Muhammad Deedar vs State

Abdul Hameed Baloch, J.--This Criminal appeal is directed against the judgment dated 08.04.2019 (impugned judgment) passed by the Model Criminal Trial Court/Special Judge Narcotics, Pishin (trial Court), whereby the appellants was convicted under Section 9(c) of the Control of Narcotics Substances Act, 1997 ("the Act") and sentenced to suffer Rigorous Imprisonment (RI) for life with fine of Rs. 50,000/-(Rupees fifty thousand), in default whereof, further directed to undergo four (04) months Simple Imprisonment (SI) with benefit of Section 382-B of Criminal Procedure Code, ("Cr.P.C.").

2. Brief facts leading to file the instant appeal are that on 18.1.2019 at about 4:30 p.m complainant Naseebullah Khan Risaldar Major lodged an FIR No. 02/2019, at Levies Station Saranan, alleging therein that on the fateful day at about 4:00 p.m he along with other levies officials were on routine patrolling when they made a blockade at Mughal Chur near Refugees Graveyard. Meanwhile a vehicle bearing Registration No. ATM-378 coming from Saranan side driven by the appellant/accused was intercepted. On search 100 packets of baked charas (each packet weighing 1000 grams total 100 kilograms) were recovered from secret cavities of the vehicle, which were taken into possession through vide recovery memos.

3. After completion of investigation the challan was submitted before the trial court, whereby charge was framed and read over to the appellant to which he did not plead guilty and claimed trial. Thereafter the prosecution led its evidence to substantiate the charge. On completion of prosecution evidence the appellant was examined under Section 342 Cr.P.C wherein he once again professed his innocence. The appellant did not record his statement on oath as envisaged under Section 340 (2) Cr.P.C nor produced any witness in his defence. On conclusion of the trial the appellant was convicted in the aforesaid terms. Hence this appeal.

4. Learned counsel for the appellant contended that the appellant is innocent and has not committed any offence whatsoever and he has falsely been implicated by the prosecution; that nothing has been recovered from the possession of the appellant and he has no concerned with the alleged narcotics; that no independent witness was associated to established the charge against the appellant; that there is no evidence in respect of ownership of the vehicle, from which the alleged charas was recovered; that in the pictures appeared in the newspaper in respect of said recovery clearly shows that the case property was placed on the table in open shape at levies station and same has been admitted by PW-2 in his cross- examination; that the prosecution has failed to establish the charge against the appellant but the trial court without appreciating the material available on record in its true perspective and has wrongly convicted the appellant. He therefore urged for acquittal of the appellant.

5. Conversely, learned DPG defended the impugned judgment on the ground that the appellant was apprehended when he was carrying the narcotics in the vehicle; that there is no personal grudge of the police with the appellants; that despite lengthy cross-examination, the prosecution witnesses were not shaken and they remained firm on their deposition. He lastly urged for dismissal of the appeal.

6. We have heard learned counsel for the parties and have also perused the record with their able assistance.

The perusal of record reveals the levies force conducted raid and recovered ten packets backed charas (total 100 kilograms charas) from the secret cavities of the vehicle. The prosecution has produced three witnesses before the trial court. According to prosecution after recovery of 100 packets of charas, ten grams from each packet were extracted and sealed into separate parcels for chemical analysis, while rest of the charas were sealed in a separate parcel at the spot but during course of cross-examination the PW/2 in reply to question states as under: {{URDU TEXT}}

7. Since according to the prosecution story the contraband were sealed at the spot but the referred cross clearly negated the prosecution version, thus such contradiction in the statements of prosecution witnesses is enough to put question on the veracity of prosecution case. Reliance is placed on a case of Minhaj Khan v. State 2019 SCMR 326.

8. As far as the ownership of the vehicle is concerned, the prosecution has failed to bring on record registration documents or to prove connection of the appellant with the vehicle in question. Mere utter word of mouth is not enough to prove the nexus of the appell ant with the vehicle in question. In this regard reliance is placed on the case of Ghulam Sarwar v . State 2015 PCr .L.J).

9. The record further transpired that the FIR has been lodged on 18.01.2019 while the sample has been received by the Forensic Science Laboratory Crimes Branch Balochistan, Quetta on 24.01.2019 after delay of six days without any explanation. Under such circumstances, it cannot be reconciled from perusal of record that the alleged contraband article recovered on 18.01.2019, was remained in safe custody till its receipt to the Laboratory on 24.01.2019. The record is silent that during intervening period till its receipt by the laboratory, in addition to a safe custody, whether the same was safely transported/ transmitted and no tempering was committed or otherwise? Since, the prosecution case is hopelessly silent on this aspect of the case, therefore, chain of custody , safe custody and safe transmissions are altogether missing, which creates serious doubts in the whole prosecution's case. Reliance is placed on a case of Khair-ul -Bas-har v . State 2019 SCMR 930 .

For the foregoing reasons. we are of the considered, opinion that to the extent of absence of full protocols to the tests applied, there was non-compliance of rule 6 of the Rules. Further the safe custody and safe transmission of the alleged seized contraband was also not established, as such the instant appeal is allowed and the impugned judgment dated 08.04.2019 passed by the Model Criminal Trial Court/Special Judge Narcotics, Pishin is set aside. Consequently, the appellant/accused namely Muhammad Deedar son of Niaz Muhammad is acquitted of the charge. He is in judicial custody. He be released forthwith if not required in any other case.