly 25-bags of bhang were recovered from the possession of the appellants and the same were taken into possession by Muhammad Meraj SI/complainant in presence of Muhammad Imtiaz, ASI and Rab Nawaz 1786/C vide recovery memo Ex.PB.
However , during cross-examination Rab Nawaz Constable (PW -3) stated as under: - "It is correct that the alleged Bhang was not recovered from the exclusive possession of any of the accused" (emphasis added)
Similarly Muhammad Imtiaz ASI (recovery witness) while appearing as PW -4 before the Court stated as under: - "As the accused present in the Court were present besides the Boras therefore, I presumed that they are the owners of these Boras. It is correct that informer did not point us the place of occurrence" (emphasis added)
From the perusal of above portions of statements of PW-3 and PW-4, it is crystal clear that the alleged 25-bags of bhang were not recovered from the sole possession of the appellants rather the same were lying on the bank of the road and recovered from there, which was an open place and accessible to everyo ne. It will not be out of place to mention here that Muhammad Meraj, SI (complainant) while appearing as PW-6 before the Court has deposed as under:- "It is correct that Bhang was not recovered from exclusive possession of Khadim Hussain son of Ghous Bakhsh . Volunteered that Bhang was recovered from all the persons present in the Court" (emphasis added)
It has also been observed that bhang was allegedly recovered on 15.06.2014 whereas its parcels were sent to the office of Punjab Forensic Science Agenc y, Lahore on 15.01.2015 i.e. with the delay of about seven months, for which, no explanation whatsoever has been given by the prosecution. Although rule in this regard is directory yet in peculiar facts and circumstances of the case, this delay raises eyebrows.
Prosecution could not produce any witnes s to prove that said Bhang was brought by present appellants at alleged place of recovery , when brought and from whom brought. In this regard, relevant portion from the evidence of PW-3 Rab Nawaz 1781/C is being reproduced: - "As the accused persons present in the Court were standing by the Boras of Bhang, therefore, we presumed that they are the owners in possession of said Boras" (emphasis added)
Here it will not be out of place to mention that when on the request of learned counsel for the defence, the case property i.e. Boras were de-sealed by the learned trial court and question was put to PW-6 Muhammad Meraj, SI, he replied as under: - "It is correct that the material in de-sealed boras is not seem like bhang"
Said witness also stated as under: - "I cannot tell the de-sealed Boras were sealed by me or not"
"The de-sealed Boras do not contain my seals as I affixed at the time of sealing the Boras. Volunteered that seals on the de-sealed Boras seem fresh. It is correct that the leaves in the third de-sealed Bora are of Sufaida and Bhang. It is also correct that there are pieces of old dirty torn clothes in the first de-sealed Bora. It is correct that the weight of the Boras is 15 Kgs each. There are 21 Boras available in the Court"
Said PW -6 also stated as under: - "The Boras were in the custody of Malkhana of the Courts. I deposited the Boras in Malkhana. However, I cannot recall the date when the Boras were deposited in the Malkhana of the Courts. The case property was kept in P.S. Samasatta for 8-9 months thereafter it was deposited in Malkhana. I cannot tell whether the case property was deposited in the Malkhana a year ago, six months ago or three months ago. Due to lack of space in Malkhana the case property was lying under the trees. It is correct that case property was not entered as received by the Incharge Malkhana is the relevant register. I did not appoint any guard on the case property which was lying in open place."
"I cannot tell whether the entry of the case property was available in the record of the police station or the Malkhana of the Court or not. It is correct that SHO Samasatta in his report mentioned that the case property was neither in police station nor in Malkhana of the Court and I.O. is responsible for the custody of case property"
Besides above, Muhammad Nawaz 1572/HC (Moharir of the Police Station) while appearing as PW-7 has deposed as under: - "On 15.6.2014 I was posted at police station Samasatta. On the same day Muhammad Miraj SI handed over to me 25 sample sealed parcels for keeping the same in safe custody of Malkhana and for onward transmission to the office of Chemical Examiner, Lahore. On 14.1.2015 I handed over 25 sealed parcels to Muhammad Zafar No.1936/C for onward transmission to the office of Punjab Forensic Science Agency, Lahore. I.O. recorded my statement u/s 161 Cr.P.C. on 16.1.2015"
Perusal of aforementioned statement of Moharir clearly reveals that he only received twenty five sealed parcels of samples which he statedly transmitted to the office of Punjab Forensic Science Agency , Lahore and never received remaining case property . Therefore, it is now crystal clear that case property was neither received by Moharir nor kept by him in safe custody . Said PW -7 Muhammad Nawaz 1572/HC has also stated as under: - "It is correct that the sealed parcels were handed over to me on 14.1.2015 which I deposited in office of Forensic Science Agency on 15.1.2015. It is correct that FIR was registered on 15.6.2014 and after seven months the above said parcels were handed over to me for onward transmission to Punjab Forensic Science Agency , Lahore"
This portion of statement of the Moharir (PW-7) clearly reflects that parcels were received by the Moharir after about seven months on 14.1.2015 and he deposited the same on 15.1.2015. Here question does arise that where these parcels remained from the date of alleged recovery i.e. 15.6.2014 till 14.1.2015. Another aspect of the matter is that report of Punjab Forensic Science Agency, Lahore, itself got exhibited by the prosecution as Ex.PD, does not reflect that said parcels of samples were sent back from the Punjab Forensic Science Agency, Lahore yet it is astonishing fact that same have been produced in the Court as P-2/26-50, meaning thereby that said parcels of samples were never deposited in the office of Punjab Forensic Science Agency , Lahore. Therefore, in the peculiar facts and circumstances of the case, mentioned above, safe custody of parcels of samples from point/date of recovery to its receipt in Punjab Forensic Science Agency , Lahore has not been proved, similarly , safe custody of case property from recovery to its production in the Court has not been proved. It is important to mention here that proving unbroken chain of safe custody of case property and parcel of sample is necessary for conviction in narcotics cases, because recovery in such cases is not mere corroboratory piece of evidence rather itself constitutes the charge and entails punishment and if said unbroken chain of safe custody has not been proved, then it is fatal for the case of prosecution. In this regard, guidance can be sought from the case of "The State through Regional Director ANF versus Imam Bakhsh " (2018 SCMR 2039 ) and "Abdul Ghani and others versus The State and others" (2019 SCMR 608 ); relevant portion from the latter case law 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 (PW1) 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 detaine d in connection with any other case."
There is another important aspect of the matter that Muhammad Siddique son of Ghulam Rasool and Khadim Hussain son of Ghulam Rasool (co-accused of the appellants) were allegedly present with the appellants as their companions at the place of occurrence but they have been acquitted by the learned trial Court vide impugned judgment, therefore, same case of prosecution and same set of witnesses have not been believed against them. By now law has been well settled that "falsus in uno, falsus in omnibus" will be applicable in deciding criminal cases and in this regard guidance has been sought from the dictum, which has been recently laid down on the subject and pronounced by full Bench of the Hon'ble Supreme Court of Pakistan while deciding case of "Notice to Police Constable Khizar Hayat son of Hadait Ullah" in the matter of "Criminal Miscellaneous Application No.200 of 2019 in Criminal Appeal No.238-L of 2013 vide order dated 04.03.2019" (PLD 2019 SC 527), relevant paragraph No.21 whereof is being reproduced: - "We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society. Our judicial system has suffered a lot as a consequence of the above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule of falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit. It is also directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury." (emphasis added)
Therefore, when co-accused mentioned above have been acquitted, then, same set of witnesses cannot be relied upon against present appellants.
7. In view of above, we have reached at the conclusion that prosecution has been failed to prove its case against the appellants. In this scenario, there is no need to discuss defence version.
8. Resultantly , both the aforementioned appeals are allowed conviction recorded and sentence awarded to the appellants through impugned judgment dated 18.08.2016 passed in case arising out of FIR No.163/2014 dated 15.06.2014 registered under Section 9 (c) of the Control of Narcotic Substances Act, 1997 at Police Station Samma Satta, Bahawalpur (Ex.P A), are hereby set aside. The appellants are acquitted of the charge, they shall be released from jail forthwith if not required in any other case.