Raja Ghazanfar Ali Khan, J. This criminal appeal is directed against judgment dated 21.03.2024 passed by learned Additional Sessions Judge, Bahawalnagar whereby he after holding trial in case FIR No.264 dated 11.04.2023 registered under section 9(3)(1) 7 of CNSA, 1997 at Police Station City B- Division, Bahawalnagar convicted and sentenced Mst.Sakina Bibi (appellant) as under:- Under Section 9(1)(3)(c) CNSA, 1997: Ten years R.I with fine of Rs.1,00,000/- and in default of payment of fine to further undergo six months S.I.
Under Section 9(1)(5)(e) CNSA, 1997: Fifteen years R.I with fine of Rs.5,00,000/- and in default of payment of fine to further undergo six months S.I.
Both the sentences were ordered to run concurrently. The benefit of Section 382-B of Cr.P.C was also extended in favour of the appellant.
2. Brief facts of the case as per First Information Report (Exh.PD) are that complainant Muhammad Adeel ASI (PW.4) along with his other police officials was present at Gaoshala Chowk in connection with patrolling duty where he received spy information that one lady who had a black colour bag besides one lady's handbag of black colour on her shoulder after alighting from bus at Bahawali Chowk was waiting for rickshaw. She had narcotics in her possession and if immediate raid was conducted, the narcotics could be recovered. The complainant Muhammad Adeel ASI (PW.4) along with his police companions reached Bahawali Chowk and on the pointing out of informer, apprehended the appellant through lady constable Aqsa Ashraf 355/LC (PW.3). On inquiry she disclosed her name as Sakina Bibi wife of Muhammad Javed resident of Kot Momen Tehsil Bhalwal, District Sargodha. On checking of the bag containing clothes, one towel of orange colour, 7 packets of opium wrapped in polyethene along with one lady stitched suit of green colour printed flowers with embroidery work were recovered. The opium was weighed and it was found to be 6154 grams.
Samples were collected from every packet of opium. The samples as well as the remaining opium were separately sealed and on all these sample parcels stamp bearing Alphabet M.A was affixed.
Similarly on checking of the black coloured handbag, one towel of yellow colour, three packets were recovered out of which two packets were wrapped in yellow colour tape and one packet in white coloured polyethene. Charas weighing total 2824 grams was recovered from all the three packets. From each packet of charas samples were separated, the sample parcels and the remaining bulk were separated into sealed parcels after affixing stamp having Alphabet M.A. All the parcels along with bag containing clothes, two towels and one lady suit were taken into police custody in presence of witnesses namely Muhammad Siddique ASI, Muhammad Khalid ASI, lady constable Aqsa Ashraf 355/LC (PW.3) through recovery memo (Exh.PA) and witnesses put their signatures on the said recovery memo.
3. On completion of investigation, a report under section 173 Cr.P.C was submitted in the court. The learned trial court formally charge sheeted the appellant on 06.09.2023, to which she pleaded not guilty and claimed trial. The prosecution in order to prove its case against the appellant produced five witnesses including Muhammad Adeel ASI (PW.4) who being complainant drafted complaint (Exh.PC) and also recovered opium and charas from the possession of the appellant, Aqsa Ashraf 355/LC (PW.3) who is recovery witness, whereas Muhammad Saleem SI (PW.5) investigated the case.
4. After the conclusion of prosecution evidence, the learned trial court also examined the appellant under Section 342, Cr.P.C. The appellant did not opt to make statement under Section 340(2) of Cr.P.C. however produced Muhammad Aslam as DW.1, Ghulam Hassan, DW-2 and Muhammad Javed as DW.3 in his defence evidence. On the conclusion of trial, the appellant was convicted and sentenced as afore-stated, hence, the instant criminal appeal.
5. We have heard learned counsel for the appellant as well as learned Deputy Prosecutor General Punjab and gone through the record with their able assistance.
6. The scrutiny of record reveals that the whole prosecution case is hinging upon the recovery of 2824 grams charas as well as 6154 grams opium. The prosecution in order to prove the said recovery of charas as well as opium produced lady constable Aqsa Ashraf 355/LC as PW.3 who also narrated the same facts given in the complaint (Exh.PC) as well as the FIR (Exh.PD). She is the attesting witness of recovery memo (Exh.PA). Similarly, the second witness produced by the prosecution in order to prove the recovery of charas and opium from the possession of the appellant is Muhammad Adeel ASI (PW.4) who also narrated the same facts given in complaint (Exh.PC) as well as in FIR (Exh.PD). He is also the complainant of this case. Muhammad Adeel (PW.4) in his examination-in-chief stated that he drafted the complaint (Exh.PC) and sent the same to police station through Muhammad Aslam constable 335/C for registration of FIR. He also deposed before the court in his examination-in-chief that when Muhammad Saleem SI/I.O (PW.5) reached the spot along with Muhammad Aslam 335/C he handed over to him the custody of accused, the sealed parcels of charas and opium, two towels, two bags and a lady's suit as well as the recovery memos. He also deposed that on his pointing out the investigating officer prepared unscaled site plan of the place of recovery (Exh.PE). Although both the witnesses of the recovery remained consistent and confidence inspiring so far as the narration of contents of complaint Exh.PC and FIR Exh.PD are concerned, yet if we scru tinize the statement of the investigating officer Muhammad Saleem SI who appeared as PW.5 he did not mention anywhere in his statement that when he handed over the case property to Moharrer of the police station for safe custody, any entry was made in Register No.XIX or not. Similarly, the Moharrer of the police station namely Shahid Imran 1110/HC (PW.2) did not utter a single word that any entry was made regarding keeping of the case property i.e. 20 sealed parcels i.e. 14 of opium and six of the charas along with black coloured purse, traveling bag of black colour, two towels as well as one lady's suit of green colour and a mobile phone in register No.XIX prior to keeping the same in Malkhana. Neither the investigating officer nor the Moharrer of the police station produced the attested copy of register No.XIX or attested copy of any road certificate before the court. Similarly neither the Moharrer Shahid Imran 1110/HC (PW.2) nor the investigating officer uttered a single word that any such entry was made in register No.XIX or in any Roznamcha about handing and taking over of the case property on 12.04.2023 for its transmission to Saddar Malkhana intact. Similarly, neither the Moharrer nor the investigating officer uttered any word about handing over of the sample parcels i.e. seven sealed parcels said to contain opium and three sealed parcels said to contain charas to Muhammad Saleem SI/I.O for their transmission to PFSA, Lahore intact. This non-mentioning of handing and taking over of the case property as well as sample parcels in relevant register has made the whole prosecution case doubtful so far as the chain of safe custody of the narcotics is concerned. Reliance in this regard is placed on case titled as "Jeehand vs. The State through Prosecutor General Baluchistan" in a Criminal Petition No.1187/2021 wherein the august Supreme Court of Pakistan has held as under:- "5. After hearing the learned counsel for the parties and perusal of the record, we have straightforward observed that the prosecution has failed to prove its case against the petitioner beyond the shadow of doubt for the following reasons: i) No documentary evidence whatsoever has been brought on record. Neither entry of Register No.XIX was tendered in evidence nor Road Certificate as contemplated by rule 22.70, Form 22.70 and Rule 22.72, Form 10.17 of Police Rules, 1934. So, this sole contour of the case creates dent in the case of the prosecution. This Court in the case of Asif Ali v. State (2024 SCMR 1408) observed as under: " Rule 22.70 of the Police Rules, 1934 ('Police Rules') mandates that Register No.XIX shall be maintained in Form 22.70 of the Police Rules in the police station wherein, with the exception of articles already included in Register No.XVI, every article placed in the store room (Malkhana) shall be entered and the removal of any such article shall also be noted in the appropriate column."
7. Now coming towards production of any road certificate before the Court, neither the Investigating Officer Muhammad Saleem SI (PW.5) nor Moharrer of the police station Shahid Imran 1110/HC (PW.2) or the complainant Muhammad Adeel ASI (PW.4) uttered a single word about road certificate got issued by the investigating officer from the DPO office at the time of transmission of sample parcels to office of PFSA. It is a well settled principle of criminal jurisprudence arising out of maxim "Communi observantia non est recedendum" that when law required a thing to be done in a particular manner, the same must be done accordingly and if the prescribed procedure was not followed, it would be presumed that the same had not been done in accordance with law.
Guidance can be sought from the case law reported as "Ammad Yousaf vs. The State and another" (PLD 2024 SC 273). The non-mentioning of any road certificate in statements as well as non-production of any such road certificate has made the prosecution case further dubious and doubtful.
8. We find it necessary to mention here that in this case the complaint (Exh.PC) has been abruptly concluded without mentioning the venue of its preparation, the time of its conclusion and no fact about the sending of the said complaint (Exh.PC) to the police station through Muhammad Aslam 335/C is mentioned. The non-mentioning of these particulars at the bottom of Exh.PC further makes the whole prosecution case dubious so far as any recovery of narcotics from the possession of the present appellant at Bahawali Chowk is concerned.
9. For what has been discussed above, we are of the considered view that the prosecution has failed to prove the guilt of the appellant beyond any shadow of doubt. It is settled by now that for earning acquittal, the accused is not obliged to establish a number of circumstances creating doubt but even a slightest circumstance is sufficient to extend him the benefit of doubt. Reliance in this regard can be placed on case titled as "Ahmed Ali and another vs. The State" (2023 SCMR 781). Consequently, while giving benefit of doubt in favour of Sakina Bibi (appellant) Criminal Appeal No.177-2024/BWP is allowed; her convictions and sentences are set-aside and she stands acquitted of the charges. She is in judicial custody; be released forthwith if not required to be detained in any other case.