12/04/2021
2020 P Cr. L J 1524
[Peshawar (Mingora Bench)]
Before Syed Arshad Ali and Waqar Ahmad, JJ
FAZAL MAULA---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 284-M of 2019, decided on 8th October, 2019.
(a) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Contradictory statements---Scope---Accused was alleged to have been found in possession of 4000 grams of charas---Witnesses had contradicted each other regarding the mode of stopping the vehicle; the part of vehicle from which the narcotic was recovered; the possession of case property and the person who had sealed the parcels---Complainant stated that he had first sealed the parcels then prepared the recovery memo and thereafter drafted murasila meaning thereby that FIR was not chalked out at that time, thus, the entry of FIR number on the parcels at the spot led to the conclusion that recovery was not made in the mode and manner as alleged by the prosecution---Conviction could neither be approved nor upheld on the basis of shaky evidence---Appeal against conviction was allowed, in circumstances.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)---Possession of narcotics---Transmission of samples to Forensic Laboratory---Retention of samples by the sample-bearer for one night---Effect---Sample-bearer stated in cross-examination that he received the parcel in the evening and delivered the same on the next day---Duty of sample-bearer was to safely deliver the samples in the laboratory and he was not authorized to retain the samples in his possession before his departure to the Forensic Laboratory---Prosecution had not explained for which purpose the samples were handed over to the sample - bearer to retain them for one night---Chain of safe custody of the samples was broken and safe transmission thereof to the laboratory had become doubtful---Such report of Forensic Laboratory could not be relied upon against the accused--- Appeal against conviction was allowed, in circumstances.
The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 rel.
Noor Alam for Appellant.
Haq Nawaz, Assistant A.G. for the State.
Date of hearing: 8th October, 2019.
JUDGMENT
SYED ARSHAD ALI, J.---Impugned herein is the judgment dated 11.06.2019 rendered by learned Additional Sessions Judge/Judge Special Court, Dir Upper at Wari whereby appellant Fazal Maula was convicted on the charge under section 9(c), C.N.S.A. vide FIR No. 608 dated 28.12.2018 of Police Station Wari and he was sentenced to five years' R.I. with fine of Rs.50,000/- or to undergo further 03 months' S.I in case of default in payment of fine.
2. Brief facts of the case as narrated in the FIR are that on spy information regarding transportation of huge cache of chars from the down area of the province, the complainant Gul Fazil Khan SHO (PW-3) in this regard had deployed police employees in usual dress on 28.12.2018. The complainant received information that the person was waiting for customer on Jelar road at Chapar Pul, therefore, he along with other police contingents proceeded to the spot where he found motorcar Fielder No. 1549/Bajaur wherein the appellant was seated. During search of the vehicle, four packets of chars each weighing 1000 grams total 4000 grams were recovered from beneath the rear seat of the said motorcar. 10 grams from each packet were separated as samples for forensic analysis and sealed in Parcels Nos.1 to 4 whereas the remaining packets containing 990 grams each were sealed in Parcels Nos. 1A, 2A, 3A and 4A. The contraband was taken into possession vide recovery memo Ex.PW-3/1 attested by Qaid Khan ASI (PW-6) and Fazal Wali HC (not produced).
3. On the strength of the above alleged recovery, the complainant arrested the appellant and reported the matter against him through Murasila Ex.PW-3/3 on the basis of which Muhammad Azam Khan S.I (PW-5) chalked out formal FIR Ex.PW-5/1.
4. After completion of investigation, the complainant submitted complete challan before the trial Court. Upon commencement of trial against the appellant, the prosecution produced 08 witnesses in support of its case. The appellant, during his examination under section 342, Cr.P.C. has denied the allegations of prosecution, however, he has neither produced any evidence in his defence nor wished to be examined on oath. On conclusion of trial, the learned trial Court vide impugned judgment has convicted him for the offence under section 9(c), C.N.S.A. and sentenced him to five years' R.I with fine of Rs.50,000/-, hence, this appeal.
5. Arguments heard and record of the case was perused.
6. It is the case of prosecution that on receipt of spy information, the police employees were already posted in common apparels at the place of occurrence on whose information the complainant had proceeded to the spot and had recovered 4000 grams charas from hidden cavities beneath the rear seat of motorcar No. 1549/Bajaur which was in direct and immediate possession of the appellant. The first and important controversial point in this case is the receipt of spy information and deployment of police officials in common dress near the spot. The complainant has recorded his statement as PW-3 the close perusal whereof reveals that the same is self-contradictory. He at the very beginning of his cross-examination stated that:
The complainant has neither attested the alleged recovery memo through the police officials present there in simple dress nor the I.O has shown their presence in the site plan.
7. According to the contents of the FIR as well as the statement of complainant (PW-3), the motorcar was already parked before his arrival to the spot. In response to certain question of the defence counsel the complainant stated that:
But the above assertion of the complainant has been contradicted by I.O. in the site plan Ex.PW-4/l wherein it was noted that:
8. The prosecution has also not established through unimpeachable evidence that from which part of the vehicle the narcotics were recovered. According to the FIR and examination-in-chief of the complainant, the alleged recovery was made from secret cavities beneath the rear seat of the motorcar but in his cross-examination the complainant has altogether changed his above version by stating that:
Similarly, the Investigating Officer (PW-4) has admitted in his cross-examination that:
Quaid Khan ASI (PW-6), who is an attesting witness of the recovery memo Ex.PW-3/1, on the one hand admitted that but he has tried to explain the 'secret cavity' by stating that the space beneath the rear seat by itself is a secret cavity, however, his above explanation is not sufficient to repair the serious dent caused by above contradictory statements of the complainant and I.O. in the prosecution case.
9. The complainant has also stated in his cross-examination that . Similarly, the statement of the alleged eye-witness PW-6 also gives an impression that the case property was still with the complainant upon arrival of the I.O. to the spot but the said version of the complainant and PW-6 has been denied by the I.O. who stated in his cross-examination that:
PW-6 also admitted in his cross-examination that:
As per admission of the complainant during cross-examination, he had first sealed the parcels then prepared the recovery memo and thereafter drafted Murasila meaning thereby that FIR was not chalked out at that time, thus, the entry of FIR number on the parcels on the spot leads us to the conclusion that the recovery had not been made in the mode and manner as alleged by prosecution. Another important inconsistency in the prosecution case is the sealing of parcels. According to the complainant, he had sealed the parcels on the spot but contrary to his that version, constable Wahidullah (PW-7) has stated that he had sealed the samples on 31.12.2018 three days after the alleged recovery. In this regard examination-in-chief of PW-7 is worth perusal.
Sealing of samples containing 10 grams each by PW-7 on the fourth day of the recovery not only creates a serious doubt regarding the alleged recovery from the motorcar of the appellant but it has also rendered the authenticity of samples highly doubtful. The afore-mentioned glaring contradictions and discrepancies go into the roots of the prosecution case which cannot be ignored while deciding the fate of the present appeal.
10. It is further evident from the record that the alleged recovery was affected on 28.12.2018 and the samples were delivered in the office of the Forensic Laboratory on 31.12.2012 through constable Nasir Khan No. 768. The said constable was examined as PW-1 who has stated in his cross-examination that:
The duty of PW-1 was to safely deliver the samples in the laboratory and he was not authorized to retain the samples in his possession before his departure to the Forensic Laboratory. The prosecution has not explained that for what purpose the samples were handed over to PW-7 to retain the same for one night. In view of the statements of PW-1 and PW.7, the chain of the safe custody of the samples is broken and safe transmission thereof to the laboratory has become doubtful, as such, the F.S.L report Ex.PW-4/6 cannot be relied upon against the appellant. Reliance in this regard is placed on "The State through Regional Director ANF v. Imam Bakhsh and others" 2018 SCMR 2039.
The chain of custody begins 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 the 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 it incapable of sustaining conviction.
Hence, the impugned conviction on the basis of such shaky evidence can neither be approved nor upheld.
11. For what has been discussed above, the instant Criminal Appeal No. 284-M/2019 is allowed, the impugned judgment dated 11.06.2019 rendered by learned Additional Sessions Judge/Judge Special Court Dir Upper at Wari is set aside and appellant/convict Fazal Maula son of Anwar Khan is acquitted of the charge in case FIR No. 608 dated 28.12.2018 under section 9(c), C.N.S.A. of Police Station Wari, District Dir Upper. He be released forthwith from Jail if not required in any other case.
12. Above are the reasons of our short order of the even date.
SA/68/P Appeal allowed.
