1992 PLP 1502 (SCMR)

Date of hearing: 11th March, 1992. JUSTICE MUHAMMAD RAFIQ TARAR

This appeal by Gulab appellant with the leave of this Court is directed against the judgment of the Federal Shariat Court dated 12-12-1988 whereby his appeal against his conviction under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 carrying a sentence of imprisonment for life, whipping numbering 30 stripes and a fine of Rs.50,000 on each count for him, was dismissed.

2. The prosecution version is that on 17-5-1987 a raiding party comprising Ghaffar Khan Preventive Officer PNCB, Inspector Tanvirul Hanif, Inspector Maqbool Ahmed, S.I. Bashir Ahmed and Muhammad Ali Durram, DSP, on receipt of secret information held a Nakabandi at Ayub Stadium, Quetta, The raiding party chased two "suspected persons" appearing from Aspini road side and surrounded them. They were Gulab appellant and his companion Taj Muhammad, The appellant was holding a bag which was taken into possession by the raiding party and was found to contain 10 cloth bags each containing 1 kg heroin. Heroin weighing one gram was taken from each bag and made into a separate parcel. The 10 sample parcels were then put in a big packet and sent to the Chemical Examiner for chemical analysis. The report received from him was positive.

3. At the trial Ghaffar Khan P.W. 1 and Maqbool Ahmed P.W.3 supported the recovery of heroin from the appellant. Mubarak Shah, Incharge Forensic Science Laboratory appearing as P.W.2 stated that lie received -10 grams heroin contained in 10 packets of one gram each and alongwith Chemical Expert Shahban Ali performed chemical analysis and issued certificate Exh. PB with his signatures and those of Shahban Ali on 24-5-1987.

4. The appellant pleaded not guilty to the charge and stated that he was falsely implicated due to enmity with Maqbool Ahmed; P.W. who had once raided his house cart and finding nothing incriminating threatened him with dire consequences. He also made statement under section 340(2) of the Cr. P.C. on oath wherein he stated that on the day of occurrence he was coming from Samungli on a wagon. He alighted from the wagon at 10/10-30 a.m. When he reached near the Nala an official vehicle of Narcotics Control Board came there. Maqbool Ahmed alongwith four other persons was in the vehicle. One of those persons put him in the official vehicle and they took him away and that nothing was recovered from him. Abdul Bari D.W.1 supported his version.

5. After hearing the learned counsel for the parties we find that the prosecution evidence in this case is highly unsatisfactory. Mubarak Shah, Incharge Forensic Science Laboratory in his examination-in-chief stated that 10 packets containing one gram heroin each were consumed during the chemical analysis. In cross-examination he stated that: The statement of Ghaffar Khan P.W.1 shows that the samples separated from each bag were tested at the spot. He stated that "we had tested the heroin powder in a test tube through a chemical analysis. I do not remember the name of the chemical used. After test we came to know that all the ten packets were heroin powder. I have obtained the job training in this regard". From the statement it further appears that the samples which according to the Incharge, Forensic Science Laboratory were consumed during the test, were before the Court when Ghaffar Khan was making his statement. He stated that "a big packet which contains 10 packets bears the seal of chemical examiner". After this sentence there is a note/observation as under:-- "The seal was seen and was allowed to open." Maqbool Ahmed P.W. stated that 10 samples weighing one gram each were handed over to the chemical examiner on 19-5-1987 and he received the report on 20th May, 1987. The Incharge, Forensic Science Laboratory admitted that according to the report Exh. PB the samples were received in the Laboratory on 24-5-1987 and then volunteered that the heroin (sample) was received in the Laboratory on 20-5-1987. Now there are three versions on the record. According to Maqbool Ahmed the samples were handed over to the chemical examiner on 19-5-1987, according to the Incharge, Forensic Science Laboratory the same were received on 20-5-1987 and according to the certificate Exh. PB issued by him they were received in the Laboratory on 24-5-1987. In cross-examination Maqbool Ahmed admitted shat the samples obtained in this case were not delivered at/received in the laboratory on 20th or 24th of May, 1987. In that view of the matter it could not be said with any degree of judicial certainty that the certificate/report EA. PB pertained to this case. The learned Advocate-General appearing on behalf of the State could not offer any explanation for this confusion.

6. We have also noted with concern that in this case raid was conducted on information which had been received much earlier but no effort was made to associate any person from the public. It was not a case of raid in a jungle or on a highway but in a big city. Out of five official witnesses only two namely Ghaffar Khan and Maqbool Ahmed were examined. The recovery memo was signed by Ghaffar Khan and Tanvirul Hanif but the latter was not produced and statement of Ghaffar Khan was admittedly recorded by the investigating officer namely Maqbool Ahmed on the next day. Maqbool Ahmed did not offer any explanation why his statement was not recorded soon after the raid. The statement of Maqbool Ahmed further shows that the heroin allegedly recovered from the appellant in 10 bags was not produced in Court on 4-11-1987 when he made his statement at the trial.

7. In view of the infirmities pointed out above we feel inclined to hold that the prosecution has not been able to prove its case against the appellant. We, therefore, allow this appeal, set aside the conviction and sentences of the appellant and acquit him of the charge. He shall be set at liberty forthwith if not required to be detained in any other case. M.B.A./G-364/S Appeal allowed.