Hameedullah vs The State

ROZI KHAN BARRECH, J. The appellant Hameedullah son of Qadir Bakhsh has filed the Criminal Jail Appeal No. 06 of 2020 under Section 48 of the Control of Narcotics Substances Act, 1997 (hereinafter "the Act") against the judgment dated 30.09.2020 (hereinafter "the impugned Judgment") passed by the learned Special Judge CNS Naseerabad at Dera Murad Jamali ("trial court") in case FIR No. 11/2020 PS Shaheed Aziz Bulo Nautal registered under section 9-c of the Act whereby the appellant has been convicted under section 9-c of the Act and sentenced to suffer Rigorous Imprisonment for life with fine of Rs.100,000/- and in default whereof to further undergo Simple Imprisonment for one year with benefit of Section 382-B, Cr.P.C.

Pertinent to mention here that the appellant filed the Criminal Jail Appeal No. (S) 06 of 2020 on 14.10.2020 before this court and same was admitted for regular hearing. Meanwhile, the learned counsel for the appellant filed the Criminal Appeal No. (S) 18 of 2020 on 07.12.2020 against the same judgment. Since the jail appeal has already been filed by the appellant through Superintendent Central Prison Mach, therefore the second appeal i.e. Criminal Appeal No. (S) 18 of 2020 is not maintainable, consequently the Criminal Appeal No. (S) 18 of 2020 is hereby dismissed being not maintainable.

2. Brief facts of the case are that on 03.03.2020 the complainant Habibullah Lashari SI/CIA registered the aforesaid FIR with the allegation that on the same date he along with other police officials during checking of vehicles with prior information from the informer at Achanak Hotel at 06:30 pm intercepted a 2-D Car coming from Quetta side. The driver of the vehicle disclosed his name as Hameedullah son of Qadir Bakhsh. The search of the vehicle resulted into recovery of 300 packets of baked charas each weighing one kilograms from the driving seat, front set, beneath the rear seat, doors and switch board of the vehicle. The recovered contraband were taken into possession and sealed into parcel in the presence of the witnesses. Hence, the crime report.

3. On completion of investigation, challan of the case was submitted before the trial Court, whereby the appellant was charge sheeted to which he did not plead guilty and claimed trial. The prosecution in order to substantiate its case produced three witnesses in all, whereafter the statement of the accused was recorded under section 342 Cr.P.C, wherein he professed his innocence. The accused got recorded his statement on oath as envisaged under section 340 (2)

Cr.P.C but did not produce any witness in his defense.

4. The trial court, after conclusion of the trial, found the appellant guilty of the charge and while recording his conviction sentenced him as mentioned above. Hence, the Criminal Jail Appeal No.

(S) 06 of 2020.

5. We have heard the arguments advance by learned counsel for the appellant, the learned APG and have also gone through the record of the case.

6. It has been noticed that the occurrence took place on 03.03.2020 at 6:30 pm as the complainant lodged the report (Ex.P/3-A) at 8:30 pm on the same day after an unexplained delay of two hours.

This delay raises eyebrows qua veracity of the case and, signals towards consultation, concoction, inducement and procurement on the part of the prosecution in this regard.

7. We have also noticed that it is the prosecution's case that the samples were transmitted to the office of Forensic Science Laboratory Crimes Branch Quetta but the safe custody and transmission could not be proved by the prosecution because according to FSL report (Ex.P/3-D) the sample of Charas was received on 13.03.2020 through Muhammad Luqman SI with delay of ten days and such delay has not been explained.

8. As per Rule, 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, this exercise was required to be completed within 72 hours of the recovery, and for this purpose even there is no plausible explanation brought on record by the prosecution as to why such inordinate delay was caused in the completion of this exercise by the Investigating Officer. This is fatal to the prosecution case. In this regard, reference can be made to the case of Muhammad Aslam v. The State reported in 2011 SCMR 820 and Shamsullah v. The State 2013 MLD 1527.

9. The prosecution has also failed to examine the Muhammad Luqman constable who had taken the sample of the Chemical Examiner, so that he could have been cross-examined on the point as to in whose custody the sealed parcel of the samples of Charas were lying about ten days. The prosecution also did not produce the Head Mohrar of the police station about keeping the parcel in. Malkhana. PW-3, who conducted the investigation of the case, also did not state a single word as to when he handed over the parcels to the Head Mohrar, who allegedly kept the same in the Malkhana in safe custody for ten days, which makes the case doubtful and any doubt if arises in the links of the chain of prosecution story, the benefit of the same will go to the accused. In this regard reliance is placed in the case of Mst. Razia Sultana and others v. The State 2019 SCMR 1300.

10. In view of the above, we have reached at the conclusion that the prosecution in the instant case could not prove prompt registration of the FIR, and safe custody and transmission of the representative samples to Government Analyst also could not be proved. Thus, the prosecution has failed to prove its case against the appellant. In this scenario, there is no need to discuss defense version.

Since the prosecution has failed to bring home the charge against the accused/appellant, therefore, the Criminal Jail Appeal No. (S) 06 of 2020 is hereby accepted. Consequently, the impugned judgment dated 30.09.2020 passed by learned Special Judge under the CNS Act, 1997 in Special CNS Case N. 06/2020 is set aside. The appellant Hameedullah son of Qadir Bakhsh is acquitted of the charge under Section 9-c of the CNS Act, 1997 in FIR No. 11 of 2020 PS Shaheed Aziz Bulo, Nautal. He is directed to be released forthwith if not required in any other case.