P L D 2005 Peshawar 197 (PLP)

SHAH JEHAN KHAN YOUSAFZAI, J.

Appellant Noorab son of Mir Ahmad charged under section 9(c) of the Control of Narcotic Substances Act, 1997 (CNSA) vide F.I.R No.252 dated 6-4-2003 Police Station Badhber, District Peshawar was tried by the learned Additional Sessions Judge-IX Peshawar who vide his judgment dated 27-1-2005 having found him guilty, convicted and sentenced him under section 9(c) CNSA to 6 years' R.I. and a fine of Rs.80,000 or in default to undergo further six months S.I. Benefit of section 382-B Cr.P.C., was also extended to the appellant. Feeling aggrieved of his conviction and sentence the appellant has moved the instant appeal.

2. Facts of the prosecution case are that on 6-4-2003 at 17-40 hours Sher Zaman, then S.H.O. Police Station Badhber while on `gasht' with the police party apprehended the appellant at Bhata Thal Khwar on suspicion who was holding an envelope of black-colour in his hand. On search of the envelope Charas weighing 2 kilograms was recovered. Out of the lot two samples of Charas weighing four grams each were separated and sent to Forensic Science Laboratory for analysis and opinion, report whereof is Exh.PZ, while the remaining Charas was taken into custody through a separate parcel. The appellant was arrested and a case under the aforementioned section of law was registered against him.

3. On conclusion of the investigation complete challan was submitted in Court against the appellant. Formal charge was framed against the appellant who pleaded not guilty to the charge and claimed trial.

4. In order to bring home guilt to the appellant, the prosecution produced three witnesses in support of its case. The appellant when examined under section 342, Cr.P.C denied the charges and pleaded innocence. He did not opt either to be examined on oath or to produce any evidence in defence.

5. We have heard Mr. Noor Alam Khan, Advocate for the appellant, Mr. Abdul Karim Khan, Advocate representing the State and have also perused record of the case with their assistance.

6. It is contended by the counsel for the appellant that prosecution evidence is contradictory, no impartial investigation was conducted, samples were not taken from each of the slabs and the samples were sent to F.S.L. after more than six months which is against the provision contained in Rule 4 which provide for a period of not more than 72 hours from recovery.

7. P.W.3 has stated that the appellant was holding a black bag containing Charas in his hand while P.W.2 has contradicted him by saying that the appellant had tied Charas with his foot by means of plastic tape and it was hidden. Both the eye-witnesses have admitted that the place of recovery is thickly populated area and public was easily available to join the investigation but no efforts whatsoever was made by the police official to associate any person from the public at the time of recovery or subsequent investigation P.W.2 has stated that the Investigating Officer prepared the Murasila at the time of recovery and nothing else was done on the spot. After drafting the Murasila the Investigating Officer sent the same along with appellant for registration A of the case through Head-constable. The Charas was stated to be in shape of two slabs wrapped in a black plastic. He admitted it correct that separation of samples on the spot and sealing the same is not mentioned in his statement recorded under 161, Cr.P.C. He has admitted that at the time of recovery and separation of samples, no case was yet registered by strangely enough the recovery memo. Exh.PC bears the number of F.I.R. The Investigating Officer, P.W.3 has attempted to overcome the said objection by saying that being an S.H.O. he was knowing the current number of F.I.R. book. Though the witness was not in a position to give the exact time of signing the recovery memo. in the Police Station but unambiguously he has admitted that recovery memo. Exh.PC was signed by him in the Police Station. All these facts brought on record create serous doubt in the prosecution case benefit whereof shall go to the appellant. The prosecution evidence are contradictory to each other on material aspect.

8. The Investigating Officer, P.W.3 has stated that the Charas recovered from the appellant was in shape of two slabs lying in the shopping bag and each slab was consisting of sub-slabs. The samples were separated from two sub-slabs. During trial two slabs were produced before the Court which were opened on the request of counsel for the appellant and one of the slab was containing 13 sub-slabs and the other one was containing 4 sub-slabs. Although the witness has deposed that samples were taken from each sub-slabs but the quantity of sub-slabs is neither mentioned in the Murasila nor in the recovery memo. The marginal witness of the recovery memo. has stated that the total recovered contraband Charas from the person of appellant was found two KGs on weighment which were lying in black shopping bag. He has further clarified that the same was in shape of two slabs/packet and four grams from each packet was separated and sealed into a parcel containing three monograms of GK on each parcel. If one of the slab/packet was containing 13 sub-slabs and the other one was containing 4 sub-slabs then each of the sub-slabs would be about 118 grams in each sub-slabs. Even if one gram is separated from each sub-slabs total shall comes to 17 grams while the I.O. has separated four grams from each of the two slabs/packets, thus it cannot be concluded with certainty that sample from each sub-slab was separated for examination through F.S.L. The omission to obtain samples from each sub-slab caused serious doubtlB on the case of prosecution, benefit whereof shall go to the appellant.

9. The recovery was effected on 6-4-2003 through Exh.PC and the same was sent to F.S.L. on 17-10-2003. There is no application to F.S.L. for examination of the samples allegedly separated through Exh.PC. The Investigating Officer has stated in his statement before the Court that he entrusted the recovered contraband including the separate samples sealed separately on the spot to Moharrir of the Police Station but this assertion is not supported through documentary evidence. The Investigating Officer has not explained that how he in contravention of rule 4 sent the samples to F.S.L. beyond 72 hours of the recovery. It is mandatory for the Investigation Officer to send the sample of recovered contraband to the F.S.L. but not later than 72 hours. Although there is no provision for contravention of the rules but unnecessary delay in sending the sample to F.S.L. beyond 72 hours could be considered a material circumstance in favour of accused coupled with the overall facts and circumstances of the case. If the investigation conduced on the spot C and subsequently is found not impartial, shall create a reasonable doubt in the case of prosecution its benefit shall go to the accused. Non-associating the public despite availability coupled with sending samples from some of the sub-slabs to the F.S.L. for examination and report and the delay in sending samples are such material aspect of the case which benefit must go to the appellant.

10. In view of the aforesaid discussion, we found that case of the prosecution is not only doubtful but unexplained delay in sending samples to F.S.L. creates further doubt in the case of prosecution. We while extending the benefit of doubt to the appellant in view of the aforesaid discussion, accept this appeal against his conviction and sentence, set aside the impugned judgment dated 27-1-2005 and acquit the appellant of the charge. He be released from custody provided his custody is not required in any other case.

11. These are the reasons for short order announced on 23-2-2005. H.B.T./422/P Appeal accepted