IQBAL AHMED KASI, J. This appeal is directed against the judgment dated 26th December, 2022 ('the impugned judgment'), passed by the District and Sessions Judge/Special Judge Control of Narcotics Substances, Dera Bugti at Sui ('the trial Court'), whereby appellant Sadam Hussain son of Haji Mahbat Khan, was convicted and sentenced under Section 9(b) of the Control of Narcotic Substances Act, 1997 ('the Act of 1997') to suffer imprisonment for ten (10) months R.I and to pay an amount of Rs.5,000/- (rupees five thousand only) as fine and in default, to further undergo S.I for ten (10) days, with benefit of Section 382-B, Cr. P. C.
2. Brief facts disclosed from the report of Complainant Muhammad Azam SI/SHO (Ex-P/1-A) are that on 11.08.2022 at about 11:30 p.m., he along with other Police Officials, namely, ASI Abdul Rahim, Constables, Muhammad Bakhsh, Nigha Hussain and Driver Muhammad Afzal were on Halqa- Gasht, and when reached at Shahzain Petrol Pump, at about 08:30 intercepted a motorcycle rider coming from Tehsil Bazar, who disclosed his name as Saddam Hussain son of Haji Mahbat Khan.
During his personal search, one shopper containing 150 grams baked charas was recovered from his right side pocket. Consequently, the FIR was registered against him.
3. After usual investigation challan was submitted before the Court and the trial was commenced.
4. On 28th September, 2022, a formal charge was tramed and read over to the appellant, to which he pleaded not guilty and claimed trial.
5. To prove the accusation against the appellant, prosecution examined 04 witnesses.
PW-1, S.I/SHO Muhammad Azam Gishkori, produced fard-e-Bayan and as Ex-P/1 -A.
PW-2, Constable Muhammad Bakhsh, who is the witness of alleged charas recovery memo and exhibited recovery memo as Ex-P/2-A and recovery of Motorcycle Honda, CD-70 as Ex-P/2- B also produced site inspection memo as Ex-P/2-C.
PW-3 HC Niaz Ali was posted as Muharrir Police Station and he produced alleged recovery of charas in Malkhana.
PW-4 ASI Abdul Rahim is the Investigating Officer in the case, he produced FIR, site plan, register No.19, FSL report and challan, which were exhibited as Ex-P/4-A to Ex-P/4-G.
6. On completion of prosecution evidence, the accused was examined under section 342, Cr.P.C, wherein, he professed his innocence and denied allegation levelled against him. The appellant did not record his statement on oath, nor lay any witness in his defence.
7. On conclusion of trial, the trial Court convicted and sentenced the appellant, vide impugned judgment, hence this appeal.
8. It may not be out of place to mention here that on 23.02.2023, despite repeated calls, counsel for the appellant called absent. Since, short question of sentence was involved in the matter, therefore, the learned AAG was heard and the matter was reserved for writing of the judgment.
9. It is contended by the appellant in the appeal that the prosecution has badly failed to prove charge against the appellant beyond any reasonable doubt; that there is a delay of about 3 hours for registration of FIR and there is also delay of about more than 20 days for sending the alleged sample to the chemical examiner, therefore, tempering with the same cannot be ruled out. Finally he prayed for setting aside the impugned judgment and his acquittal- of the charge.
10. On the other hand learned APG strongly opposed the appeal and contended that there is no towards the prosecution witnesses and defended the impugned judgment.
11. The record reveals that the occurrence took place on 11.08.2022 and after unexplained delay of 03 hours, FIR was lodged, despite the fact that the Police Station is situated at only 03 km from the place of alleged occurrence. This delay rises on the prove qua veracity of the case and signal towards consultation and connection and endorsement and procurement on the part of prosecution in this regard.
12. We have also noticed that it is the case of prosecution that sample were transmitted to the office of Federal Narcotics Testing Laboratory, Balochistan, Quetta, but safe custody and transmission in this regard could not be proved by the prosecution. According to FNTL report (Ex- P/4-F) the sample of baked charas parcel was received on 18.09.2022 through Constable C-524, Abdul Qadeer with the delay of about one month and three days and such delay has not been explained. As per rule 4(2) of the Control of Narcotics Substances (Government Analysis) Rules, 2001, this exercise was required to be completed within 72 hours of the recovery and if this purpose, even there is no plausible explanation brought on record by the prosecution as to why such inordinate delay was caused in the completion of this exercise by the Investigating Officer, this is vital to the prosecution case. In this regard reference can be made to the case of Muhammad Aslam v. The State reported in (2011 SCMR 820).
13. Apart from above, the prosecution also failed to examine Constable Abdul Qadeer who took the sample to the Chemical Examiner, so that he could have been cross-examined on the point that in whose custody the sealed parcel of the sample of charas were laying C about one month and three days, which makes the case of prosecution doubtful and doubtful the link of the chain of custody the prosecution and the benefit of the same shall go to the accused in this regard.
Reliance is placed in case of Mst. Razya Sultana and others v. The State (2019 SCMR 1300).
In view of above, we have reached to a conclusion that the prosecution in the instant case could not prove prompt registration of FIR, safe custody and transmission of the respective sample to Government analysis, thus, the prosecution has failed to prove its case against the appellant, resultantly, instant appeal is allowed and conviction and sentenced recorded against the appellant through impugned judgment dated 26th December, 2022, by District and Sessions Judge/Special Judge Control of Narcotic Substances, Dera Bugti at Sui, in case arising FIR No.29/2022 dated 11.08.2022 registered under section 9(b) of the Control Narcotic Substances Act, 1997, at Police Station City, Sui is hereby set-aside. The appellant is acquitted of the Charge. He shall be released forthwith if not required in any other case.