SARDAR TARIQ MASOOD, J.---Through these appeals by leave of the Court, the appellants Said Wazir (Criminal Appeal No.197/2022) and Sahar Khan (Criminal Appeal No.198/2022) have impugned the judgment dated 19.06.2019 of the Peshawar High Court, Peshawar, whereby appeal filed by them was dismissed and their conviction and sentence awarded by-the trial Court under section 9 (c) of the Control of Narcotic Substances Act, 1997 (`Act, 1997'), was maintained.
2 Precisely, facts of the case are that the appellants faced trial in case FIR No. 853/2016 registered on 09.06.2016 at Police Station Chamkani, Peshawar, under sections 9(c) and 15 of the Act for recovery of 30 kilograms of Charas, 06 kilograms of Opium and 03 kilograms of Heroin. On conclusion of trial, they were convicted under section 9(c) of the Act and sentenced to life imprisonment with a fine of Rs.1,00,000/- or in default thereof to further undergo S.I. for six months, each. Benefit of section 382-B of the Code of Criminal Procedure, 1898 was also extended to them.
Separate appeals filed by them before the Peshawar High Court, Peshawar were dismissed. Hence, these appeals by leave of the Court granted on 25.03.2022 to re-appraise the evidence.
3. Heard and perused the record. It has been observed by us that recovery was effected on 09.06.2016 whereas sample parcels were received in the office of chemical examiner on 13.06.2016 without any plausible explanation as to where remain these sample parcels from 09.06.2016 to 13.06.2016. The safe custody and safe transmission of the sealed sample parcels has also not been established by the prosecution as Moharrar, who kept the sample parcel in the Malkhana and the concerned Constable (FC No. 1374), who delivered the sample parcel to the office of Forensic Science Laboratory, were not produced by the prosecution. Even the prosecution failed to prove the ownership of the vehicle. This court in the cases of Qaiser Khan v. The State through Advocate General, Khyber Pakhtunkhwa, Peshawar (2021 SCMR 363), Msr. Razia Sultana v. The State and another (2019 SCMR 1300), The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), Ikramullah and others v. The State (2015 SCMR 1002) and Amjad Ali v. The State (2012 SCMR 577) has held that in a case containing the above mentioned defect on the part of the prosecution, it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond any reasonable doubt.
4. For the forgoing, these appeals are allowed. The impugned judgment is set aside and the appellants Said Wazir (Criminal Appeal No. 197/2022) and Sahar Khan (Criminal Appeal No. 198/2022), while giving him the benefit of doubt, are acquitted of the charge in the instant case.
They be released from jail forthwith, if not required to be detained in connection with any other case.