PLJ 2022 Cr.C. (Note) 8
Control of Narcotics Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Safe custody--Acquittal of--Recovery of two packets of charas (1300 gram each) weighing 2600 gram from a shopping bag--Out of recovered material, 65 grams of charas was separated from each packet for the purposes of Chemical Analysis--Complainant has confirmed that he deposited the samples in the office of Punjab Forensic Science Agency which is not supported by the report of Punjab Forensic Science Agency which revealed that the samples were submitted by the complainant on another date--Blue colour shopper bag was not taken into possession and one constable was also not examined at trial--Prosecution in the circumstances, failed to prove unbroken chain of the safe custody of the case property--Appeal allowed. [Para 2, 10, 11 & 13] A, B, C & D
Ch. Muhammad Abu-Bakar Khalid, Advocate for Appellant.
Malik Mudassar Ali, Deputy District Public Prosecutor for State.
Date of hearing: 21.6.2021.
PLJ 2022 Cr.C. (Note) 8
[Lahore High Court, Multan Bench]
Present: Sardar Ahmed Naeem and Muhammad Tariq Nadeem, JJ.
GHULAM ISHAQ--Appellant
versus
STATE, etc.--Respondents
Crl. A. No. 578 of 2020, heard on 21.6.2021.
Order
Sardar Ahmed Naeem, J.--This appeal is directed against the judgment dated 20.11.2020 rendered by Additional Sessions Judge, Mianchannu in case F.I.R. No. 57/2020 dated 05.02.2020, under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station Chab Kalan, Mianchannu whereby, the appellant was held guilty, convicted and sentenced to rigorous imprisonment for four years with fine of Rs.25,000/- and in case of default in payment of fine to further undergo simple imprisonment for one month. Benefit of Section 382-B, Cr.P.C. was, however, extended to him.
2. Case of the prosecution, as set-forth in the above said F.I.R was that Naeem Ullah, A.S.I. (PW.1) dispatched complaint (Ex.PB) on the basis of which formal F.I.R. (Ex.PC) was registered with the allegation that, on 05.02.2020 at about 01:30 p.m., he alongwith other police officials was present at Adda Chab Kalan. On receiving spy information, conducted raid, apprehended the appellant anal recovered two packets of charas (1300 gram each) weighing 2600 gram from a shopping bags then held by the appellant Out of the recovered contraband material, 65 gram was separated from each packet for the purposes of chemical analysis. On personal search, mobile G-5 (P.3) wattak amount of Rs. 1500/- (PA/1-2, P.5/1-5 and P.6) and electric scale (P.6) were also recovered from him.
3. After usual investigation, report under Section 173, Cr.P.C. was submitted. The learned trial Court indicted the appellant. He pleaded false implication and claimed trial.
4. At trial, in order to prove its case, the prosecution examined as many as four witnesses in all. Naeemullah, A.S.I. (PW.1) was complainant of this case. Muhammad Ashraf 808/C (PW.2) witnessed the recovery of charas and other articles and supported the prosecution story as mentioned in the F.I.R. Irfan Ahmad 554/HC (PW.3) chalked out the formal F.I.R. (Ex.PC). Nazar Abbas, S.I. (PW.4) investigated the case and found the appellant guilty.
5. Learned Assistant District Public Prosecutor given up Muhammad Ashraf 1389/C being unnecessary and after tendering into evidence report of Punjab Forensic Science Agency (Exh.PE) closed the prosecution evidence.
6. After the prosecution evidence, statement of the accused under Section 342, Cr.P.C. was recorded. He refuted, the prosecution allegation and responded to Question No. 6 “Why this case was registered against you and why the PWs have deposed against you?”, as under:
“It is totally a false case against me which has been registered against me to show their performance to their high ups by the local police. Previously police of the instant police station registered may cases against me but I, was acquitted in all of them by the competent courts of Mianchannu. I swear by God that the instant case is false and nothing was recovered from me rather the same was planted. PWs being police officials have deposed against me falsely.”
The appellant did not appear as his own witness under Section 340(2), Cr.P.C. However, produced copy of F.I.R. No. 319/15 (Mark-A), copy of judgment of his acquittal in case F.I.R. No. 442/16 (Mark-B) and copy of judgment of his acquittal in case F.I.R. No. 172/19 as Mark-C.
7. The learned trial court vide judgment dated 20.11.2020, convicted and sentenced the appellant as mentioned above. Being aggrieved of his conviction and sentence, the appellant-convict has filed the present appeal.
8. Learned counsel for the appellant strenuously argued that the prosecution failed to prove the unbroken chain of safe custody of the recovered material. He also touched the merits of the case though in a casual manner.
9. Learned Deputy Prosecutor General opposed this appeal with vehemence and submitted that it was a daylight occurrence, the PWs have no reason for false implication of the appellant; that version of the complainant gets support from the recovery memo attested by the PWs, who stood by their statements and firmly withstood the test of cross-examination; that nothing favourable was extracted by the defence; that a sizeable quantity of charas was recovered from the appellant, which usually cannot be foisted upon by the prosecution-police; that the prosecution proved its case beyond reasonable shadow of doubt, thus, the appeal deserves dismissal.
10. After hearing the learned counsel for the parties and perusing the record, it was noticed that the occurrence took place on 5.2.2020 at 01:30 p.m. in the area of Pul No. 84/15-L. Naeemullah, A.S.I. (PW.1), the complainant received a secret information that a person with huge quantity of charas was present on the above said Pul Then the appellant was caught red-handed by the raiding party, which recovered a blue shopping bag having two packets weighting 1300 gram each. Out of the recovered material, 65 grams of charas was separated from each packet for the purposes of Chemical Analysis. After the registration of the F.I.R. (Exh. PC), the Investigating Officer Nazar Abbas, S.I. (PW-4) came at the crime scene and got the custody of the appellant alongwith four parcel including samples and remainder of case property (P. 1 and P.2).
11. The only contention raised by the learned counsel for the appellant was that the prosecution failed to prove the unbroken chain of safe custody. In this context, we observed that the complainant was silent about handing over samples of case property (P.1 and P.2) to Investigating Officer on his visit to the crime scene. However, the Investigating Officer and Moharar (PW.3) have supported each other regarding handing over/receipt of the parcels including samples and case property. If we look at the statement of the Naeemullah, A.S.I. (PW.1), it was categorically mentioned therein that he received samples parcels for its onwards transmission to the Punjab Forensic Science Agency Collection Centre, Multan on 12.05.2020. It was submitted by the learned Deputy Prosecutor General that it was a result of inadvertent omission but his argument is repelled for the reason that the complainant during the cross-examination has confirmed this fact once again that he deposited the samples in the office of Punjab Forensic Science Agency on 12.05.2020 which is not supported by the report of Punjab Forensic Science Agency (Exh.PE) which revealed that the samples were submitted by the complainant on 12.02.2020.
12. The apex Court regarding safe custody and safe transmission in case titled “The State through Regional Director ANF v. Imam Bakhsh and others” reported as (2018 SCMR 2039), observed as under:
“... safe custody and safe transmission of the alleged drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory are not satisfactorily established. The chain of custody beings with the recovery of the seized drug by the Police and includes the separation of 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 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 in incapable of sustaining conviction. This Court has ready 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.”
13. The record further suggested that the blue colour shopper bag was not taken into possession and Zahid Altaf 1044/C was also not examined at trial. The prosecution in the circumstances, failed to prove unbroken chain of the safe custody of the case property, thus, the impugned judgment of the learned trial Court, whereby the appellant was held guilty cannot be sustained.
14. Seeking guidance from the observation of their lordships and respectfully following the same we allow this appeal. Resultantly, the impugned judgment dated. 20.11.2020 is set aside. The appellant is acquitted of the charge. He is in jail and shall be released forthwith if not required in any other criminal case.
The case property shall be dealt with as directed/ observed by the learned trial Court.
The office shall ensure the remittance of the record of the learned trial Court with due haste.
(K.Q.B.) Appeal allowed
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