2005 P Cr (PLP)

NASIR-UL-MULK, C.J.

The appellant was convicted by the Additional Sessions Judge, Mardan on 4-9-2004 under section 9 of the Control of Narcotic Substances Act, 1997 (C.N.S.A.) and sentenced to suffer one year's R.I. and a fine of Rs.1,000 in default whereof, to further suffer one month's S.I. The appellant has filed this appeal against his conviction and sentence.

2. The case against the appellant was registered on 23-4-2002 on the report of Fatehmand Gul Bacha, S.H.O. of Police Station Rustam, District Mardan. He reported that he had received information that Qaseem (appellant), an employee of a hotel by the name of Karamar Hotel, was engaged in the sale of narcotics. He, therefore, along with police party raided the hotel and found the appellant in it. Upon his search, one kilogram of Charas was recovered from his pocket, out of which 4 grams was separated and sealed in a parcel for dispatching the same to the Forensic Science Laboratory. The remaining narcotics were sealed in a separate parcel. The appellant was arrested and the case registered.

3. At the trial the appellant pleaded not guilty. The prosecution produced three witnesses. P.W. Faiz Muhammad was the Muharrir who registered the F.I.R. on the basis. of the Murasila dispatched by the S.H.O. The S.H.O., who is also the Investigating Officer, was examined as P.W.2 and the witness to the recovery Khan Baig A.S.-I. testified as P.W.3. The accused in his statement under section 342, Cr.P.C. simply denied all the allegations and alleged that the case was fabricated by the S.H.O. who was annoyed with him because on the instructions of the employer he had refused to provide the S.H.O. with free drinks and foods.

4. The learned counsel appearing for the appellant went through the entire evidence and brought to light the contradictions in the statements of the Investigating Officer and the marginal witness. He submitted that the narcotics were received by the Forensic Science Laboratory after a delay of one month and no explanation has been put forth by the prosecution for the delay.

5. The learned A.A.-G. appearing for the State argued that the narcotics were recovered from the physical possession of the appellant. That the F.S.L. report is in the positive and there is no evidence of ill-will of the S.H.O. against the appellant.

6. There are significant contradictions in the prosecution evidence. Whereas the Investigating Officer had stated that the raid on the hotel was conducted at 1-00/1-30 p.m., the marginal witness categorically stated that the incident took place in the morning. Whereas the Investigating Officer alleged that the Charas was recovered from one Pocket, the marginal witness claimed that the recovery was effected from two pockets of the appellant. Since only 4 grains of Charas had been separated for chemical examination, if the version of the marginal witness is accepted, then there is no further clarification as to how much narcotics were recovered from each pocket and from where 4 gram was separated for dispatching to the Forensic Science Laboratory. Additionally, the Investigating Officer had stated in the cross-examination that the parcel produced in Court in which the narcotics were packed, was not scaled, whereas in the F.I.R. the Investigating A Officer had stated that the narcotics had been sealed in a separate parcel. Thus, the seal of the parcel had gone amiss. The sample of the F.S.L. was separated soon after the incident on 23-4-2002, whereas the parcel was received, according to the F.S.L. report, on 20-5-2002 at the Laboratory and no explanation has been given for this delay. In view of the above evaluation of the prosecution evidence, the prosecution case suffers from reasonable doubts, the benefit of which must be extended to the appellant. The appeal is allowed, the conviction and sentence of the appellant are set aside and he be set at liberty forthwith if not required in any other case. H.B.T./502/P Appeal allowed.