2020 PLP 687 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Haji Nawaz appellant and another were booked in case FIR No. 178 registered at Police Station Tehkal, District Peshawar on 16.02.2015 in respect of an offence under section 9(c) of the Control of Narcotic Substances Act, 1997. After a regular trial the appellant was convicted by the trial court for the offence under section 9(c) of the Control of Narcotic Substances Act, 1997 and was sentenced to rigorous imprisonment for seven years and fine which conviction and sentence of the appellant were subsequently upheld and maintained by the High Court upon dismissal of the appellant's appeal. Hence, the present appeal by leave of this Court granted on 19.10.2016.

2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise.

3. According to the prosecution a motorcar was intercepted by a police party at about 07.30 p.m. on 16.02.2015 on the University Road in the area of the above mentioned Police Station, the driver of the said vehicle escaped from the scene, the appellant was arrested at the spot and from beneath the driver's seat as well as from under the front seat and the trunk of that motorcar heroin weighing ten kilograms contained in ten separate packets weighing one kilogram each was recovered. The prosecution had maintained that samples had been secured from each and every packet of the recovered substance which samples had subsequently been tested positive by the Chemical Examiner but we note that at the time of recording the appellant's statement under section 342, Cr.P.C. the report of the Forensic Science Laboratory had not been put to him at all. The law is settled by now that if a piece of evidence or a circumstance is not put to an accused person at the time of recording his statement under section 342, Cr.P.C. then the same cannot be considered against him for the purpose of recording his conviction. Apart from that we have further observed that no evidence worth its name had been produced by the prosecution before the trial court establishing safe custody of the recovered substance at the local Police Station or safe transmission of the samples of the recovered substance from the Police Station to the office of the Chemical Examiner. This Court has already held in the cases of Amjad Ali v. The State (2012 SCMR 577) and Ikramullah and others v. The State (2015 SCMR 1002) that in the absence of any proof regarding safe custody or safe transmission of the recovered substance or the samples thereof a conviction cannot be recorded in a case of this nature. The record of the case shows that it had been maintained in the FIR that the appellant had been arrested at the spot but the statement made by Mansoor (PW3) before the trial court showed that the appellant had actually been arrested at the Police Station when a receipt was produced before the investigating officer showing that the appellant was the owner of the vehicle seized in the case. Such a statement becoming available on the record through the mouth of a prosecution witness had gone a long way in destroying credibility of the prosecution's allegations against the appellant. As if this were not enough, even according to the prosecution's own showing the appellant was merely a passenger sitting on the passenger seat of the relevant vehicle at the time of the raid and recovery and the substance recovered in this case had been recovered from underneath some seats of the relevant vehicle and its trunk. The appellant might be the owner of the relevant vehicle but at the relevant time his conscious possession of the narcotic substance had to be established by the prosecution, particularly when the vehicle was in control of the driver who had escaped, but the prosecution had completely failed on that score.

4. For what has been discussed above we have found that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded and upheld by the courts below are set aside and he is acquitted of the charge by extending the benefit of doubt to him. A report dated 14.04.2018 received from the Superintendent, Central Prison, Peshawar shows that the appellant has already been released from the jail on 22.03.2018 upon serving out his sentence. In view of this development no order is required for release of the appellant from the jail as a consequence of his acquittal by this Court. MWA/N-7/SC Appeal allowed.