2020 PLP 1390 (MLD)

ABDUL HAMEED BALOCH, J.

This Criminal Jail Appeal is directed against the order dated 03.08.2019 (impugned judgment) passed by the Special Judge, Control of Narcotic Substances Lasbela at Hub (trial Court), whereby the appellant was convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997 ("the Act") and sentenced to suffer Rigorous Imprisonment (RI) for two years with fine of Rs.20,000/- (Rupees twenty thousand), in default whereof, further directed to undergo SI for fifteen (15) days Simple Imprisonment (SI) with benefit of Section 382-B of Criminal Procedure Code, ("Cr.P.C").

2. Brief facts leading to file the instant appeal is that on 28.11.2018 at 13:10 p.m, the complainant Sikandar Shair Muhammad along with other police official during course of patrolling when reached at Zehri Street Hub, where they found the appellant in suspicious condition. He was apprehended and during his personal search 1800 grams Charas was recovered from him. The recovered charas were taken into possession through vide recovery memos. Consequent to above, FIR No.418 of 2018 was lodged with Police Station Hub City.

3. After completion of investigation the challan was submitted before the trial court, whereby charge was framed and read over to the appellant to which he did not plead guilty and claimed trial. Thereafter the prosecution led its evidence to substantiate the charge. During the trial when the prosecution produced PW-1 and fixed the case for further evidence, meanwhile the appellant voluntarily admitted his guilt and requested for leniency. The trial court served notice under Sections 243/ 265-E, Cr.P.C. upon the appellant and thereafter his statement under section 342, Cr.P.C. was also recorded, where he once again admitted his guilt and prayed for leniency. As such the trial court convicted and sentenced the appellant in the aforementioned terms. Hence this appeal.

4. We have heard learned APG and have perused the available record. The record transpires that the after arrest of the appellant charge was framed and read over to him, to which he pleaded not guilty and claimed trial, where after the statement of PW-PW-1 was recorded. Meanwhile statement of appellant under Section 342, Cr.P.C. was recorded and thereafter he was convicted and sentenced. Although under Section 412, Cr.P.C. appeal against the conviction and sentence awarded on the basis of plead guilty is not competent, but the appellant can challenge the sentence on the basis of illegality. It is pertinent to mention here that the appellant did not plead guilty rather the conviction and sentence was recorded on the basis of statement under Section 342, Cr.P.C. which is not construed plead guilty. Admission of accused in his statement under Section 342, Cr.P.C. is admission of that incriminating material which were produced by the prosecution against him during the trial, but in the instant case except statement of PW-1 no other prosecution witness was examined by the trial court. Record further transpires that the allegedly recovered contraband was dispatched to the FSL on 12.09.2018 while the FIR was registered on 20th August, 2018 i.e. with delay of more than 20 days without any explanation. The prosecution has submitted challan of the case which reveals that the statement of the official who had taken the sample to the FSL was not recorded. The prosecution has failed to establish the safe custody of the alleged contraband. In this regard the Hon' able Supreme Court of Pakistan on the case of Abdul Ghani v. State 2019 SCMR 608, has held as under: "

2. There is hardly any occasion for discussing the merits of the case against the appellants because the record of the case shows that safe custody of the recovered substance as well as safe transmission of samples of the recovered substance to the office of the Chemical Examiner had not been established by the prosecution in this case. Nisar Ahmed, S.I/SHO complainant (PWJ) had stated before the trial court that he had deposited the recovered substance at the Malkhana of the local Police Station but admittedly the Moharrir of the said Police Station had not been produced before the trial court to depose about safe custody of the recovered substance. It is also not denied that Ali Sher, H.C. who had delivered the samples of the recovered substance at the office of the Chemical Examiner had also not been produced during the trial so as to confirm safe transmission of the samples of the recovered substance. It has already been clarified by this Court in the cases of The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), Ikramullah and others v. The State (2015 SCMR 1002) and Amjad Ali v The State (2012 SCMR 577) that in a case where safe custody of the recovered substance or safe transmission of samples of the recovered substance is not proved by the prosecution through independent evidence there it cannot be concluded that the prosecution had succeeded in establishing its case against the appellants beyond reasonable doubt. The case in hand suffers from the same legal defects. This appeal is, therefore, allowed, the convictions and sentences of the appellants recorded and upheld by the courts below are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required to be detained in connection with any other case. " For the foregoing reasons, we are of the considered opinion that the safe custody, as well as safe transmission of the alleged seized drug was not established, as such, the instant appeal is allowed and the impugned judgment dated 03.08.2019 passed by the Special Judge Control of Narcotic Substances, Lasbela at Hub is set aside. Consequently, the appellant/accused namely Muhammad Sharif son of Punhal Khan is acquitted of the charge. He is in judicial custody. He be released forthwith if not required in any other case. SA/121/Bal. Appeal allowed.