2020 P Cr (PLP)

ANWAAR-UL-HAQ PANNUN, J.

Through this appeal under section 48 of The Control of Narcotic Substances Act, 1997 (CNSA, 1997), the appellant Rashid Ali has challenged his conviction and Sentence awarded to him, vide judgment dated 10.10.2013 in case/FIR No.361/2011 dated 28.11.2011, offence under section 9(c) of CNSA, 1997, registered at Police Station Alpa, District Multan, passed by learned Additional Sessions Judge/Special Court (CNS), Multan; whereby the appellant has been convicted and sentenced as under:- Under section 9(c) of CNSA, 1997 "Imprisonment for life and fine Rs.2,00,000/- and in default thereof, he shall further undergo simple Imprisonment for six months. The benefit of section 382-B, Cr.P.C. is extended to the convict."

2. Precisely the facts as embodied in the FIR (Exh:PB/1), lodged on the complaint (Exh.PB) of Muhammad Akram S.I (PW-3) are that on 28.11.2011, during interrogation of case/FIR No. 359/2011 dated 26.11.2011; offence, under section 380, P.P.C., registered at Police Station Alpa, Multan, the accused/appellant disclosed that he is dealing in the business of Poast and opium and he had electric Chakki for grinding Poast which he can get recovered from his house. On disclosure of the accused; the complainant and other police officials along with the accused reached at the house of the accused. The accused led them towards the Western room of his house and pointed out the Poast kept inside the room and the Poast was weighed which became 08 mounds and 30 Kilograms (P-1). Out of the recovered Poast, 500 grams was separated and sealed in the parcel and the accused also led them towards recovery of electric Chakki kept in the courtyard. The sample, electric Chakki, and rest of time recovered Poast was taken into possession by the complainant vide recovery memo Exh.PA; which was attested by Manzoor Ahmad ASI and Shahbaz 1278/C. The accused could not produce any license regarding the buying and selling of recovered Poast.

3. After investigation and on receiving the report under section 173, Cr.P.C., the learned trial Judge took the cognizance, supplied the copies of the statements of witnesses recorded under section 161, Cr.P.C., to the appellant, framed charge, to which the appellant pleaded not guilty, proceeded to record the evidence of the prosecution witnesses (PW-1 to PW-5). The learned Prosecutor submitted positive report of Chemical Examiner, Multan (Exh.PD). Thereafter, the appellant was examined under section 342, Cr.P.C. wherein he pleaded his innocence. In reply to the questions that why this case and why the PWs deposed against him, the appellant replied, as under:-- "The story of the prosecution is fake and fictitious. Nothing was recovered from my possession. I have no shady past. I have no previous record in such like cases. It is fact that I was arrested by the local police on 22.11.2011 in case FIR No.275/11 dated 28.8.2011 under sections 337-A(ii)/337-L(2), P.P.C., registered at Police Station Alpa, Multan because my pre-arrest bail was dismissed due to non-prosecution from the Court of Mr. Dawar Zaffar Ali, learned ASJ, Multan, on 21.11.2011, then local police implicated me in case FIR No.359/11 dated 26.11.2011 under sections 380/411, P.P.C. registered at. P.S Alpa, Multan, then local police implicated me in the above said case while I have no concern with alleged house from where alleged narcotics was recovered. The story of the FIR is fake because my arrest never recorded in the roznamcha of said police station. As per record, no arrest was shown on 28.11.2011 and further no raiding party was constituted as per roznamcha. It is also fact that when I was produced before the learned Ilaqa Magistrate by the I.O. on 29.11.2011 in case FIR No.275/11, he did not narrate about the recovery of narcotics so I am innocent, all the PWs are the police officials they deposed against me on the asking of high ups with the fear that if they would not depose against me then they will be kicked out from the service." The appellant did not examine himself under section 340(2), Cr.P.C. However, in defence evidence, he produced photocopies of roznamcha of police station dated 28.11.2011, FIR No.275/11, 359/11, petition for physical remand in case FIR No.275/11 and order of the Court as Mark-A to Mark-D/1. On the conclusion of trial, learned trial Judge convicted and sentenced the appellant through the impugned judgment as alluded to in para No.1 of the instant judgment. Hence, this appeal.

4. Arguments heard. Record perused.

5. Perusal of complaint (Exh.PB) reveals that the complainant Muhammad Akram SI (PW-3) did not depose about the sealing of the case property at the spot and he simply mentioned that the sample and bags of remaining poast along with electric Chakki was taken into possession through recovery memo. Muhammad Akram SI, complainant/I.O. (PW-3) and Manzoor Ahmad ASI, another recovery witness (PW-5) are also silent about sealing of the remaining case property at the spot. The recovery memo (EXh.PA) and the complaint (Exh.PB) are also silent about the number of bags of the rest of the recovered poast. However, in cross-examination, Muhammad Akram SI (PW-3) deposed that the Poast was packed in nine toras. Ahmad Nawaz ASI (PW-1) who was officiating as Moharrir at the relevant time did not depose about the toras/bags, however, he stated that I.O. handed over to him one sealed parcel said to contain Poast as sample and rest of the case property poast weighing 08 mounds 29-1/2 kg for keeping the same in Malkhana in safe custody. During cross-examination, he deposed that "the remaining bulk which was handed over to him in the P.S. was consisted of nine toras of plastic bag. The name of the accused as well as other particulars was written on the parcels but nothing was written on the remaining nine toras. Nothing was printed on each tora." Muhammad Akram SI/complainant/ID (PW-2) stated that he did not collect the sample from each tora, as he separated the sample from the bulk of poast. Hence, in view of above, the safe custody of the remaining case property is not proved from the material available on record. It has been held in case titled "The State through Regional Director ANF v. Imam Bakhsh and others"(2018 SCMR 2039) that:- "The chain of custody begins with the recovery of the seized drug by the Police and includes the separation the representative sample(s) of the seized drug and their dispatch, to the Narcotics Testing Laboratory. This chain of custody, is pivotal, as the entire construct of the Act and the Rules rests on the Report of the Government Analyst; which in turn rests on the process of sampling and its safe and secure custody and transmission to the laboratory. The prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample(s) and will impair and vitiate the conclusiveness and reliability of the Report of the Government Analyst, thus rendering it incapable sustaining conviction. This Court has already held in Amjad Ali v. State (2012 SCMR 577) and Ikramullah v. State (2015 SCMR 1002) that where safe custody or safe transmission of the alleged drug is not established, the Report of the Government Analyst becomes doubtful and unreliable. Furthermore, Muhammad Saeed 582/C (PW-2) stated that on 01.12.2011, Moharrar handed over to him one sealed parcel of Poast as sample, which he deposited in the office of Chemical Examiner. Multan on the same day intact. When report of the Chemical Examiner, Multan (Exh.PD) was perused, contrary to that the name of Forwarding Officer has been mentioned as E.T.O and not by the local police. When confronted to Deputy Prosecutor General for the State, he has felt himself to be in a cauldron and conceded that there is no evidence whatsoever available on record that how these samples were handed over to E.T.O. for onwards transmission to the office of Chemical Examiner. Hence, in view of this situation, safe custody of the recovered substance or its samples is not discemable from the record of this case. Reliance in this regard is placed upon case titled "Muhammad Abbas v. The State" (2006 YLR 2378).

6. In view of above, we are of the view that prosecution has failed to establish its case against the appellant. Though there is a slight difference in the manner and standard of proof in the cases registered under The Control of Narcotic Substances Act, 1997 but the prosecution is always bound to discharge the initial onus of proof. Undoubtedly, in terms of section 29 of The Control of Narcotic Substances Act, 1997, some departure to this general principle has been introduced, still the prosecution cannot be absolved from its duty to discharge the onus of proof. The initial onus of proof always lies upon the prosecution and when once it is discharged, then the accused would be burdened to prove the contrary in terms of principles laid down in section 29 of The Control of Narcotic Substances Act, 1997. The case of the prosecution is fraught with doubts and for earning the acquittal, the accused is not obliged to establish number of circumstances creating doubts but even a single circumstance, creating a reasonable doubt in the prudent mind is sufficient to extend the benefit of doubt to the accused. Reliance in this regard is placed upon case titled "Muhammad Ashraf and others v. The State and others" (PLD 2015 Lahore 1) and "Muhammad Zaman v. The State and others" (2014 SCMR 749).

7. For what has been discussed above, we are inclined to observe that the prosecution has failed to discharge its onus for upholding the conviction recorded by the learned Addl. Sessions Judge/Judge Special Court (CNS), Multan, against the appellant. We thus, while allowing this appeal, set aside the judgment dated 10.10.2013 and acquit the appellant from the charges. The appellant is in jail, he be released forthwith if not required in any other case. SA/R-16/L Appeal allowed.