SHAUKAT ALI RAKHSHANI, J. Appellants Tanveer and Ihsan have called in question the validity and legality of the judgment dated 22.02.2022 ("impugned judgment"), authored by learned Special Judge CNS Sessions Judge, Zhob ("Trial Court"), constituted under Control of Narcotic Substances Act, 1997, whereby in a case vide FIR No.02 of 2020 registered within the precincts of Police Station Manikhwa, Sherani for the offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997 ("Act of 1997), the appellants were convicted and sentenced to suffer R.I for life and to pay fine of Rs.100,000/- (rupees one hundred thousand) each or in default thereof to further undergo one (01) year's SI each with the premium of section 382-B of the Criminal Procedure Code, 1898 (The Code").
2. In brief, on 11.10.2020 Muhammad Rafique SI/SHO (PW-1), complainant got lodged the FIR ibid with the averments that on 11.10.2022, acting upon a spy information regarding inter-provincial narcotics smugglers, consisting upon three men and a woman, they intercepted a white 2.OD car and on search of the same, 09 packets weighing 10 kilograms charas and one packet weighing 800 grams opium were recovered from the secret cavities in the said vehicle, hence the appellants as well as other co-accused persons were arrested and the recovered narcotics along with 2.OD car bearing registration No.MR-AC-916 were taken into custody.
3. After necessary investigation, the appellants were sent up to the trial Court to face the deeds of their culpability, where on commencement of the trial, the appellants entered the plea of denial. In meanwhile, Muhammad Anwar and Jannat Bibi who were granted bail did not turn up, as such were declared proclaimed offenders. The prosecution in order to bring home the charge produced as many as five witnesses. The appellants were examined under section 342 The Code, who denied the allegations and professed innocence and got recorded their statement under section 340(2) of The Code, wherein appellant No.1 Tanveer deposed that he was resident of Mandi Baha-ud-Din, Punjab and he had come to Quetta to offer fateha of maternal cousin of his wife and that on the date of occurrence he was returning home in a 2.OD car and at Manikhwa FC check-post, the driver of the vehicle went to make entry, but did not return; after a while, the FC officials came there, blind fold, arrested them and let free the driver of the vehicle. Appellant No.2 Ihsan in his statement recorded under section 340(2), Cr.P.C., stated that he was working as a crate maker in Quetta and on account of ailment of his father, he was travelling towards Punjab and reiterated the statement of appellant No.1. After culmination of the trial, the appellants were found guilty as such were convicted and sentenced by the Trial Court in the terms mentioned in para supra.
4. Heard. Record sussed out, which reveals that on 11.10.2020 Muhammad Rafique SI (PW-1) on a tip of intercepted a 2.OD car bearing registration No.MR-AC-916, wherein appellant Tanveer on the driver seat, proclaimed offender Jannat Bibi on the adjacent seat, whereas appellant Muhammad Ihsan and proclaimed offender Anwar were found seated at rear. According to him, while searching the car, from the secret cavities of the doors 10 kgs of charas and 800 grams of opium were recovered, whereof 10 kgs charas were put in the parcel No.1 and 800 grams opium in Parcel No.2 and that from the personal search of the appellants and proclaimed offenders mobile phones and CNICs were recovered, whereafter, murasila (Ex.P/1-A) was sent for registration of the FIR.
During his cross-examination, he gave the details of the recovery from each door and making of the parcels, however did not utter a single word in his examination-in-chief about extraction of any sample, arrival of the Investigating Officer ("IO") Ghulam Ali SI (PW-5) and handing over him parcels Nos.1 and 2. Abdul Halim Constable (PW-2) is recovery witness, he reiterated what Seizing Officer (PW-1) had stated. He produced recovery memo of charas and opium as (Ex.P/2-A). He produced 10 kgs of charas, consisting of 9 pieces as Art.P/1 to Art.P/9 as well as produced the car secured through (Ex.P/2-B) and produced it as Art.P/14. He produced the recovery memo of cell phone and CNIC recovered from accused Tanveer (Ex.P/2-C) as Art.P/15 and Art.P/16, recovery memo of Q-Mobile recovered from accused Jannat Bibi (Ex.P/2-D) as Art .P/17, CNIC and driving license recovered from accused Muhammad Anwar and one driving license (Ex.P/2-E) as Art.P/18 to Art.P/20 and Q-Mobile recovered from accused Muhammad Ehsan (Ex.P/2-F) as Art.P/21. The charas was found to be in 9 pieces, but the Seizing Officer (PW-1) had not mentioned a word that the charas was recovered in pieces. During production and exhibition of the parcels before the trial Court, the charas and opium were found in one parcel, having the seal of police station thereon, which is again a surprise as according to the Seizing Officer (PW-1), two parcels bearing Nos.1 and 2 were prepared separately. Recovery witness (PW-2) also did not mention about arrival of the IO (PW-5) at the place of recovery nor did he state that the narcotics and car were handed over to him. The statement of the both the witnesses with regard to recovery of the contraband and preparation of the parcels have made the recovery cloudy.
5. As far as the safe custody and transmission is concerned, the testimony of Malkhana Incharge is crucial. Astonishingly, the Malkhana Incharge has not been produced to corroborate the testimony of the 10 Ghulam Ali SI (PW-5), regarding handing over the parcels to him. In absence of the deposition of the Malkhana incharge with whom allegedly the parcels were deposited, the safe custody and transmission of the contraband shall remain unsubstantiated, creating doubt in the case of the prosecution. Although Constable Abdul Halim (PW-2) was produced by the prosecution, who deposed that on 11.10.2020, he took parcel Nos.1 and 2 at 11:00 p.m and deposited the same on 12.10.2020 at 10:00 a.m in the Laboratory and went to Quetta on 18.10.2020 and brought back the FSL report along with parcels on 19.10.2020, but he did not state that from whom he received the parcels and in return, to whom he handed over back the same, which makes custody and transmission of the recovered narcotics highly doubtful.
6. Irresistibly, we are of the view that the prosecution has failed to prove the recovery and safe custody and transmission from place of recovery to Malkhana and onward transmission to Federal Narcotics Testing Laboratory Balochistan, Quetta ("FNTL") as their statements are found by us to be highly doubtful, offending the dicta drawn in the cases of Qaiser Javed Khan v. The State (PLD 2020 SC 57) and 'Kamran Shah and others v. The State' (2019 SCMR 1217).
Thus, the conclusion drawn by the learned trial judge are irrational and contra to the evidence, which merits to be set at naught.
7. So be it, the prosecution has also failed to prove the factum that the passengers seated adjacent or at rear seats had any knowledge of the narcotics, thus they otherwise are absolved from the indictment. In this regard, we are guided by the dictum expounded in the cases of Tayya z v. The State (2022 MLD 1452), 'Rehmatullah v. The State' (2011 YLR 2477) and 'Muhammad Imran v. The State' (2015 PCr.LJ 45).
8. For the forgoing reasons, the appeal is allowed, and in consequence thereof the impugned judgment dated 22.02.2022 passed by the trial Court is set aside and appellants Tanveer son of Muhammad and Ihsan son of Basheer Ahmed are acquitted of the charge.
The appellants be released forthwith, if not incarcerated in any other case.