2022 PLP 2105 (SCMR)

SARDAR TARIQ MASOOD, J.

Appellant Mir Wait faced trial in case FIR No. 69 dated 12.07.2013 registered under section 9(c) of the Control of Narcotic Substances Act, 1997 ('the Act') and 14-F at Police Station Shaghore, District Chitral. After a full-fledged trial, the trial court vide judgment 19.07.2014 convicted the appellant under section 9(c) of the Act and sentenced him to imprisonment for life with fine of Rs.20,000/- and in default of payment of fine to further undergo two months simple imprisonment. Benefit of section 382-B, Code of Criminal Procedure, 1898 was also extended to him. Aggrieved thereof, petitioner filed appeal before the Lahore High Court, Lahore which was dismissed vide impugned judgment dated 15.06.2021. Thereafter, he filed petition through jail before this Court wherein leave was granted on 07.04.2022. Hence, the instant appeal.

2. We have heard the learned counsel for the appellant as well as the learned Additional Advocate General, KPK and perused the available record with their able assistance and observed that recovery was affected on 12.07.2013 whereas the sample parcels were delivered to the office of Chemical Examiner on 18.07.2013. The whole record is silent as to in whose custody the sample parcels remained from 12.07.2013 to 18.07.2013 because the Moharrar, Malkhana was not produced who could claim that he had received the samples parcels and kept the same in the Malkhana which remained intact. Non-production of Moharrar clearly indicates that the safe custody of the sample parcels is not established by the prosecution. Likewise, the report of Chemical Examiner indicates that the parcels were received there on 18.07.20 l3 through FC No.1191 but even the said constable was never produced during the trial to establish the intact transmission of the sample parcel to the concerned laboratory. The learned Additional Advocate General, KPK also conceded that neither safe custody nor the safe transmission was established by the prosecution side. It is, therefore, quite clear that safe custody of the recovered substance and their safe transmission from the local police station to the office of the Chemical Examiner have not been established by the prosecution before the trial court through cogent and independent evidence. It has already been held by this Court in the cases of Amjad Ali v. The State (2012 SCMR 577), Ikramullah and others v. The State (2015 SCMR 1002), Taimoor Khan and another v. The State and another (2016 SCMR 621), The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039) and Khair-ul-Bashar v. The State (2019 SCMR 930) that in a case containing the above mentioned defect on the part of the prosecution, it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond the shadow doubt.

3. For the foregoing reasons, this appeal is ALLOWED. The conviction and sentence of the appellant Mir Waiz recorded and upheld by the courts below in the instant case are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He be released from the jail forthwith if not required to be detained in connection with any other case. MWA/M-62/SC Appeal allowed.