2022 PLP 2149 (SCMR)

SARDAR TARIQ MASOOD, J.--Appellant Shah Zameen faced trial in case FIR No. 1065 dated 12.10.2013 registered under section 9(c) of the Control of Narcotic Substances Act, 1997 ('the Act') at Police Station Hayatabad, District Peshawar. After a full-fledged trial, the trial court vide judgment 27.10.2014 convicted the appellant under section 9(c) of the Act and sentenced him to imprisonment for life with fine of Rs.1,00,000/- and in default of payment of fine to further undergo six 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 Peshawar High Court, Peshawar which was dismissed vide impugned judgment dated 03.04.2017. Thereafter, appellant filed jail petition before this court wherein leave was granted on 17.03.2022, 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 along with the impugned judgment with their able assistance and without touching the other merits of the case, observed that although Moharrar appeared in the court and stated that he kept the sample parcels in the Malkhana but he did not mention that to whom he delivered the sample parcels for taking the same to the office of Chemical Examiner. It is also a circumstance that prosecution did not produce any witness who could have claimed that he had delivered the sample parcels to the concerned laboratory intact. The report of Chemical Examiner did not disclose the name of the person who had brought the said sample parcels to the said laboratory. So the record reveals that the safe transmission of the sample parcels to the concerned laboratory has not been established by the prosecution and the element of tampering with and fabrication cannot be excluded. 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 of doubt.

3. For the foregoing reasons, this appeal is ALLOWED. The conviction and sentence of the appellant Shah Zameen 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/S-35/SC Appeal allowed.