SARDAR TARIQ MASOOD, J. The petitioner Akhtar Gul impugns the judgment dated 22.02.2018, whereby the appeal filed by him was dismissed by the Peshawar High Court, Peshawar, and his conviction and sentence under section 9(c) of the Control of Narcotic Substances Act, 1997 (the Act) were maintained.,
2. Precise facts of the case are that the petitioner was booked in case FIR No.1127/2011, registered on 16.10.2011, at Police Station Agha Mir Jani Shah, Peshawar. On completion of trial, he was convicted under section 9(c) of the Act for recovery of 50 kilograms charas and was sentenced to undergo imprisonment for life with fine of Rs.50,000/- or in default thereof to further undergo 06 months' R.I.
Benefit of section 382-B of the Code of Criminal Procedure, 1898 (Cr.P.C.) was also extended to him.
Appeal filed by the petitioner was dismissed by the Peshawar High Court; hence, this petition for leave to appeal.
3. We have heard the learned counsel for the petitioner, learned counsel for the State, perused the record and observed that the recovery was effected on 16.10.2011, whereas according to the report of Forensic Science Laboratory (FSL), the sample parcels were received there on 21.10.2011 through FC 3087. Neither the Moharrar who kept the sample parcel in the Malkhana from 16.10.2011 to 21.10.2011 nor the constable FC 3078 was produced by the prosecution to establish the safe custody and safe transmission of the sample parcels to the concerned laboratory. So safe custody and safe transmission has not been proved 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 this illegality cannot be ignored and it cannot be held that the prosecution had succeeded in establishing its case against an accused person beyond any reasonable doubt.
4. For the forgoing, this petition is converted into, appeal and allowed. The conviction and sentence of the appellant Akhtar recorded and upheld by the courts below in the instant case are set aside and he is acquitted of the charge by extending benefit of doubt. He is directed to be released from jail forthwith in this case, if not required to be detained in connection with any other case.