SYED ARSHAD ALI, J.---This criminal appeal filed by Norab Khan, convict/appellant, is directed against the judgment/order dated 17.02.2021 of learned Sessions Judge/Judge Special Court (CNSA), Kurram, whereby , the appellant was convicted under section 9 (D) CNSA and sentenced to five (05) years ' R.I with fine of Rs.500,000/- or in default of payment of fine to 01 year's S.I; with benefit of section 382-B, Cr.P.C.; in case registered against the accused-appellant in Police Station Upper Kurram, District Kurram, vide FIR No.178 dated 22.07.2020 under section 9-D, CNSA.
2. Brief facts as per murasila (Ex.PW1/3) are that on receiving spy information regarding the trafficking of huge quantity of narcotics from Tari Mangal to Parachinar , the police party had laid a barricade on the spot, meanwhile, a motorcar (Ghwagay) bearing Registration No.13- 3545/F ATA coming from Tani Mangal side was stopped for the purpose of checking. Search of the motorcar led to the recovery of 05 packets of charas Girga, each packet containing 1000 grams, total 5000 grams charas from beneath the driver seat. The complainant separated 10/10 grams of charas for the purpose of FSL. The accused disclosed his name as Norab Khan son of Haji Amal Khan.
The motorcar was taken into 'possession and the accused was arrested. The complainant drafted the murasila EX.PW1/3 and sent the same to the Polic e Station for registration of the case through Constable Jan Hussain, on the basis whereof the FIR Ex.PW3/1 was registered against the accused.
3. During trial, the prosecution examined as many as four (06) PWs. Statement of the accused was recorded under section 342, Cr.P.C, wherein, he neither wished to be examined on oath nor desired to produce evidence in his defence. Having heard learned counsel for the accused and learned DPP for the State, the learned Sessions Judge/ Judge Special Court (CNSA), Kurram, rendered the impugned judgme nt dated 17.02.2021, thereby , convicting the accused/appellant as mentioned above.
4. Arguments heard and record of the case was perused.
5. Learned counsel for the appellant contended that the appellant/convict is innocent and falsely implicated in the case; that impugned judgment of the learned trial Court below is illegal, against the law and facts as the prosecution case is full of doubts; that the evidence of the prosecution is contradictory and unbelievable; that nothing incriminating has been recovered from the personal possession of the accused/appellant; that there is delay in sending the samples to the FSL; that the learned trial Court in the absence of any trustworthy and confidence inspiring evidence has wrongly convicted the appellant on very flimsy grounds, therefore, the impugned judgment is not maintainable and thus is liable to be set aside. He requested for the acquittal of the appellant/convict.
6. Conversely , learned AAG appearing on behalf of the State contended that the prosecution has been successful in proving its charge against the accused/appellant beyond any reasonable doubt; that charge of the prosecution against the accused has been duly corroborated by the positive FSL report; that the appellant is drug peddler , therefore, he has rightly been held guilty by the learned trial Court; that the judgme nt of the learned trial Court is in accordance with law as the same has been rendered by giving the strong and cogent reasons and that there is no misreading or non-reading of the evidence in the impugned judgment. He requested for dismissal of the appeal.
7. Allegation against the appellant is that, 5000 grams of chars were recovered from the motorcar which was being driven by the appellant.
8. Jamil Hussain SHO/complainant was examined as PW-l. Amjad Hussain Constable was examined as PW-2, who is the marginal witness to the recovery memo Ex.PW1/1, Syed Mudasir Hussain/Moharrir was examined as PW-3, Mumtaz Khan ASI was examined as PW-4, who submitted complete challan, Mirdad Khan SI/Investigation Officer of the case was examined as PW-5 and Amjad Hussain Constable was examined as PW-6, who is the witness of pointation memo Ex.PW5/1.
9. Perusal of record shows that according to the FIR and statement of the comp lainant Jamil Hussain SHO, the murasila was sent to the Police Station through Constable Jan Hussain but the prosecution has not recorded his statement for the reason best known to them. Jamil Hussain SI/complainant (PW-1) in his examination-in-chief stated that from each A envelope 05 grams charas were separated for the purpose of FSL whereas perusal of murasila and FIR shows that 10/10 grams were separated from _ 05 envelopes which create serious doubt in the prosecution case. Investigation Officer/PW -5 in his cross-examination has confirmed that he has not de-sealed the parcels on the spot as the same were rightly sealed by the complainant. Moreover , there is overwriting on the time of occurrence in the FIR as well as in the murasila which fact was also admitted by PW-3/Moharrir of Police Station in his cross-examination. PW-3/Moharrir further confirmed in his cross-examination that when he received the case property , he made entry of the same in the FIR. Amjad Hussain/PW -2 in his cross-examination stated that they came back to the Police Station on the same day at about 18:00 hours wherea s Mirdad Khan SI/Investigation Officer (PW-5) in his cross-examination stated that after conducting the entire proceedings on the spot, he returned to the Police Station at 19:00 hours on the same day while Syed Mudasir Hussain/Moharrir PW-3 in his cross-examination stated that at about 18:00/18:30 hours the samples were brought by the 10 and thereafter he received the same:
10. Apart from the aforesaid contradiction s, the serious dent in the prosecution case is its failure to establish the safe custody of samples during its transportation to FSL for opinion. The occurrence had taken place on 22.07.2020 while as per statement of PW-3/Moharrir the samples were handed over to Bakht Gul HC for onward transmission to the FSL vide dispatch No.120/21 on 27.07.2020 whereas the samples were received in the Forensic Science Laboratory on 19.08.2020 with a considerable delay of 27 days. The prosecution could not offer any plausible explanation for such delay . The samples of contraband were allegedly taken to the FSL by Constable Bakht Gul but the said constable was not examined by the prosecution in Court to authenticate the delivery and safe transit of samples to the FSL. The record is silent about the safe custody of the contraband in the Police Station.
In order to bring home charge against an accused guilty under narcotics law, it is incumbent upon prosecution to prove the chain of safe custody of the samples of contraband and the case propert y right from the time of recovery till the delivery of the samples to the FSL. In case of any doubt in the safe custody of the sample during its transportation from the place of recovery till it reaches in the hands of experts, the same will vitiate the entire prosecution case. Reliance is placed on the case of Imam Bakhsh's case (2018 SCMR 2039 ), wherein it is held that:- "......safe custody and safe transmission of the alleged drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory are not satisfactorily established. The chain of custody begins with the recovery of the seized drug by the Police and includes the separation of the representative sample(s) of the seized drug and their dispatch to the Narcotics Testing Laborato ry. This chain of custody , is pivotal, as the entire construct of the Act and the Rules rests on the Report of the Government Analyst, which in turn rests on the process of sampling and its safe and secure custody and transmission to the laboratory . The prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. 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(s) and will impair and vitiate the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction. This Court has already held in Amjad Ali v. State (2012 SCMR 577) and Ikramullah v. State (2015 SCMR 1002 ) that where safe custody or safe transmission of the alleged drug is not established, the Report of the Government Analyst becomes doubtful and unreliable."
The law laid down in Imam Bakhsh's case was reaffirmed by the apex Court in "Zubair Khan v. The State" (2021 SCMR 492), "Mst. Sakina Ramzan v. The State" (2021 SCMR 451),"Mst. Razia Sultana v. The State and another" (2019 SCMR 1300 ) and "Zahir Shah alias Shat v. The State through Advocate General, Khyber Pakhtunkhwa" ( 2019 SCMR 2004 ).
11. From the above mentioned contradictions and shortcomings, I have reached at inescapable conclusion that the prosecution evidence is discrepant, contradictory and cannot be considered sufficient for basing conviction of the appellant
12. For what has been discussed above, I hold that the impugned judgment dated 17.02.2021 rendered by the learned Sessions Judge/Judge, Special Court (CNSA), Kurram, is suffering from misreading and non-reading of the evidence available on the record, therefore, the impugned judgment warrants interference. As such, this appeal is allowed and the appellant is acquitted of the charge. He be set free forthwith, if not required in any other case.
13. Above are the reasons of my short order of the even date.