MOHAMMAD IBRAHIM KHAN, J. Through this single judgment, this Court intends to decide the instant and the connected Criminal Appeal No. 524-P/2019 preferred by appellants Muhammad Saeed and Shahzad Khan respectively with the prayer of setting aside the impugned judgment dated 11.04.2019 and prayed for their acquittal of the charges levelled against them in case FIR No. 414 dated 08.05.2017 under section 9(c), CNSA registered at Police Station University Town, Peshawar. Since, both the criminal appeals arise out of the same impugned judgment dated 11.04.2019 of the learned Additional Sessions Judge-III/Judge Special Court, Peshawar hence, are decided together.
2. Brief facts as narrated in the murasila are that complainant Inspector Syed Naveed Jamal of Excise Department on 08.05.201, on receipt of spy information regarding smuggling of huge quantity of narcotics through motorcar bearing registration No. LZZ-4677, laid a barricade at Phase-3 Chowk Jamrud to Peshawar Road. On arrival of the said motorcar, it was stopped, the driver disclosed his name as Shahzad Khan whereas, the front seater as Muhammad Saeed. On its search, it led to the recovery of 50 packets chars each weighing 1000/1000 grams total weighing 50000 grams (50 KGs) from its secret cavities back of rear seat, as well as beneath the front and driver seats hence, the present FIR.
3. After completion of investigation, challan was submitted. Charge against the accused- respondents was framed on 19.03.2018 to which they pleaded not guilty and claimed trial.
Thereafter, the prosecution in order to substantiate charges against the appellants, examined PW-1 Aman Ullah SI, PW-2 Zain Uddin ASI, PW-3 Muhammad Azam SI/10, PW-4 Syed Naveed Jamal AETO and PW-5 Muhammad Asif OH thereafter, closed its evidence. Statements of each appellant were recorded under section 342, Cr.P.C., wherein, they negated the charges leveled against them and posed innocence. However, they recorded statements under, section 340(2), Cr.P.C. and also produced defence witnesses i.e. Muhammad Saleem as DW-2 and Abdul Raziq son of Khushal Khan as DW-3.
4. The learned trial court after hearing arguments, found the appellants guilty of the charges leveled against them, thereby they were convicted and sentenced as follows: Under section 9(c) Control of Narcotic Substances Act, 1997 for imprisonment for life with a fine of Rs. 2,00,000 (two lac) each and in default of fine to further undergo three months SI.
Benefit of section 382-B, Cr.P.C. was extended to both the appellants.
5. We have heard arguments of learned counsel for the appellants and learned Additional A.G. on behalf of the State and perused the record with their valuable assistance.
6. Learned counsel for appellants relied and referred to the dictums reported in 2021 SCMR 492 Zubair Khan v. The State, 2021 SCMR 363 Qaiser Khan v. The State, 2021 SCMR 451 Mst. Sakina Raman v. The State, 2020 YLR 311 Javed and 2 others v. The State, 2019 SCMR 608 Abdul Ghani and others v. The State 2019 SCMR 2004, Zahir Shah alias Shat v. The State and 2019 SCMR 1217 Kamran Shah and others v. The State and while ending up their submissions, learned counsel for accused-appellants prayed for the acquittal of the appellants from the charges levelled against them.
7. Inversely, the learned Additional A.G. on behalf of State vehemently rebutted the arguments advanced by learned counsel for the appellants and contended that the prosecution had fully established its case against appellants beyond reasonable doubt. He further went on to say that the prosecution witnesses are consistent regarding the mode and manner of the recovery, sending of samples to the FSL and positive result whereof. At the close of his arguments, he emphasis on maintaining the convictions of the appellants.
8. We are conscious of the fact that the learned trial court found both the appellants guilty of the charges levelled against them and passed their conviction believing the statements of the prosecution witnesses vide judgment dated 11.04.2019. However, the learned trial court has not taken into consideration the material available on file as according to the murasila and statement of Seizing Officer, he recovered 50 packets of chars weighing 50000/- grams (50 KGs) grams from the secret cavities of the vehicle in question but he has only mentioned weighment of two packets i.e. 1000/1000 whereas, failed to mention weighment of remaining 48 packets.
9. We have also observed that according to the Forensic Science Laboratory report (Ex.PZ) the samples were received there on 17.05.2017 whereas, according to the statement of Seizing Officer, the same were separated for analysis on the day of occurrence i.e. 08.05.2017 almost a delay of 08 days without any explanation. PW-2 Zain Uddin ASI, who is Mohrrar of the PS has also admitted during his cross-examination that he sent the samples on 16.05.2017 after a delay of about 08 days however, nothing for its sending late to the FSL has been put forward to be relied upon. Even no plausible explanation has been furnished by the Seizing Officer or by the I.O. to the effect that the samples remained in safe custody from the date of registration of the FIR till its receipt in the FSL therefore, safe custody of parcels of samples has not proved by the prosecution in the instant case, which is mandatory requirement of the law. The statements of Seizing Officer as well as Investigation Officer is silent regarding the safe custody of the samples.
10. It is also noted with great concern that the samples from the police station to FSL for its analysis has been handed over to Tahir FC but neither he has been cited as witness on complete challan nor he has been examined to support the version of prosecution regarding the safe transmission of the chars to the FSL. Thus, by not producing the martial witness by the prosecution, there exists no chain to prove the safe custody of the samples to the FSL. The missing chain create serious doubts in the authenticity and credibility, of the FSL report. It is held by the august Supreme Court of Pakistan in 2021 SCMR 363 Qaiser Khan v. The State through Advocate General Khyber Pakhtunkhwa which reads:
(a) Control of Narcotic Substances Act (XXV of 1997)---S. 9(c) of Narcotics Substances (Government Analysts) Rules, 2001, Rr. 4, 5 & 6---Possession of narcotics---Report of Government Analyst--Safe custody and transmission of samples of the narcotics from the police of the chemical examiner--Scope-if safe custody of narcotics and its transmission through safe hands were not the on the record, same could not be used against the accused--In the present case, evidence regarding safe transmission of alleged recovered narcotics to the police station and then onto the laboratory for chemical analysis was missing---accused was acquitted of the charge in such circumstances.
Similarly, in 2018 SCMR 2039, in Criminal Appeals No. 523, 524, 525 of 2017, 494 of 2017, 452 of 2017, 22 of 2018, 51 of 2017 and 94-Q of 2017 The State through Regional Director ANF v. Imam Bakhsh and others, the august Supreme Court held:
(a) Control of Narcotic Substances (Government Analysts) Rules, 2001---Rr. 5 & 6---Control of Narcotic Substances Act (XXV of 1997), S. 9---Possession of narcotics--Report of Government Analyst--Safe custody and transmission of samples of the alleged drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory---Chain of custody began with the recovery of the seized drug by the police and included the separation of the representative sample(s) of the seized drug and their dispatch to the Narcotics Testing Laboratory---Said chain of custody, was pivotal, as the entire construct of the Control of Narcotic Substances Act, 1997 and the Control of Narcotic Substances (Government Analysts) Rules, 2001 rested on the report of the Government analyst, which in turn rested on the process of sampling and its safe and secure custody and transmission to the laboratory--Representative samples of the alleged drug must be in safe custody and undergo safe transmission from the stage of recovery till it is received at the Narcotics Testing Laboratory---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, would cast doubts on the safe custody and safe transmission of the sample(s) and would impair and vitiate the conclusiveness and reliability of the report of the Government Analyst, thus, rendering it incapable of sustaining conviction.
11. Besides the above discrepancies, it is also of worth perusal that the Investigation Officer Mohammad Azam SI (PW-3) and complainant Syed Naveed Jamal Inspector (PW-4) are not consistent with regard to the arrival of investigation officer to the spot as the former (PW-3) admitted in his cross examination that he conducted investigation from 1600 hours till 1700 hours however, the complainant (PW-4) had admitted that the Investigation Officer arrived on the spot after 2230 hours.
12. The prosecution also did not establish case against appellant Muhammad Saeed as none of the witnesses had uttered a single word with regard to conscious knowledge of the appellant Muhammad Saeed in respect of the availability of contraband in the vehicle in question. It is the paramount duty of the prosecution to lead a trust worthy evidence to enable the court to believe that the accusations made against the accused are just, trust worthy and does not create even a single doubt to bring home the charges against him/them, and where there is a slightest creation of a reasonable doubt, the accused ought to be its beneficiary not as a matter of grace but surely as a matter of right.
13. In view of the above, there are reasonable doubts in the prosecution case against the appellants, so, we are unison to hold that the prosecution has been unable to stand on its own legs therefore, the evidence of the prosecution cannot be relied upon. Accordingly, we accept this and the connected appeal No. 524-P/2019, set-aside the impugned judgment of the conviction, sentencing the appellants as rendered by the learned trial Court vide order dated 11.04.2019. The appellants Muhammad Saeed and Shahzad Khan are acquitted of the charges leveled against them. They are in custody and be set free if not required in any other case.
14. These are the reasons of our short order announced in open Court on even date.