RAJA SHAHID MEHMOOD ABBASI, J. Khurram Shehzad, appellant by filing the instant appeal, has challenged judgment dated 16-02-2016 passed by learned Additional Sessions Judge, Dera Ghazi Khan in case FIR No.217 dated 25-07-2015, under section 9(c) of the Control of Narcotic Substances Act 1997, registered at Police Station B-Division, D.G. Khan, whereby he was held guilty under section 9(c) of the Act ibid and sentenced to one (01) year and two (02) months' R.I. and fine of Rs.10,000/-, in default to further undergo S.I. for one (01) month with benefit of section 382-B, Cr.P.C.
2. Facts of the case in brief as disclosed in the crime report (Ex.PA) that on 25-07-2015, at about 8:20 p.m. the contingent of police of Police St ion B-Division, D.G. Khan, on a tip off received from secret informer, appre-hended the appellant from the area of Black No.17, Pull Pairay Wali, having a block colour shopping bag in his right hand containing charas weighing 1045 grams. Out of the recovered contraband 110 grams was separated for chemical analysis. Hence, the FIR.
3. After formal investigation, report under Section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned Additional Sessions Judge, D.G.Khan and the appellant was sent for trial. At the trial, the prosecution examined four witnesses namely Bashir Ahmad, ASI (P.W.1), Muhammad Ismail 1423/HC (P.W.2), Muhammad Idrees 267/HC (P.W.3) and Muhammad Yar, SI (P.W.4). The prosecution gave up Sajjad Hussain 476/C and Tahir Abbas I473/C PWs being unnecessary and after tendering in evidence report of Punjab Forensic Science Agency, Lahore (Ex.PE) closed its evidence.
4. After completion of prosecution evidence, statement under section 342, Cr.P.C. of appellant was recorded wherein he refuted the allegations levelled against him and professed his innocence. The appellant neither opted to appear as his own witness under section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations levelled against him by the Prosecution nor produced any defence evidence.
5. After completion of evidence from both the sides, the learned trial court, after holding the appellant guilty of the offence, convicted as mentioned in preceding paragraph No.1 above.
6. Heard. Record perused.
7. After the careful scrutiny of the material available on record; we noted that the prosecution has failed to establish the safe transmission of the recovered contraband to the office of Punjab Forensic Science Agency, Lahore. According to Muhammad Yar, SI, complainant/investigating officer (PW.4), he on the fateful day i.e. 25-07-2015, after the completion of recovery proceedings confined the appellant in the lockup of police station and handed over the case property to the moharrar malkhana. Whereas according to Muhammad Ismail 1.423/HC, moharrar Malkhana (P.W.2) that on 25.07.2015, he was posted at Police Station B-Division and on the said date Muhammad Yaar, SI (P.W.4) handed over to him two sealed parcels containing charas 110 grams and 935 grams, which were kept by him in malkhana in safe custody. He further stated that on 27- 07-2015, he handed over one sealed parcel said to contain charas of weighing 110 grams to Tahir Abbas 1473/C for its onward transmission to the office of chemical analysis but as per the report of Punjab Forensic Science Agency, Lahore (Ex.PE), said Tahir Abbas deposited the sample parcel in the said agency for chemical analysis on 30.07.2015 that too with the delay of two days. Moreso, the said witness has also not been examined by the prosecution and given up him by the prosecution being unnecessary, hence, none production of the said material witness cast serious doubt on the prosecution case. The withholding of this important evidence in the peculiar circumstances of this case leads us to draw an adverse inference against the prosecution keeping in view Article 129(g) of Qanun-e-Shahadat Order, 1984. The prosecution is failed to explain that why the best evidence available with the prosecution in shape of statement of abovesaid witness has been withheld. The said fact when confronted with learned Deputy Prosecutor General present in the Court, he failed to furnish any explanation regarding such lapses of the prosecution. After perusal of evidence on record, we find that the prosecution has not established safe custody of contraband to the police station as well as safe transmission of sample parcel drawn from recovered substance to the office of chemical analysis. It is trite that the prosecution is obliged to establish that the chain of custody of the case property as well as the sample separated therefrom remained unbroken, unsuspicious, indubitable, safe and secure and any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample and will impair and vitiate the conclusiveness and reliability of the Report of the Government Analyst. In this case, the elements of doubt surrounding the prosecution case, as discussed above, have led us to hold that the prosecution has failed to prove the case beyond reasonable doubt to sustain the conviction. The prosecution has not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the sample taken from the recovered substance had safely been transmitted to the office of Punjab Forensic Science Agency, Lahore without the same being tampered with or replaced while in transit. In this way, the safe transmission of the parcel said to contain charas and opium becomes doubtful. Reliance is placed on Amjad Ali v. The State (2012 SCMR 577) and Ikramullah v. The State (2015 SCMR 1002) The Stale through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039). Moreover, it is by now well settled that a single circumstance creating reasonable doubt would be sufficient to cast doubt about the veracity of prosecution case and the benefit of said doubt has to be extended in favour, of the accused not as a matter of grace or concession but as a matter of right. Reliance in this regard is placed upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Akhtar Ali and others v. The State (2008 SCMR 06) and Muhammad Zaman v. The State and others (2014 SCMR 749).
8. In the light of above discussion, the instant appeal (Crl. Appeal. No.122 of 2016), is allowed, impugned judgment dated 26-09-2017, passed, by the learned Additional Sessions Judge, D.G.
Khan, is hereby set aside and Khurram Shehzad, appellant is acquitted of the charge by extending him the benefit of doubt. The appellant is in custody, he be released forthwith, if not required in any other case. The case property i.e. charas shall he destroyed in accordance with law, as observed by the learned trial court, in the judgment impugned.