2022 PLP 379 (MLD)

ABDUL HAMEED BALOCH, J.

This Criminal appeal is directed against the judgment dated 30th November, 2020 (impugned judgment) passed by Special Judge Control of Narcotics, Substances/Sessions Judge, Sariab Division (trial court), whereby the appellant was convicted under Section 9(c) Control of Narcotics Substances Act, 1997 (the Act) and sentenced to suffer rigorous imprisonment for a period or live (05) years with fine of Rs.10,000/- (Rupees ten thousand), and in default thereof to further undergo one month simple imprisonment with benefit of Section 382-B, Cr.P.C.

2. Precise facts of the case were that on 24th July, 2020 the complainant Sikandar Hayat SI/SHO lodged FIR No. 73 of 2020, with Police Station New Sariab Quetta, under Section 9(c) Control of Narcotic Substances Act, 1997 (CNSA, 1997), on recovery of six slabs of charas total weighing three kilogram from personal possession of the appellant while he was standing in a suspicious condition at Mastung Road near Al-Saif Hotel.

3. After submission of challan and full dressed trial the learned trial court convicted the appellant in the manner as mentioned in para-1 above, hence this appeal.

4. Heard and perused the record. The prosecution in order to substantiate its case produced four witnesses. On written report of Sikandar Hayat SI/SHO, Ex:P/3-A, FIR Ex: P/3-B was registered, wherein he stated that he along with police party was on routine patrolling. When they reached at Mastung Road near Al-Saif Hotel found a person in suspicious condition, who was apprehended and on personal search recovered six packets, each consist of 500/500 grams, total weighing 3-kilograms. The investigation of the case was handed over to PW-4 Ghulam Raza SI, who produced FSL, report Ex: P/4-B. PW-1 Bismillah Constable is recovery witness. He in his deposition before the court stated that on 27th July, 2020 he along with Sikandar Hayat SI were on patrolling, during which they arrested the accused and recovered contraband material from his personal possession. The witness in cross-examination stated that Fard-e-Biyan was prepared in the light of vehicle and torch. PW-2 Muhammad Afzal ASI stated that on 27th July, 2020 the investigating officer (PW-4) handed over the sample for analysis and remaining Hashish to him. PW-3 Sikandar Hayat SI is complainant of the case. He stated that on 26th July, 2020 he along with police personnel was on patrolling of the area during which they arrested the appellant and recovered 3 kilogram contraband from his possession. The witness in cross-examination stated that in the light of bulb of hotel he prepared the documents. PW-4 Ghulam Raza SI is the Investigating Officer, who produced FSL report Ex: P/4-B. Ex: P/4-B depicts that sample of alleged contraband received through Constable Faizan Mehmood. The prosecution was bound to establish safe custody of the recovered substance that where the alleged material was kept, and samples taken from the recovered substance were safely transmitted to the office of Chemical Examiner. As per Ex: P/4-B the alleged sample of contraband received by hand of Constable Faizan Mehmood. The statement of said witness was not recorded by the prosecution. The prosecution has failed to prove the chain. It was held by Honorable Supreme Court of Pakistan in case Mst. Sakina Ramzan v. The State. bearing Criminal Appeal No.D-98/2016 (approved for reporting), decided on 6th January, 2021 as under: "The chain of custody which includes safe custody and safe transmission of the narcotic drug begins with seizure of she narcotic drug by the law enforcement officer, followed by separation of the representative samples of the seized narcotic drug, storage of the representative samples and the narcotic drug with the law enforcement agency and the subsequent dispatch of the representative samples of the narcotic drug to the office of the Chemical Examiner or Government Analyst for examination and testing. This chain of custody must be transparents, uncompromised, recorded, safe, secure and unbroken. The chain of custody assumes critical importance under CNSA because; the Report of the Chemical Examiner can be the sole basis of conviction of the accused. Therefore, it is important to ensure that the integrity of the chain of custody was intact and the actually seized narcotic drug or its representative samples have reached the office of the Chemical Examiner or Government Analyst for testing and examination. As corollary any break or gap in the chain of custody i.e., in the safe custody or safe transmission, of the narcotic drug or its representative sample renders the Report of the Chemical Examiner unsafe and unreliable to support conviction. The prosecution, before placing reliance on the Report of the Chemical Examiner or the Government Analyst, must first establish that the chain of custody is safe, secure and unbroken. In case the prosecution fails to do so, the Report of the Chemical Examiner or the Government Analyst loses its reliability."

5. Now adverting .to the contradictions in the statements of prosecution witnesses which could not be lightly ignored. For disbelieving statement of a witness it was not necessary that there should be numerous infirmities. If there was one who would impeach the credibility of witness then the statement of witness lost credibility. The record reveals that the FIR was registered on 24th July, 2020, wherein the PW-1 stated that the appellant was searched on 27th July, 2020 and Fard-e-Biyan was prepared in the light of vehicle and torch. While PW-2 stated that the alleged contraband material was handed over to him on 27th July, 2020, whereas PW-3 the complainant stated that the accused was arrested on 26th July, 2020 and documents were prepared in the light of bulb of hotel. The Honorable Supreme Court in case Minhaj Khan v. The State 2019 SCMR 326 held: "

8. We have heard the learned counsel for the parties and with their assistance examined the record. The petitioner's conviction primarily rests on the testimonies of Police Constable Yasir Ali (PW-1) and Sub-Inspector and complainant Abid (PW-2). Both these witnesses stated that when they were deployed at Police Post Station they, in a private Honda car, drove to the place of occurrence where they saw in the petitioner's right hand a blue shopping bag which after it was searched had 1430 grams of suspected narcotic substance, which the chemical examiner's report states to be charas. Recovery memorandums were prepared and PW-1 was a witness to these recovery memorandum (Exhibits PA and PB) and the other witness to them was Constable Jehanzeb Khan, but the prosecution did not produce him as a witness. PW 1 stated that the place of occurrence, that is the place where the petitioner was apprehended and arrested, "was at a distance of about 2/3 kilometers towards west from police post" but PW-2 stated that "the place of occurrence is at a distance of 1 kilometer from the police post". The discrepancy in the distance becomes material when both these witnesses were shown to be performing duties in the area. PW-1 and PW-2 stated that in addition to them there was Constable Jehanzeb Khan and Constable Shoaib Afzal in the said car, but neither remembered who was sitting in the front seat next to the driving seat whilst remembering other minute details such as noting, that the petitioner was holding the blue shopping bag in his right hand. PW-1 did not know the owner of the car and PW-2 stated that he, "had the private car from someone on the basis of curtsy" [sic.] but did not disclose the name of the owner of the vehicle. The petitioner had throughout maintained that he was roped into a false case because he and his wife ran 'Muhammad Ali Public School' and an influential of the area who ran another school, 'Al-Meenar Public School', wanted to have the petitioner's school closed down as the petitioner and his wife's school competed with them. Both these witnesses professed complete ignorance about the schools, which is surprising considering they were serving in the area. Another significant contradiction was that whilst PW-1 in his cross-examination stated that upon seeing the policemen the, "accused had not run. I and Shoaib Constable had over powered the accused" PW-2 stated that when the, "accused saw us, he tried to run away but he was over powered". An unusual facet of this case is that having apprehended and arrested the petitioner the PW-2 did not take him to police station Hazro to register the FIR and instead deputed Constable Jehanzeb Khan to take his written complaint, which he wrote out when the petitioner was apprehended, to Police Station Hazro Constable Jehanzeb Khan, "left place of occurrence on feet" [sic] to the police station which was at a distance of 15/16 kilometers and the FIR was registered on the basis of said written complaint. Constable Jehanzeb Khan was not produced as a prosecution witness. Since Police Station Hazro was at a distance of 15/16 kilometers from the place of occurrence it does not stand to reason that Constable Jehanzeb Khan was directed to go there on foot with the written complaint, whilst PW-2 (the complainant) himself could easily have driven there in the said car. Constable Jehanzeb Khan with the written complaint arrived at Police Station Hazro at 3:30 p.m. while PW-2 reached there much later, at 5:00 p.m. No explanation was offered by PW-2 what he was doing in the intervening period. The manner in which this case was split up is inexplicable; Constable Jehanzeb Khan was sent off with the written complaint to the police station on foot while the complainant with accused and the confiscated substance went there by car. Constable Jehanzeb Khan travelling by foot arrived at the police station an hour and a half earlier than the complainant PW-2." In view of what has been discussed above, I accept the appeal. The impugned judgment dated 30th November, 2020, passed by Special Judge Control of Narcotic Substances/Sessions Judge, Sariab Division pursuant to FIR No. 73 of 2020, Police Station New Sariab Quetta is set aside. The appellant/convict Muhammad Younas son of Akhtar Muhammad is acquitted of the charge under section 9(c) CNS Act, 1997. He is in custody be released forthwith if not required in any other case. JK/52/Bal Appeal accepted.