1993 P Cr (PLP)

NAZIR AHMAD BHATTI, J.

This appeal is directed against judgment, dated 25-4-1992 of Additional Sessions Judge, Kasur camp at District Jail, Kasur whereby the appellant Iftikhar alias Gattu was convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and was sentenced to undergo life imprisonment, to suffer 30 stripes and to pay a fine of Rs.10,000 or in default to further undergo rigorours imprisonment for 2 years. The appellant has challenged his conviction and sentence by the appeal in hand.

2. The appellant was already under custody with complainant Rab Nawaz, Sub-Inspector, C,LA. Pattokey in a case of F.I.R. No.35/91 when on 5-2-1991 he voluntarily stated that he had concealed Charas and opium in an iron trunk which was buried underground in a room of his Dera, and he could get the same recovered. The complainant arranged a police party which was led by the appellant to his house and he himself pointed out the place where he had buried the iron trunk, which was dug out by the police party. Its lock was opened and Charas weighing 17 kilograms contained in 17 packets of one kilogram each and opium weighing 3 kilograms contained in three packets of one kilogram each were recovered. The complainant separated 15 grams of Charas and opium separately for chemical analysis and made a separate parcel. He also arrested the appellant in the case in hand and sent written complaint to Police Station Sarai Mughal for registration of the case.

3. After investigation the appellant was sent up for trial before the learned Additional Sessions Judge, Kasur who charged him under Article 4 of the Prohibition Order to which he pleaded not guilty and claimed trial.

4. Appearing as P.W.5, the complainant Rab Nawaz Sub-Inspector, deposed that the appellant was already under custody with him in another case when on 5-2-1991 he volunteered to get recovered Charas and opium from his house and he himself led the police party and pointed out the place where he had hidden the aforesaid narcotics in a trunk. The complainant further stated that the place was dug by the police party and trunk was recovered from which 17 packets of one kilogram each Charas and "about" 3 kilograms of heroin were recovered from the trunk. He further stated that he had taken out samples of Charas and heroin which were sent to the office of the Chemical Examiner.

5. From the above deposition of the complainant it shall be seen that he had not deposed about recovery of any opium and instead he had deposed that Charas and heroin were recovered. Whereas samples of Charas and opium were sent to the Chemical Examiner which on chemical analysis were found Charas and raw opium.

6. According to the testimony of the complainant 17 packets of Charas and 3 packets of heroin were recovered but he sent only 2 samples one of Charas and the other of heroin. This would show that he had taken out sample from only 1 packet of Charas and from one packet of heroin. It had also come in the evidence that the narcotics which were allegedly recovered from the house of the appellant were not produced in the Court during the trial. It could not, therefore, be ascertained as to from which packet of Charas and from which packet of heroin the samples were taken.

7. There is no report of the Chemical Examiner with regard to heroin alleged to have been recovered alongwith Charas from the house of the appellant.

8. It was imperative on the part of the complainant/investigating officer that he should have taken sample for chemical analysis from each packet of the narcotics allegedly recovered from the house of the appellant but he did not do so. He obtained sample from one packet of Charas and from one packet of heroin and those packets were also not produced in evidence to prove the recovery. If the testimony of the investigating officer is taken into consideration then no opium was recovered from the house of the appellant. So, the report of the Chemical Examiner about one sample containing raw opium could not be connected with the case in hand. According to the investigating officer heroin was recovered alongwith Charas but there is no report with regard to the sample of the heroin sent to the Chemical Examiner. As such the report of the Chemical Examiner with regard to raw opium was invalid while there was no report of the Chemical Examiner with regard to heroin.

9. The offence of being found in possession of Charas and opium was not proved against the appellant beyond any doubt whatsoever. Consequently the appeal is accepted. The conviction and sentence of the appellant recorded on 25-4-1992 passed by the learned Additional Sessions Judge, Kasur are set aside and he is acquitted of the offence for which he was convicted and sentenced. He shall be set at liberty forthwith if not wanted in any other case. N.H.Q./801/FSC Appeal accepted.