SARDAR TARIQ MASOOD, J. Appellant Abdul Ghani faced trial in case FIR No. 567 dated 07.06.2011 registered under section 9(c) of the Control of Narcotic Substances Act, 1997 ('the Act') at Police Station Tangi, District Charsadda. After a full-fledged trial, the trial court vide judgment 31.01.2013 convicted the appellant under section 9(c) of the Act and sentenced him to imprisonment for life with fine of Rs.1,00,000/- and in default of payment of fine to further undergo six months simple imprisonment. Benefit of section 382-B, Code of Criminal Procedure, 1898 was also extended to him.
Aggrieved thereof, petitioner filed appeal before the Peshawar High Court, Peshawar which was dismissed vide impugned judgment dated 25.11.2015. Thereafter, appellant filed jail petition before this court wherein leave was granted on 21.04.2022, hence, the instant appeal.
2. We have heard the learned counsel for the appellant as well as the learned Additional Advocate General, Khyber Pakhtunkhwa and perused the available record along with the impugned judgment with their able assistance and observed without touching other merits of the case that four persons were sitting in the truck and out of them three were succeeded in running, away whereas the petitioner was arrested. The record is silent as to who among those four was driving the vehicle. The record also indicates that recovery was affected on 07.06.2011 and according to Gut Shed Khan, ASI (PW-3/complainant) handed over the said sample parcels to Fazal-e-Dayan Masi, ASI/Moharrar (PW-2) on the same day in the police station. Thereafter, according to Noor Ullah Khan, S.I. (PW-4) on 08.06.2011 he sent the sample parcels to the office of Chemical Examiner but according to the report of Chemical Examiner the sample parcels were delivered there by one Head Constable No. 25 on 10.06.2011 but the said Head Constable was not produced by the prosecution during the trial. The learned state counsel could not explain as to why the said Head Constable was not produced to confirm the safe transmission of the sample parcels to the office of Chemical Examiner so an adverse presumption under Article 129(g) of the Qanun-e-Shahadat Order, 1984 can be drawn against that person that he is not supporting the prosecution case. Non- production of the said Head Constable No. 25 indicates that safe transmission has also not been established by the prosecution. It has already been held by this Court in the cases of Amjad Ali v.
The State (2012 SCMR 577), Ikramullah and others v. The State (2015 SCMR 1002), Taimoor Khan and another v. The State and another (2016 SCMR 621), The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039) and Khair-ul-Bashar v. The State (2019 SCMR 930) that in a case containing the above mentioned defect on the part of the prosecution, it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond the shadow of doubt.
3. For the foregoing reasons, this appeal is ALLOWED. The conviction and sentence of the appellant Abdul Ghani recorded and upheld by the courts below in the instant case are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He be released from the jail forthwith if not required to be detained in connection with any other case.