2008 PLP 1562 (YLR)

SH. ABDUL RASHID, J.--Muhammad Younis appellant was tried in a case F.I.R. No. 455 dated 18-8-1997 under section 9(b) Control of Narcotic Substances Act, 1997 registered with police station Factory Area Faisalabad by Sana Ullah Khan Addl. Sessions Judge Faisalabad who vide judgment dated 13-3-2004 convicted the appellant under the offence mentioned above and sentenced him to 5 years' R.I. with fine of Rs. 20,000 in default of payment of which to further undergo R.I. for 6 months while giving him benOiiL of section 382-B, Cr.P.C. Feeling aggrieved of his conviction and sentence the appellant has filed this appeal.

2. Briefly stated the facts of the prosecution case are that on 17-8-1997 Ghulam Muhammad A.S.-I. of Police Station Factory Area Faisalabad received secret information that the appellant was selling narcotics in the area of Gahu Shala Morr, Faisalabad, and consequently he raided him and recovered from his custody 1000 grams of Charas. Out of the said quantity of Charas 10 grams contents were made into a seated parcel and was sent to the office of the Chemical Examiner for analysis whose report confirmed the contents of the same to be that of Charas. The narcotic was taken into possession and the sample sealed parcel was prepared vide memo. which was attested by Umar Hayat A.S.-I. and Arif Raza Constable. Upon completion of the investigation the appellant was challaned and was charged under section 9(b) of the Control of Narcotic Substances Act 1997, which was reads over to him to which he pleaded not guilty and claimed to be tried.

3. Consequently, the prosecution had produced Nazir Hussain Head Constable, Moharrir, P.W. Arif Raza Constable P.W.2, Umar Hayat A.S.-I. P.W.3 and Muhammad Rafique Constable P.W.4. The Special Public Prosecutor tendered in evidence report of the Chemical Examiner Exh. D.E. and closed the prosecution case. Then statement of the appellant under section 342, Cr.P.C. without oath and all the incriminating prosecution evidence was put to him which he refuted and upon conclusion of the trial the appellant had been convicted as mentioned above. Feeling aggrieved, the appellant has filed this appeal.

4. From the prosecution evidence on the record it is borne out that Ghulam Muhammad A.S.-I. had raided the appellant and had recovered the narcotic substances, prepared the recovery memo and thus he had practically conducted the entire investigations. It has been held in Muhammad Yasin v. The State 2004 YLR 1303, Lahore that the investigations carried out by an A.S.-I. were violative of sections 21 and 22 of the Control of Narcotic Substances Act 1997 and officer below the rank of Sub-Inspector of Police could not seize in any public place and had no authority to search and arrest a person for recovery of narcotics; proceedings of search, arrest and recovery, could not be processed or carried out by Assistant Sub-Inspector of police and recovery memos. prepared by him carried no legal force and accused on basis of investigations carried out by said officer could not be convicted. Therefore, in keeping with the said principle the prosecution has failed to prove its case against the appellant the appellant in a legal 6-tanner, therefore, by accepting this appeal the conviction and sentence of the appellant is set-aside and he is acquitted of the charge. He shall be released from prison forthwith in case he is not involved in any another case. N.H.Q. /M-547/L Appeal accepted.