Raja Shahid Mehmood Abbasi, J. Muhammad Yousaf, appellant was booked and tried in case FIR No. 173 registered at Police Station City Khanewal on 03-04-2020 for an offence under Section 9-
(c) of the Control of Narcotic Substances Act, 1997 and vide judgment dated 21-11-2020 handed down by the learned Additional Sessions Judge/Model Criminal Trial Court, Khanewal, convicted the appellant for offence under Section 9-(c) of the Control of Narcotic Substances Act, 1997 and was sentenced to undergo for 05 years and 06 months R.I. along with fine of Rs. 25,000/-; in default thereof to further undergo S.I. for 05 months and 15 days with benefit of Section 382-B, Cr.P.C.
Feeling aggrieved by the judgment of the learned trial Court Muhammad Yousaf, appellant assailed his conviction and sentence through filing of the instant appeal.
2. The brief facts of the case are that on 03-04-2020, the contingents of police of Police Station City, Khanewal, on spy information, apprehended the appellant from Camp Chowk Jaswant Nagar having a blue colour shopping bag in his right hand containing charas weighing 2110 grams. Out of the recovered contraband, 106 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 learned Additional Sessions Judge/Model Criminal Trial Court, Khanewal and the appellant was sent up for trial. The learned trial Court charge sheeted the appellant to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case produced five witnesses namely Muhammad Waqas Khalid 312/C, recovery witness (P.W.1), Ghazanfar Abbas, HC (P.W.2), Allah Ditta, SI, investigating officer (P.W.3), Noor Muhammad 1436/C (P.W.4) and Muhammad Aslam, ASI, complainant (P.W.5). The prosecution gave up Tahir Qasim, 1420/C, PW being unnecessary and after tendering in evidence report of Punjab Forensic Science Agency, Lahore (Ex.PE) closed its evidence.
4. After closure of prosecution evidence, statement of the appellant was recorded under Section 342 of the Code of Criminal Procedure, 1898 wherein he negated the allegations leveled against him and professed his innocence. He neither opted to appear as his own witness u/s 340(2), Cr.P.C. in disproof of the allegation leveled against him nor produced defence evidence.
5. After completion of evidence from both the sides, the learned trial Court, after holding the appellant guilty of the offence, convicted him as mentioned in preceding paragraph No 1 above.
6. We have heard the arguments advanced by the learned counsel for the appellant as well as the learned Deputy Prosecutor General and have gone through the record. After the careful scrutiny of the material available on record, we come to the conclusion that the prosecution has failed to establish safe custody of recovered substance. We straightaway observed that the prosecution case rests on the statements Ghazanfar Abbas, HC, Moharrar Malkhana (P.W.2), Allah Ditta, SI, investigating officer (P.W.3) and Muhammad Aslam, ASI, complainant (P.W.5). According to Muhammad Aslam, ASI, complainant (PW.5), on the fateful day, after the recovery proceedings, Allah Ditta, SI (P.W.3) came at the spot to whom he handed over the case property and the custody of accused. Whereas Allah Ditta, SI (P.W.3) during his Court statement stated that on 03-04-2020, the investigation of the case was entrusted to him and after receiving the information of the occurrence, he went to the place of occurrence where Muhammad Aslam, ASI (P.W.5) handed over to him the case property as well sample parcel of charas, the custody of the accused and other articles. He further stated that he inspected the place of occurrence, recorded the statements u/s 161, Cr.P.C. of the prosecution witnesses at the spot, prepared rough site plan (Ex.PD), interrogated the accused and found him involved in the case. Thereafter, he proceeded to the police station, where he handed over the case property to the Moharrar and confined the accused in police lockup. According to Ghazanfar Abbas, HC (P.W.2) on 03-04-2020 a written complaint was received by him which was sent by Muhammad Aslam, ASI, (P.W.5) through Noor Muhammad 1426/C and on the basis of which he chalked out formal FIR. He further stated that on the same day Allah Ditta, SI (P.W.3) handed over to him two sealed parcels/case property of the case, which he kept in malkhana in safe custody. Thereafter, on 10-04-2020 (bold/and underline for emphasis) he handed over sealed parcel of narcotic to Muhammad Aslam, ASI (P.W.5) for onward transmission to the office of chemical analysis. On the contrary, Muhammad Aslam, complainant (P.W.5) stated that on 16-04-2020 (bold and underline for emphasis) Moharrar Malkhana handed over to him sealed parcel of sample which he deposited in the office of Punjab Forensic Science Agency, Lahore intact on the same day. More so, according to the Punjab Forensic Science Agency, Lahore (Ex.PE). the sample so sent for chemical analysis was received in the said office on 16-04-2020.
Things do not stop here, Ghazanfar Abbas, HC during his cross examination further admitted that he had not mentioned in his statement (Ex.DA) that he handed over sealed parcel to Muhammad Aslam, ASI for its deposit to the Punjab Forensic Science Agency, Lahore. He further destructively stated that Muhammad Aslam, ASI had not recorded any rappat when he handed over to him sealed parcel. As stated above, according to Moharrar malkhana that on 10-04-2020 he handed over the sample parcel to Muhammad Aslam, ASI (P.W.5) for its onward transmission to the office of chemical analysis but Muhammad Aslam, ASI (P.W.5) stated otherwise that actually the said sample parcel was handed over to him by the moharrar malkhana on 16-04-2020 but Muhammad Aslam, ASI (P.W.5) had failed to explain that if according to moharrar malkhana the sample parcel was handed over to him on 10-04-2020 then where the sample parcel was remained from 10-04- 2020 to 16-04-2020. When confronted, the learned Deputy Prosecutor General present in the Court failed to clarify the stance taken by the said prosecution witness. It is settled by now 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 parcels said to contain charas becomes doubtful. Reliance is placed on Amjad Ali vs. The State (2012 SCMR 577; and Ikramullah vs. The State (2015 SCMR 1002) the State through Regional Director ANF vs. Imam Bakhsh and others (2018 SCMR 2039).
7. For what has been discussed above, we are inclined to hold that the prosecution evidence is highly deficient and the conviction recorded by the learned trial Court in the circumstances is not sustainable. We, thus, while allowing Crl. Appeal No. 577 of 2020, set aside the judgment dated 21- 11-2020 passed by the learned trial Court and acquit the appellant Muhammad Yousaf from the charge. He is in jail. He be released forthwith if not required in any other case. The case property i.e. charas shall be destroyed in accordance with law, as observed by the learned trial Court, in the judgment impugned.