ZAHIR SHAH alias SHAT vs The STATE through Advocate-General, Khuber Pakhtunkhwa

SYED MANSOOR ALI SHAH, J. Upon secret information, the appellant was apprehended and 10 kilograms of charas was recovered from him. In this background, he was booked in FIR No.487, registered at Police Station Risalpur , District Nowshera, under section 9(c), Control of Narcotic Substances Act, 1997 and section 489-B, P.P.C.

After regular trial, he was convicted and sentenced to 10 years' imprisonment, with fine of Rs.200,000/- or in case of default to undergo further imprisonment for six months. Upon appeal before the High Court, the said conviction and sentence was upheld. Hence, this appeal after grant of leave vide order dated 27.9.2017.

2. We have reappraised the evidence with the able assistance of learned counsel for the parties and have noticed at the very outset that the Police constab le, bearing No.FC-688, who delivered the sealed parcel to the Forensic Science Laboratory , Peshawar on 27.2.2013 was not produced by the prosecution. This fact has been conceded by the learned law officer appearing on behalf of the respondents. This court has repeatedly held that safe custody and safe transmission of the drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory must be satisfactorily established. This chain of custody is fundamental as the report of the Government Analyst is the main evidence for the purpose of conviction. The prosecution must establish that chain of custody was unbroken, unsuspicious, safe and secure. Any break in the chain of custody i.e., safe custody or safe transmission impairs and vitiates the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction. Reliance is placed on State v . Imam Bakhsh (2018 SCMR 2039 ).

3. For this reason, this appeal is allowe d and the conviction and sentence of the appellant is set aside. He is ordered to be released from custody forthwith if not required in any other case.