SHAUKAT ALI RAKHSHANI, J. Appellant Jaffar Mehmood has assailed the judgment dated 28th September, 2022 ("impugned judgment") authored by learned Additional Sessions Judge-CNS, Kuchlak ("Trial Court"), whereby he was convicted under Section 9 (c) of Control of Narcotic Substances Act, 1997 ("Act of 1997"). and sentenced to suffer life imprisonment R.I with fine of Rs.100,000I- (rupees one hundred thousand) and in default of payment of tine to further undergo three months S I, but with the premium of Section 382-B of Cr.P.C,, emanting from a case vide FIR No.10/2022 (Ex.P/5-A) registered with police station new Kuchlak lodged by complainant SI Zamin Hussain Shah (PW-I) against the appellant for possessing 24 kgs of charas recovered from a bag held by the appellant in his lap, while travelling in a bus.
2. Crime report ibid was lodged on the strength of a murasila (Ex.P/l-A) with the allegations that on 04.02.2022 SI Zamin Hussain Shah complainant (PW-1) along with police contingent were on patrolling duty, whereof on a tip off, regarding smuggling of narcotics in a bus a blockade at Quetta Chaman Road near police station new Kuchlak was held, where at about 03:45 pm, a bus was intercepted, which was searched; a brown bag was recovered from the lap of the appellant, containing 24 kgs of baked charas wrapped in white plastic.
After necessary investigation, the appellant was sent up to the Trial Court to face deeds of his culpability, where on commencement of the trial, the appellant entered the plea of denial, thus, The prosecution in order to bring home the charge, produced as many as five witnesses, and after close of the prosecution side, the appellant refuted the allegations so brought as envisaged under section 342 of Cr.P.C., whereafter, the appellant neither stepped into the witness box to depose on oath nor produced any evidence in his defence, hence on conclusion of the trial, the appellant was convicted and sentenced in the terms mentioned in para supra.
3. Mr. Muhammad Hassan Bugti, learned counsel for the appellant inter alia contended that the prosecution has not only failed to prove the recovery, but has also remained unsuccessful to establish the safe custody and transmission of the narcotics. He also submitted that there are material contradictions in the prosecution witnesses which has made the case highly doubt full but the learned trial court, has failed to appreciate this aspect of the case, henceforth prayed for acquittal of the appellant.
Conversely, Abdul Mateen learned DPG rebutted the contention of learned counsel for the appellant and urged that the prosecution has proved the case to the hilt, including the safe custody and transmission and as such the trial court, while appreciating the evidence has rightly held the appellant guilty of the charge. He denied that there are material contradictions which has made the case doubtful, thus requested for dismissal of the appeal.
4. Heard. Record vetted.
5. The prosecution to prove the recovery produced SI Zamin Hussain Shah complainant (PW-1), who reiterated what he had mentioned in his murasila (Ex. P/1-A). According to him, on 04.02.2022, on a tip off at check-point, apprehended the appellant holding a bag in his lap, whereupon 20 packets of baked charas, each containing 1200 grams, total 24 kgs were recovered, whereof 10 grams from each packet were separated for chemical analysis and sealed in parcel No.1 to 20, whereas the remaining 23.800 kgs were sealed in parcel No. 1A- to 20-A. Recovery witness Gul Muhammad ASI (PW-4) deposed in similar lines as deposed by Zamin Hussain Shah (PW-1). He produced recovery memo. of parcels No.1 to 20 as (Ex.P/4-A) and charas and brown bag as Art. P-1 to Art.P-61.
6. The story of the prosecution is highly improbable, which does not appeal to a prudent mind that as to why the appellant would wait for the police to come and arrest him with the narcotics, when he had enough time to push away the narcotics towards the front seat or at the back to save himself, rather to be caught red-handedly. As the packets of charas were not recovered from his physical possession, thus we believe that the prosecution has failed to prove the exclusive possession of the narcos from the appellant. In this regard, our view finds support from the dicta expounded in the cases of 'Fayya z v. The State' (2022 MLD 1452) and 'Rehmatullah v. The State'
7. As far as safe custody and transmission of the narcotics from the check-point, which is the place of recovery and its onward transmission to the Federal Narcotics Testing Laboratory Balochistan, Quetta ("FNTL, Quetta") is concerned, we have noted several infirmities and inconsistencies, which have persuaded us to believe that the prosecution has miserably failed to prove the safe custody and transmission through tangible and confidence inspiring evidence, which makes the prosecution story doubtful. Record further reflects that allegedly, the recovery was made on 04.02.2022, but the samples of the contraband were received in the office of FNTL, Quetta on 07.02.2022, whereof the prosecution failed to offer any explanation, making the recovery and FSL reports cloudy. In this regard, our view finds support from the cases of `State v. Imam Balohsh (2018 SCMR 2039) and 'Khairul Bashar v. Stare' (2019 SCMR 930).
8. For the forgoing reasons, the appeal is allowed, and in consequence thereof the impugned judgment dated 28.09.2022 passed by the Trial Court is set aside and appellant Jaffar Mehmood son of Arshad Mehmood is acquitted of the charge.
The appellant serving sentence be set free, if not incarcerated in any other case.