2009 PLP 1307 (YLR)

RAHMAT HUSSAIN JAFFERI, J.

Brief facts giving rise to the present appeal are that on 31-5-2006 at 11-30 a.m. near Chotaro, Bathoro Road Culvert, District Thatta, the appellant was found in possession of 115 grams of charras which were secured by the policy party. 10 grams of charras were separated for sending the same to the chemical Analyzer. The report was in positive, therefore, the appellant was challaned in the Court. The learned Special Judge, Control of Narcotic Substances, Thatta tried the appellant, convicted him for offence punishable under section 9(b) of Control of Narcotic Substances Act, 1997, sentenced him to suffer R.I. for six months and fine of Rs.1000 or in default thereof, to suffer S.I. for one week with benefit of section 382-B, Cr.P.C. We have heard the advocate for the appellant, A.A.-G. for the State and perused the record of this case very carefully. The learned advocate for the appellant has mainly argued that the sample sent to the Chemical Analyzer was different from the sample prepared at the scene of incident, therefore, the Chemical Analyzer's report carries no weight and without such report, it cannot be held that the remaining property was charras, therefore, the prosecution has failed to prove the case. The learned A.A.-G. has conceded the above position and has not supported the impugned judgment. At the trial the prosecution examined two witnesses viz. the complainant and mashir. They stated that 115 grams of charras were secured from the possession of the appellant, out of which, 10 grams were separated as sample for sending them to the Chemical Analyzer for examination and report. In the cross-examination, the mashir P.W. deposed that only one piece weighing 10 grams of charras was separated, which was sealed in a white piece of cloth for sending it to the Chemical Analyzer. The complainant P.W.2 in the cross-examination stated that he sealed three pieces of charras weighing 10 grams in brown envelope for sending it to the Chemical Analyzer. From the above statements of both the witnesses, it is clear that they have falsified each other with regard to the pieces of charras and the material in which it was sealed. The Chemical Analyzyer's report has been produced which shows that the expert received one sealed brown envelope containing one piece of charras weighing 10 grams. The said report is not tallying with the pieces of the charras stated by the complainant. As according to him, he sealed three pieces of charras. The said report is also not tallying with the statement of mashir with regard to the material in which the charras was sealed, as according` to the report, the expert received a brown envelope duly sealed, whereas the mashir deposed that the sample was sealed in a white piece of cloth. Thus, a doubt has been created with regard to the preparation of sample at the place of incident and the sample received by the Chemical Analyzer. After considering the material available on the record, we are of the considered view that the sample received by the Chemical Analyzer appears to be different from the sample prepared at the scene of incident, as such, it will not represent the entire property involved in the case, hence the prosecution has failed to prove that the property was charras. The report of Chemical Analyzer in the circumstances of the present case is not helpful to the prosecution in any manner. Thus, the prosecution has failed to prove the case against the appellant beyond any reasonable doubt. Above are the reasons of our short order, dated 11-10-2007, by which we had allowed the appeal. H.B.T./A-49/K Appeal allowed.