2006 PLP 2378 (YLR)

ASIF SAEED KHAN KHOSA, J.

Muhammad Abbas appellant was convicted for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 vide judgment dated 22-7-2002 rendered by the learned Additional Sessions Judge, Ferozewala, District Sheikhupura and was sentenced to imprisonment for life and a fine of Rs.1,00,

000. He was further convicted for an offence under section 9(a) of the Control of Narcotic Substances Act, 1997 and was sentenced to rigorous imprisonment for two years. Both the sentences of imprisonment passed against the appellant were ordered to run concurrently and the benefit under section 382-B, Cr.P.C. was extended to him. The appellant has challenged his convictions and sentences before this Court through the present appeal.

2. According to the prosecution the appellant had been apprehended by a police party at about 2-00 p.m. on 29-6-1998 at Menno Abad Bus Stop in Muridke, District Sheikhupura and Charas weighing 4300 grams and heroin weighing 100 grams were recovered from his possession. F.I.R. No.292 was registered at Police Station Sadar, Muridke, District Sheikhupura in that regard at 2-40 p.m. on 29-6-1998 in respect of offences under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. After completion of the investigation a challan was submitted and the learned trial Court framed a charge against him to which he pleaded not guilty and claimed a trial. During the trial the prosecution produced four witnesses in support of its case against the appellant and also relied upon a positive report of the Chemical Examiner. In his statement recorded under section 342, Cr.P.C. the appellant denied and controverted all the allegations of fact leveled against him by the prosecution and professed his innocence. He, however, opted not to make a statement on oath under section 340(2), Cr.P.C. but he produced one witness in his defence. Upon conclusion of the trial the learned trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, it convicted and sentenced the appellant as mentioned and detailed above. Hence, the present appeal before this Court.

3. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance.

4. After hearing the learned counsel for the parties and going through the record we have straightaway observed that although the alleged recovery of narcotic substance from the appellant's possession had been effected on 29-6-1998 yet none of the prosecution witnesses had uttered even a single word as to what had happened to the recovered substance after its recovery and with whom the same had been deposited for safe custody. It was only Muhammad Ramzan, FC (P.W.4) who had stated before the learned trial Court that on 13-7-1998 he had been handed over two parcels said to contain herion and Charas by Moharrir Head Constable of the relevant police station for onward transmission to the office of the Chemical Examiner which he delivered there on the same day. The report of the Chemical Examiner (Exhibit-PE), however, shows that the docket of the samples of the recovered substance had been prepared on 6-7-1998 and the said samples had been dispatched by the Excise and Taxation Officer, Sheikhupura and not by the local police. We have required the learned counsel for the state to explain as to how the samples of the recovered substance had come in the hands of the Excise and Taxation Officer, Sheikhupura and what was the evidence available on the record to confirm that the same had been kept in safe custody while in possession of the Excise and Taxation Officer, Sheikhupura but after going through the record of this case from cover to cover he has categorically conceded that there is no evidence whatsoever available on the record in those respects. In such a state of the evidence available on the record safe custody of the recovered substance or its samples is not discernable from the record of this case and, thus, we have found it to he extremely unsafe to uphold and maintain the appellant's convictions and sentences recorded by the learned trial Court. This appeal is, therefore, allowed, the convictions and sentences of the appellant recorded by the learned trial Court are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required in any other case. H.B.T.IM-288/L Appeal allowed.