Ali Zia Bajwa, J.--Through this criminal appeal Muhammad Ajmal son of Nabi Bakhsh, caste Khaira, resident of Basti Kharor , Bait Khanwala, Tehsil Jatoi, District Muzaf fargarh, appellant has challenged his conviction and sentence awarded to him by the learned Additional Sessions Judge, Muzaf fargarh in case FIR No. 360/2020, dated 10.07.2020, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered with Police Station Khangarh, vide judgment dated 06.04.2021, as under: > Under Section 9(c) of the Control of Narcotic Substances Act, 1997 sentenced to undergo R.I. for four years and six months with fine of Rs. 20,000/- and in case of default in payment thereof, to further undergo S.I. for five > Benefit of Section 382-B, Cr .P.C. was also extended in favour of the appellant.
2. Prosecution story as portrayed in the FIR (Exh.P A) lodged by Muhammad Safdar Hussain, ASI (PW-2) is that on 10.07.2020, the complainant along with other police officials was on patrol duty at Shah' Garh Pareetam Road when Suzuki Mehran Car bearing Regis tration No. LEB/8371 Model 2017 pass ed by., Being suspicious it was stopped in which Ejaz Ahmed (since acquitted) was sitting on driving seat while Muhammad Ajmal appellant was sitting on front seat. At that time the appellant was holding two packets of charas in his lap each containing 1000 grams total 2-KGs out of which 50 grams from each packet was separated. He drafted complaint and transmitted it to Police Station through Saeed Ahmed 1111 /C for registration of formal FIR. Thereafter investigation of the case was entrusted to Irshad Anjum, S.I. (PW-4), who visited the place of occurrence from where complainant handed over to him sealed parcels of samples along with case property (P-1 and P-2) and car (P-3), which were taken into possession vide recovery memo. Exh.PB. He prepared rough site plan of the place of occurrence (Exh.PC) and recorded statements of the prosecution witnesses under Section 161, Cr.P.C. On reaching police station, the Investigating Officer deposited the case property with Moharrar for its safe custody and onward transmission to the quarter concerned. During the course of investigation having found the appellant and two other co-accused namely Ejsz Ahmed and Rahat Hassan guilty , Investigating Officer submitted report under Section 173, Cr.P.C. while placing their name in Column No. 3.
3. After submission of challan, learned trial Court formally charge sheeted the accused Ejaz Ahmed, Rahat Hassan and present appellant Muhammad Ajmal to which they pleaded not guilty and claimed' trial. Prosecution in order to establish its case produced as many as six (6) prosecution witnesses.
Muhammad Safdar Hussain, ASI (PW-2) is complainant of the case while Abdul Rehman 1834/HC (PW-3) is the other witness of ocular account/recovery . Ghulab Ali, ASI (PW-1) had chalked out formal FIR while Irshad Anjum, S.I. (PW-4) is Investigating Officer of the case. Moharrar Muhammad Aslam who received the case property appeared as PW -5. Statements of rest of the prosecution witnesses are formal in nature.
4. After completion of the prosecution evidence, statements of the accused persons, as provided under Section 342, Cr.P.C. were recorded by the learned trial Court. They professed innocence and pleaded false implication in the case. They did not opt to get recorded their statement under Section 340(2), Cr.P.C. and did not produce any defence evidence. Upon completion of the trial, the learned trial Court acquitted accused Ejaz Ahmed and Rahat Hussain but found the case against the appellant to have been proved beyond any reasonable shadow of doubt and, thus, convicted and sentenced him as mentioned and detailed above.
5. Arguments heard, record perused.
6. Prosecution version in this case hinges upon ocular/recovery account, its deposit with malkhana and report of panjab Forensic Science Agency in this regard.
7. As far as prosecution version with regard to recovery is concerned, the same has been substantiated through the statements of Muhammad Safdar Hussain, ASI (PW-2) and Abdul Rehman 183/HC (PW-3). Perusal of their statements reflects that both the prosecut ion witnesses remained consistent with regard to factum of recovery from the appellant before us. However , during course of arguments learned counsel for the appellant had vehemently agitated that the prosecution has failed to establish the chain with regard to safe deposit of the case property in the Malkhana. Hence, pivotal point to be determined by us is to evaluate whether the prosecution had been able to establish the safe deposit of the case property or not.
8. According to complainant of this case Muhammad Safdar two packets of Charas, each weighing 1000 grams were allegedly recovered from the appellant. He prepared four parcels, while separating 50 grams from each packet two sample parcels and two separate parcels of bulk quantity of recovered contraband. These four packets were handed over to Investigation Officer Irshad Anjum (PW.4) who further handed over these four parcels to Moharrar Muhammad Aslam (PW.5) for safe custody . According to Moharrar he handed over two sample parcels to Irshad Anjum (PW.4) for onward transmis sion to Forensic Science Agency (PFSA) , who deposited the same there on 13-07-2020 which is also transpired from the report of PFSA EX:PF . According to Moharrar (PW.5) he deposited rest of two parcels of bulk quantity of contraband in Malkhana, Muzaf fargarh on 17-07-2020 vide road Certificate No. 646 but neither any witness who received those parcels there appeared before the Court nor assertion of PW-5 is substantiated by the road Certificate No. 646 EX:DE, which clearly reveals that two parcels were sent to Malakhana through Muhammad Kazim C/1227. Neither Investigating Officer had recorded his statement under Section 161, Cr.P.C. nor was he cited as a witness in the calendar of witnesses. This fact, was also admitted by the Investigating Of ficer/Irshad Anjum, S.I. (PW -4) during the course of trial in the following terms: "It is correct that according to Exh.D.E. Muhammad Kazim 1227/C submitted the parcel in "Malkhana". It is correct that I did not record the statement of M. Kazim under Section 161, Cr.P.C. in this regard nor I incorporated him as witness."
9. There is no cavil to this proposition that chain of custody or safe custody and safe transmission of narcotic drug begins with seizure of the narcotic drug by the law enforcement officer, followed by separation of the representative samples of the seized narcotic drug, storage of the samples and the narcotic substance with the law enforcement agency and then its dispatch to the office of the chemical examiner for examination and testing. Such chain of custody must be unbroken, unsuspicious, safe and secure and in absence of statement of such person, who deposited the case property in Malkhana, it could not be ascertained whether the narcotic substance was safely deposited or otherwise. Absence of such fact would suggest that the chain of custody had been compromised and was no more safe and secure, which shall hit the prosecution case. We are fortified from various judgments of Apex Court.' In Qaiser Khan's case ( 2021 SCMR 363 ) following guidelines were given: "At the very outset, we have observed that allegedly the recovered narcotics were shifted from the spot to the police {{FOOT NOTE}}
40. 2013 SCMR 2039; 2021 SCMR 363 ; 2021 SCMR 451 . {{FOOT NOTE}} station through one Wahab AU Constable but the record would show that neither the statement of the said official was receded nor was he produced as a witness to support the safe transmission of the alleged recovered narcotics to police station, ... The law in this regard is settled by now that if safe custody of narcotics and its transmission through safe hands is not established on the record, same cannot be used against the accused"
(emphasis supplied)
If facts of the case in hand are evaluated on the guidelines of the supra judgments it is crystal clear that prosecution version with regard to deposi t of case property in Malkhana, in absence of statement of B Muhammad Kazim 1227/C, who allegedly deposited there, is ambiguous and indistinct as such it cannot be used against the appellant.
10. Now only evidence against the appellant available on file is report of Punjab Forensic Science Agency (Exh.PE), which no doubt is positive. However , its close scrutiny reflects that net weight of samples sent to PFSA was approximately 100 gram. We have noticed that as far as separation of samples from the recovered bulk narcotic substance, its deposit with Moharrar and further transmission to the Punjab Forensic Science Agency , Lahore, is concerned, it is fully established, through unbroken chain, Hence, if this aspect is taken into consideration, only 100 grams charas can be taken into account against the appellant.
11. Taking into consideration what has been discussed above, conviction and sentence awarded to the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997 is hereby set aside and he is convicted under Section 9(a) of the Act ibid and sentenced to rigorous imprisonment for one year and Fine of Rs. 7,000 or in default simple imprisonment for 3 months, He is also extended the benefit of Section 382-B of the Code of Criminal Procedure, 1898.
12. With the aforesaid modification in conviction and sentence of the appellant, this appeal is dismissed.