2019 PLP 1217 (SCMR)

ASIF SAEED KHAN KHOSA, C.J.

Criminal Miscellaneous Application No. 324 of 2013 This miscellaneous application is allowed in the terms prayed for therein. Disposed of. Criminal Appeal No. 23-P of 2016

2. According to the prosecution the present appellants namely Kamran Shah, Mohib Gul and Muhammad Naseer were travelling in a bus when at about 12.00 Noon on 15.03.2009 the said vehicle was intercepted by a police party and upon a search of that vehicle charas weighing 20 kilograms in the form of 20 slabs was recovered from some secret cavities of that vehicle. At the relevant time the said bus was being driven by Saeed Ahmed co-convict who has already been convicted and sentenced to imprisonment for life and to pay fine. With these allegations the appellants and their co-accused were booked in case FIR No. 168 registered at Police Station Jungle Khel, District Kohat on the same day in respect of an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 and after a regular trial the appellants were convicted by the trial court for the said offence and were sentenced to imprisonment for life each and to pay fine. The appellants challenged their convictions and sentences before the High Court through a joint appeal which was dismissed by the High Court and the convictions and sentences of the appellants recorded by the trial court were upheld and maintained. Hence, the present appeal by leave of this Court granted on 29.09.2016.

3. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise.

4. It is not disputed that the narcotic substance recovered in this case had been recovered from some secret cavities of a vehicle in which the present appellants were travelling at the relevant time as passengers and the said vehicle was being driven by Saeed Ahmed co-convict. It was, thus, incumbent upon the prosecution - to establish conscious possession of the contraband substance on the part of the present appellants but no evidence worth its name had been brought on the record in that respect. The record of the case shows that safe custody of the recovered substance at the local Police Station had not been established by the prosecution during the trial. Muhammad Afzal, Moharrir (PW3) had been produced by the prosecution before the trial court but he had said nothing about receipt of the case-property or its safe custody by him. Even safe transmission of the samples of the recovered substance from the local Police Station to the office of the Chemical Examiner had not been proved by the prosecution. The record shows that the samples of the recovered substance had been delivered at the office of the Chemical Examiner by FC-51 but the said Constable had not been produced by the prosecution before the trial court. It has already been declared by this Court in the case The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039) that in a case where safe custody of the recovered substance or safe transmission of the samples of the recovered substance is not established by the prosecution there it cannot be held that the prosecution had succeeded in establishing its case against an accused person.

5. For what has been discussed above this appeal is allowed, the convictions and sentences of the appellants recorded and upheld by the courts below are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required to be detained in connection with any other case. Criminal Petition No. 192 of 2013

6. It is not disputed that so far the name of the petitioner is not entered in the relevant Registration Book as owner of the vehicle in issue. In this view of the matter instead of pressing this petition the learned counsel for the petitioner wishes to withdraw the same so as to advise the petitioner to establish his ownership of the relevant vehicle either before a civil court or before the Motor Registration Authority in the first instance before launching a fresh challenge against confiscation of the relevant vehicle. This petition is, therefore, disposed of as having been withdrawn. MWA/K-5/SC Order accordingly.