2022 PLP 2093 (SCMR)

SARDAR TARIQ MASOOD, J.

Appellant Umar Zaman faced trial in case FIR No. 124 dated 15.03.2019 registered under section 9(c) of the Control of Narcotic Substances Act, 1997 ('the Act') at Police Station Sarband, District Peshawar. After a full-fledged trial, the trial court vide judgment 15.02.2012 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 Lahore High Court, Lahore which was dismissed vide impugned judgment dated 06.07.2015. Thereafter, he filed petition through jail before this Court wherein leave was granted on 29.03.2022. 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 with their able assistance and observed that recovery was affected on 15.03.2011 whereas the sample parcels were delivered to the office of Chemical Examiner on l9.03.2011. It is shrouded into mystery as to in whose safe custody the sample parcels and the other case property remained intact from 15.03.2011 to 19.03.2011 because the Moharrar, Malkhana was not produced to prove that he 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. Same is the condition of transmission of the sample parcels to the office of Chemical Examiner, as according to the report of Chemical Examiner FC-2900 deposited the sample parcels in the said office but the said official was never produced by the prosecution to establish the intact transmission of the sample parcels to the concerned laboratory. The learned Additional Advocate General, KPK also admitted that the evidence of Moharrar Malkhana and the concerned constable was not produced in the court and conceded that safe custody and safe transmission remained unproved by the prosecution. 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 the 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 par 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 Umar Zaman 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/U-2/SC Appeal allowed.