CH. ABDUL AZIZ, J.---- Rasheed Ahmed alias Pappu (appellant) involved in case FIR No.582/2017 dated 29.08.2017 registered under Section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as "CNSA, 1997 ") at Police Station Ghalla Mandi, Sahiwal, was tried by learned Additional Sessions Judge, Sahiwal. Trial court vide judgment dated 23.12.2017 proceeded to convict and sentence the appellant in the following terms:- "Under Section 9 (c) of CNSA, 1997 to suffer rigorous imprisonment for 04 years and 06 months with the direction to pay fine of Rs.20,000/- and in default whereof to further undergo 5 months SI. Benefit of section 382-B, Cr.P.C. was also extended in favour of the appellant".
Challenging his conviction and sentence, appellant filed the instant appeal.
2. Precisely stated the facts of the . prosecution case as unfolded from the complai nt (Exh.PB) are to the effect that on 29.08.2017 at about 2:15 p.m., Muhammad Iqbal SI (PW.1) along with Shahid Mchmood T/AS I, Muhammad Usman 681/C and Shehzad Ahmad 342/C while riding on private motorcycles was present at Dispensary Road Sahiwal in connection with patrolling duty; that he received secret information that Rasheed alias Pappu (Appellant) was selling Charas while standing on the backside of Government Girls High School, Sirki Bazar , Sahiwal and if raided, could be arrested; that after the receipt of such information police party headed by Muhammad Iqbal SI conducted raid at the said place and arrested Rasheed Ahmed alias Pappu (Appellant); that from the white colour shopping bag in the right hand of the appellant, Charas weighing 1400 grams was recovered; out of which 70 grams were separated for chemical analysis. Thereafter , he drafted complaint (Exh.PD) and sent the same through Shehzad 342/C to the police station for the registration of formal FIR.
3. After the registration of formal FIR, Muhammad Shahid Nazir SI (PW.4) conducted investigation of this case. He visited the spot, prepared rough site plan (Exh.PC). recorded the statements of prosecution witnesses under Section 161, Cr.P.C and finding the appellant involved in the case got submitted report under section 173 Cr.P.C.
Before the trial court, prosecution in order to prove its case against the appellant produced four PWs, namely , Muhammad Iqbal SI (PW.1) and Muhammad Usman 681/C (PW.2), who are the witnesses of recovery , Gulzar Ahmad 1248/C (PW.3) who was performing his duty as Station Clerk/Moharrar at the eventful time and Muhammad Shahid Nazir SI (PW.4) who is Investigating Officer of the case. After the conclusion of prosecution evidence, the learned trial court also examined the appellant under section 342, Cr.P.C. during which he was asked the questions arising out of the prosecution evidence but he denied almost all such questions while pleading his innocence and involvement in the case. Appellant neither made statement unde r section 340(2) of Cr.P.C., not produced any evidence in his defence. On the conclusion of trial, the appellant was convicted and sentenced as afore-stated, hence, the instant appeal.
4. Learned counsel for the appellant argued that prosecution case from the face of it appears to be dubious in nature; that though as per allegation, 1400 grams of Charas was recovered from the appellant, however , during trial prosecution miserably failed to prove the recovery of such quantity; that though the alleged recovery of Charas was effected from a public place, however , none from the vicinity was produced as witness during trial; that the recovery witnesses contradicted each other on all material aspects which rendered their testimony unworthy of any credence; that though reasonable doubt emerges from the recital of prosecution evidence, however , its benefit was not extended to appellant.
5. On the other hand, learned Deputy Prosecutor General submits that the prosecution successfully proved its case qua the recovery of 1400 grams of Charas from the appellant; that there was no reason for the police officials to falsely plant such quantity of Charas on an innocent person; that during trial the detail of recovery proceedings was successfully narrated by the prosecution witnesses; that despite lengthy cross-examination, the defence failed to get any benefit from the prosecution witnesses and that in the given circumstances, the conviction awarded to the appellant needs no interference.
6. Arguments heard. Record perused.
7. It is discernable from the record that on 29.08.2017 at about 2:15 p.m., the police contingent led by Muhammad Iqbal SI (PW.1) intercepted Rasheed Ahmed (Appellant) upon the receipt of spy information and recovered 1400 grams of Charas from the shopping bag in his hands. At the very outset, it is noticed that charas was recovered from the Appellant in a vicinity known as Dispensary Road situated at 2-Furlangs from the Police Station Ghala Mandi, District Sahiwal. The complaint (Exh.PD) was drafted by Muhammad Iqbal SI and later on was forwarded to the police station for the registration of formal FIR through Shehzad Ahmad 342/C. Needless to mention there that the prosecution has to prove every bit of its case by leading some confidence inspiring evidence. In the instant case, though Shehzad Ahmad 342/C was an important witness to prove that the complaint was transmitted from the place of recovery to the police station, however , neither he was produced before the trial court nor his statement was recorded during investigation. Such omission gives rise to an inference that had Shehzad Ahmad 342/C appeared before the trial court he would not have deposed in support of the prosecution case. Such conclusion drawn by us is in consonance with the Article 129 illustration (g) of Qanun-e-Shahadat Order , 1984, which reads as under:-
129. Court may presume existence of certain facts. The Court may presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and the public, and private business, in their relation to the facts of the particular case.
Illustrations The court may presume:
(g) that evidence which could be and is not produced would, if produced, he unfavourable to the person who withholds it.
While dealing with the issue of non-production of police constable who brought the complaint to the police station for the registration of FIR, the Hon'ble Supreme Court of Pakistan in case reporte d as Minhaj Khan v. The State (2019 SCMR 326 ) held as under:- ".............the non-production of Constable Jehanzeb Khan who took the written complaint and was an eye-witness of the occurrence and of the recovery memorandums; and the inexplicable conduct of the Complainant PW-2 in not proceeding to the police station himself to register the FIR are matters of concern and collectively of incredulity . The conclusion therefrom that we draw is that the prosecution had failed to establish its case against the petitioner beyond reasonable doubt, or , at worst, that the petitioner was involved in a false case for ulterior reasons."
8. The safe custody of recovered narcotics and its onward transmission to the office of PFSA is an aspect of foremost importance and if not proved satisfactorily by the prosecution, its whole superstructure will fall on the ground. In the instant case, it is noted that Gulzar Ahmad 1248/C (PW.3) while appearing in the dock stated in unequivocal terms that no entry in the Station Diary/Rozenamcha was made abou t the receipt of case property for placing in safe custody . The relevant portion of the cross-examination of Gulzar Ahmad 1248/C (PW.3), for advantage sake is being reproduced hereunder:- "I have carefully examined the Rozenamcha of Police Station Ghalla Mandi Sahiwal dated 30.08.2017 and I have not found any entry regarding handing over of the parcel of stated charas to Muhammad Iqbal SI for its onward transmission in the of fice or Punjab Forensic Science Agency , Lahore."
The circumstances discussed hereinabov e are sufficient to demonstrate that the prosecution miserably failed to prove the safe custody as well as the safe transmission of the alleged narcotic subs tance to the office of PFSA. It is settled that failure of the prosecution to prove safe transmission is always regarded fatal for its case. Reference in this regard can be made to the case of Ikramullah and others v. The State (2015 SCMR 1002 ) wherein the Hon'ble Supreme Court of Pakistan observed as under:- "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 transmitted to the office of the Chemical Examiner without the same being tampered with or replaced while in transit."
9. In the light of what has been discussed above, we allow Criminal Appeal No.375 of 2020 while extending benefit of doubt in favour of Rasheed Ahmed alias Pappu Baydeed (appellant), set aside his conviction and sentence and acquit him of the charge. He is in custody; be released forthwith if not required to be detained in any other criminal case.