2022 P Cr (PLP)

MUHAMMAD WAHEED KHAN, J.

Through the instant appeal, appellant has challenged his conviction and sentence awarded to him by the learned Sessions Judge, Rahim Yar Khan vide judgment dated 11.02.2016 in case FIR No.366 dated 09.08.2014 registered under section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station Taranda Muhammad Pannah, District Rahim Yar Khan, whereby on conclusion of trial, learned trial Court convicted and sentenced him 06 years' and 06 months' Rigorous Imprisonment with fine of Rs.30,000/-, in default thereof, to further undergo six months' simple imprisonment. Benefit of section 382-B, Cr.P.C. was also extended to the appellant.

2. Allegation against the accused/appellant was that on 09.08.2014, the complainant Muhammad Riaz SI and other police officials were on patrolling duty, they received a spy information that the appellant was waiting for a transport at bus stop Bye-pass having charas in his possession and could be apprehended red handed. On which, a raid was conducted and the appellant was apprehended and upon search of shopping bag held by him in his hand, charas comprising four pieces was recovered which was found on weighing to be total four kilograms, out of which ten grams from each piece was separated by the complainant as sample and as such four sample parcels were prepared for chemical analyses, whereas rest of the recovered charas was put into a separate parcel, which was taken into possession vide recovery memo Ex-PA, hence, this case.

3. After registration of case police investigated the matter and submitted report under section 173, Cr.P.C. before the learned trial Court by declaring the appellant as guilty. Learned trial Court after completing codal formalities, framed charge against the appellant, which was denied by him, so, the prosecution evidence was summoned.

4. The prosecution in order to prove its case produced five witnesses i.e. Ghulam Bilal 1717/C appeared as PW-1, Shah Nawaz, A.S.I. the recovery witness appeared as PW-2, Muhammad Riaz, S.I. complainant as well as Investigating Officer of the case appeared as PW-3, Shahid Hussain 1624/HC Moharrer of the Police Station appeared as PW-4, whereas Muhammad Ashraf, A.S.I., who chalked out formal FIR appeared as PW-5. Thereafter, the prosecution closed its evidence by producing report of Punjab Forensic Science Agency as Ex-PD.

5. The appellant was examined under section 342, Cr.P.C., wherein he denied all the allegations leveled against him. He did not opt to appear under section 340(2), Cr.P.C. as his own witness, however, produced certain documents in his defence.

6. In support of the instant appeal, learned counsel for the appellant submitted that the prosecution remained failed to prove its case against the appellant 'beyond reasonable shadow of doubt' as the safe custody of the contraband was seriously questioned during the course of trial because the statements of the prosecution witnesses were not in conformity to each other; that in fact the alleged recovery of contraband had been planted on the appellant, so under the circumstances, conviction and sentence awarded to the appellant were liable to be set aside and he may be acquitted of the charge by accepting the instant appeal.

7. Conversely, learned Assistant District Public Prosecutor while faithfully supporting the impugned judgment vigorously controverted the arguments advanced by the learned counsel for the appellant and submitted that the prosecution had successfully brought home the guilt of the appellant by producing cogent, trustworthy and coherent evidence, hence, the instant appeal is liable to be dismissed.

8. We have heard the arguments of learned counsel for the appellant, learned Law Officer and perused the record with their assistance.

9. Case of the prosecution as contained in the FIR (Ex-PB/1) was that on apprehending appellant Inayat Ullah by the officials of Police Station Taranda Muhammad Pannah in the area of Bye-pass, charas weighing 04 kilogram consisting of four packets (1000 grams each) was recovered from his possession, out of which, 10 gram charas was separated for chemical analyses and made into four parcels, whereas fifth parcel was prepared of the remaining case property. Muhammad Riaz (PW-3) S.I. complainant/Investigating Officer of the case specifically deposed before the learned trial Court that all the sealed parcels were stamped with marks but when the parcel consisting of case property was shown to him during his deposition before the learned trial Court, he admitted that this was not the parcel, which he had prepared, sealed and stamped. An excerpt from his deposition before the learned trial Court is as under;- "The particulars of case are mentioned on the sealed parcels. I had mentioned the name of accused, my name, case/FIR number and nature of offence. The parcel of case property present in Court is changed one, again said the writing of my name and signatures are missing on it." (underline provided for emphases) Meaning thereby that the parcel consisting of case property tendered by the prosecution before the learned trial Court as P1 was not the same, which was prepared and secured by the Investigating Officer at the crime scene.

10. Similar was the position of PW-4 Shahid Hussain 1624/HC Moharrer, who admitted this fact in the following words;- "It is correct that the sealed parcel P.1 present in the Court does not bear the name of accused and I.O., however, FIR number and offence under section 9(c) is mentioned on the same."

11. So in the light of supra discussion, conclusion is inescapable that the prosecution has failed to prove the safe custody of the contraband right its recovery from the appellant, converting into parcel, keeping it with the police and its onward transmission to the learned trial Court. So, while relying on the principle laid down by the august Supreme Court of Pakistan in judgments reported as "Amjad Ali v. State" (2012 SCMR 577), "Ikramullah v. State" (2015 SCMR 1002) and "The State through Regional Director ANF v. Imam Bakhsh and others" (2018 SCMR 2039), the instant Criminal Appeal is allowed, conviction and sentence awarded by the leaned trial court to the appellant Inayat Ullah is set aside and he is acquitted of the charge. He is on bail, so, his surety is released from the liability of bail bond. SA/I-10/L Appeal allowed.