PLJ 2022 SC (Cr.C.) 201
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Appreciation of evidence--Safe custody and safe transmission--Withholding of best evidence--Material witness--Acquittal of--Prosecution has failed to establish the safe custody of sample parcels in the Malkhana as the Moharar was not produced, who allegedly kept in safe custody in Malkhana--Constable was not produced who allegedly transmitted the sample parcels to the concerned laboratory, hence prosecution failed to prove safe transmission of sample parcel to concerned laboratory--This petition is converted into an appeal and the same is allowed.
[Pp. 202 & 203] A & B
2015 SCMR 1002; 2016 SCMR 621; 2018 SCMR 2039;
2019 SCMR 930 ref.
Mr. Arshad Hussain Yousafzai, ASC for Petitioner.
Ms. Aisha Tasneem, ASC for Respondent (as State Counsel, Khyber Pakhtunkhwa).
Date of hearing: 8.3.2022.
PLJ 2022 SC (Cr.C.) 201
[Appellate Jurisdiction]
Present: Sardar Tariq Masood, Qazi Muhammad Amin Ahmed and Amin-ud-Din Khan, JJ.
SUBHANULLAH--Petitioner
versus
STATE--Respondent
Jail Petition No. 765 of 2017, decided on 8.3.2022.
(On appeal against the judgment dated 05.03.2015 of the Peshawar High Court, Peshawar in Criminal Appeal No. 241-P of 2012)
Judgment
Sardar Tariq Masood, J.--Petitioner Subhan Ullah faced trial in case FIR No. 480 dated 08.05.2011, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 (‘Act, 1997’) registered at Police Station Hayatabad, District Peshawar. On the conclusion of trial, the learned Judge Special Court/Judge, Juvenile Court, vide judgment dated 25.04.2012, convicted him under Section 9(c) of the Act, 1997 and sentenced to imprisonment for life with fine of
Rs. 50,000/- or in default of payment of fine to further undergo six months’ simple imprisonment. Benefit of Section 382-B, Cr.P.C. was also extended to him. Aggrieved of his conviction and sentence, the petitioner filed a Criminal Appeal before the Peshawar High Court, Peshawar and the learned High Court, vide impugned judgment dated 05.03.2015, dismissed the said appeal Hence, the instant petition for leave to appeal by the petitioner through jail.
2. After hearing the learned counsel for tile petitioner, learned counsel for the State and perusal of the available record as well as the impugned judgment it has been observed by us that prosecution has failed to establish the safe custody of sample parcels in the Malkhana as the Moharar was not produced, who allegedly kept in safe custody in Malkhana. Even Constable No. FC-410 was not produced who allegedly transmitted the sample parcels to the concerned laboratory, hence prosecution failed to prove safe transmission of sample parcel to concerned laboratory. There is no explanation on the file for withholding such important piece of evidence which is a requirement of law in light of the judgments of this 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), wherein it has been held that in a case containing the above mentioned defect on the part 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 any reasonable doubt. Learned counsel for the State conceded that safe custody and safe transmission of sample parcel could not be established by the prosecution. Due to this legal defect a dent was caused to the prosecution case creating serious doubt regarding the veracity of contraband allegedly recovered from the vehicle.
3. Learned counsel for the petitioner contends that petitioner had no concern whatsoever with the vehicle from whom the contraband was allegedly recovered nor ever he own the same nor will claim the same at a subsequent stage.
4. For the forgoing reasons, this petition is converted into an appeal and the same is allowed. The impugned judgment is set aside and while extending benefit of doubt, petitioner Subhan Ullah is acquitted of the charge in the instant case. He shall be released from jail forthwith if not required to be detained in connection with any other case.
(K.Q.B.) Petition allowed
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