Muhammad Shoaib and another vs The State

SARDAR TARIQ MASOOD, J. The petitioners Muhammad Shoaib (Crl. P. No. 496/2018) and Arshad Mehmood (J. P. No. 441/2018) faced trial in case FIR No. 577 dated 27.09.2013, offence under section 9(c) of the Control of Narcotic Substances Act, 1997 (Act, 1997) registered at Police Station Serdehri, District Charsadda. On the conclusion of trial, the learned Sessions Judge/Special Court (CNS), Charsadda, vide judgment dated 03.06.2015, convicted them under section 9(c) of the Act, 1997 and sentenced to imprisonment for life with fine of Rs.1,00,000/- each or in default of payment of fine to further undergo six months' simple imprisonment each. Benefit of section 382-B, Cr.P.C. was also extended to him. Aggrieved of their conviction and sentence, the petitioners filed a Criminal Appeal before the Peshawar High Court, Peshawar and the learned High Court, vide impugned judgment dated 26.02.2018, dismissed the said appeal Hence, the instant petitions for leave to appeal by the petitioners.

2. After hearing the learned counsel for the petitioners, learned Additional Prosecutor General, KPK and perusal of the available record as well as the impugned judgment it has been observed by us that although Jahangir Khan, H.C. (PW-1) claimed that complainant had handed over the sample parcels to him which he further handed over to Moharrar Investigation for safe custody for sending them to Forensic Science Laboratory, Peshawar. The said Moharrar Investigation who according to Jahangir Khan, H.C. (PW-1) kept the sample parcels in safe custody was never produced by the prosecution. So the safe of sample parcels was not established by the prosecution. Ajmal Khan, Constable, who allegedly took the sample parcels to the concerned laboratory was also not produced. In that eventuality, prosecution failed to establish safe custody and safe transmission of the sample parcels to the concerned quarter and the prosecution could not give any plausible explanation for not producing said important witnesses. The said defect in the prosecution case goes into the root of the case creating serious doubt regarding the narcotics and its recovery. This Court in the cases of Khair-ul-Bashar v. The State (2019 SCMR 930), The State through Regional Director ANF v. Imran Bakhsh and others (2018 SCMR 2039), Taimoor Khan and another v. The State and another (2016 SCMR 621), Ikramullah and others v. The State (2015 SCMR 1002) and Amjad Ali v. The State (2012 SCMR 577) has held that in a case containing the above mentioned defect on the part of the prosecution it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond any reasonable doubt.

3. The Datsun being registration No. 528/LHN from which the contraband was recovered, learned counsel for the petitioners categorically stated that petitioners never claimed the possession or ownership of the said vehicle and he will not claim the same at any subsequent stage.

4. For the forgoing reasons, these petitions are allowed. The impugned judgment is set aside and petitioners Mohammad Shoaib and Arshad Mehmood, while extending benefit of doubt to them, are acquitted of their charge in the instant cases. They shall be released from jail forthwith if not required to be detained in connection with any other case.