2008 P Cr (PLP)

SYED SPIABBAR RAZA RIZVI, J.

This criminal appeal has been filed against the judgment, dated 22-5-2007 delivered by the learned Additional Sessions Judge/Judge Special Court, Hafizabad. The appellant was convicted and sentenced under section 9(c) of C.N.S.A., 1997 to three years' R.I. with fine of Rs.5,000 in default of the payment of fine, to further undergo simple imprisonment for two months. Benefit of section 382-B, Cr.P.C. was also given to him.

2. The appellant was involved in F.I.R. No.636 of 2006, dated 5-9-2006 registered at Police Station City Hafizabad under section 9(c) of C.N.S.A. of 1997 on the complaint Exh.P.A. made by Safdar Hussain, S.-I. (P.W.3) on 5-9-2006. According to the complaint Exh.P.A. the complainant received a spy information while he was duty officer of Police Station Hafizabad. Following the information he formed a raiding party comprising Bashir Ahmad, S. I., Zafar Khan, S.-I., Shamsher Khan, A.S.-I., Saif Ullah A.S.-I. Ghulam Mustafa 419/HC, Abdul Sattar 65/C, Ihsan Ullah 184/C, Najib Ullah 148/C. The raiding party found the appellant and another one on the college road riding motor bicycle No.7270/SAD. Co-accused Mudassar Riaz was driving the motor bicycle and the present appellant was sitting behind him carrying a polythene shopper having heroin, in his hand. They were caught and on search got recovered heroin weighing 1300 grams. A rifle .222 was also recovered from the co-accused Mudassar Riaz and a separate complaint under section 13/20/65, A.O., was also prepared and was sent for registration of formal F.I.R. The heroin weighing 1300 grams was taken into possession vide recovery memo. Exh.P.B. and out of the said recovered heroin 10 grams was separated for chemical analysis. The complaint Exh.P.A. was sent to the police station and the F.I.R. was formerly registered by Bashir Ahmed, S.-I. (P.W.1) and investigation of the case was handed over to Bashir Ahmed S.-I./Incharge Investigation (P.W.6). The appellant further disclosed that he had some other quantity of heroin kept in his shop adjacent to his residence at Kot Sarwar. He got recovered another sachet of 2350 grams heroin for which a separate F.I.R. No.556 of 2006 was registered at Police Station Sukheke. After completion of investigation, the appellant was found guilty and his co-accused was found innocent by the police and his name was placed in Column No.2 and challaned but he was also summoned by the trial Court vide order, dated 10-11-2006. Both the appellant and co-accused Mudassar Riaz were charge-sheeted on 8-12-2006.

3. At the very outset the learned counsel referred to the Chemical Examiner's Report. According to the chemical report, the packet which was sent to the Chemical Examiner did not contain heroin. According to the learned counsel for the appellant in the presence of the said report the case against the appellant is dill of doubts, hence, the appellant deserves acquittal.

4. In the impugned order in para.6 the learned trial Court observed:-- "It is pertinent to mention here that vide report of Chemical Examiner, Lahore Exh. P. E. sample sent for chemical analysis has been resulted into negative." In para.11 the learned trial Court concluded that undoubtedly it was not denied by the accused/appellant that no such recovery was effected from him. We have gone through the statement of the appellant/ accused under section 342, Cr.P.C. where recovery has been categorically denied. There are some other contradictions in the statements of P.Ws. and also a grievance that private persons were not associated during the recovery proceedings which are not taken by us seriously. However, report of the Chemical Examiner and wrong observations of the learned trial Court that the appellant/accused never denied recovery, cannot be overlooked.

5. The above mentioned true facts cast a serious doubt, thus, it cannot be believed that prosecution succeeded to prove its case beyond any shadow of doubts; therefore, this appeal is allowed and order of the learned trial Court, dated 22-5-2007 is set aside. The appellant shall be released immediately, if not required in any other case. H.B.T./M-628/L Appeal allowed.