2026 PLP 582 (SCMR)

ATHAR MINALLAH, J.

Asif son of Rauf (appellant) had challenged his conviction and sentences by filing Jail Petition No.367 of 2021 and it was converted into an appeal and allowed vide our short order of even date. The appellant was acquitted from the charge framed against him by extending the benefit of doubt. Consequently, the judgments of the trial court and the High Court dated 04.06.2018 and 08.06.2021 respectively were set aside. We are, therefore, now recording our reasons in support of the acquittal of the appellant.

2. The appellant was arrested on 04.11.2016 after considerable quantity of narcotic substance was recovered from the secret cavities of the vehicle driven by him. The appellant was nominated in Crime Report No.1150 dated 04.11.2016 registered at Police Station Badaber, Peshawar for commission of the alleged offence under section 9(c) of the Contral of Narcotics Substances Act, 1997 ('Act of 1997'). The trial court, upon conclusion of the trial, convicted the appellant vide judgment dated 04.06.2018 for the commission of the offence under section 9(c) of the Act of 1997 and he was sentenced to imprisonment for life and in addition he was ordered to pay fine amounting to Rs.100,000/- and in default thereto to further undergo simple imprisonment for six months. The benefit of section 382-B of the Code of Criminal Procedure, 1898 ('Cr.P.C.') was extended in his favour. The appeal preferred by the appellant was dismissed by the High Court vide impugned judgment dated 08.06.2021.

3. We have heard the learned counsel for the appellant and the learned Additional Advocate General, Khyber Pakhtunkhwa. We also perused the record with their able assistance.

4. The appellant was arrested after substantive quantity of narcotic substance was recovered from the secret cavities of the vehicle which he was driving. He was the only occupant of the vehicle. The prosecution in order to prove its case had produced, Sher Ahmad, ASI (PW-1), Qazi Arif, SI (PW-2), Sabi Ali, SI/SHO (PW-3), Constable Khanzada (PW-4) and Javed Khan, SI (PW-5), as the witnesses. They had deposed regarding the recovery of the narcotic substance, the samples separated from it and its safe custody at the police station. Javed Khan, SI (PW-5) had tendered in evidence the extracts from Register No.19 and the same was exhibited as Ex.PW5/3. He had also tendered in evidence the extracts of Register No.21 which was exhibited as Ex.PW5/4. The crucial aspect and the obligation of the prosecution was to prove safe transmission of the samples from the police station to the Forensic Science Laboratory ('FSL'). The record indicates that the samples were handed over to Constable Abdul Wali, who had delivered the sealed parcels at the office of the FSL, He was not produced as witness neither the prosecution had brought on record reliable, trustworthy and confidence inspiring evidence to prove the safe transmission of the sealed parcels from the police station to the FSL. The failure on part of the prosecution to prove safe transmission of the scaled samples from the police station to the FSL had profoundly affected the evidentiary value of the positive report submitted by the latter. This had created doubt regarding the safe transmission of the samples and had raised questions relating to the samples as being the same which were separated from the narcotic substance seized on 04.11.2016.

5. In view of the above, the benefit of doubt, as of right, could not have been withheld and thus deny acquittal to the appellant. It was for the above reasons that he was acquitted by extending the benefit of doubt and consequently, his conviction and sentences handed down by the trial vide judgment dated 04.05.2018 and later upheld by the High Court vide judgment dated 08.06.2021 respectively, were set aside. In case, the appellant is not required to be incarcerated in any other case then he shall forthwith be released from the prison. JK/A-66/SC Appeal allowed.