P L D 2004 Peshawar 230 (PLP)

TARIQ PARVEZ, J.

According to the written report sent by Lt.-Col. Commandant Dir Scouts Timergara appellant Inayatullah was apprehended by Subedar Aftab (P. W.4) at 12-45 hours on 19-6-2003 and from his personal possession narcotics i.e. 5 KG opium was recovered, therefore, a case under section 9 CNSA.

2. Case was entrusted for trial to learned Judge Special Court/Zilla Qazi lower/Sessions Judge Camp Court at Samar Bagh who vide his impugned judgment authored on 24-2-2002 sentenced the appellant to ten years R.I and to a fine of Rs.30,000 and in default of payment of fine to one year S.I with benefit of section 382-B, Cr.P.C.

3. We have heard learned counsel for the appellant whose contention is that prosecution has not successfully proved the case against the appellant because alleged arrest and recovery was though made on 19-6-2003 but report was recorded on 20-6-2003 at 7 p.m. in police station Samar Bagh and until such time the narcotics recovered were not sealed. He further submits that it has been admitted by Mir Akbar (P.W.2) that the recovered narcotics were handed over to him on 28-6-2003 by Subedar Saida Gul at Tora Ghundai and when he carried out the weight it was 4950 grams and at that stage he has separated 5 grams for onward sending the same to the Chemical Examiner and in fact on that date the narcotics were sealed. He submits that Subedar Saida Gul has not been produced at the trial. His next-contention is that the report of the Chemical Examiner was received on 12-7-2003 who had received the sample on 7-7-2003.

4. Learned counsel appearing or the state, however, argued that the recovery of narcotics is proved through the statement of Lace Nike Muhammad Aftab P.W.4 and Naib Subedar Jamdar (P.W.5) who have physically arrested the accused and recovered the case property and that these two witnesses not conversant with the procedure of investigation, any irregularity would be curable under section 537 of the Cr.P.C. he further added that mere delay in sending or receiving the report of the Chemical Examiner in view of direct testimony of P.Ws.4 and 5 would not affect the case of the prosecution.

5. It is not only material irregularity in the course of investigation but there are legal omissions on the part of the prosecution which include I non examination of Lt.-Col. Commandant of the Dir Scouts on the basis of whose written report the case was registered, therefore, such report has not been proved.

6. Subedar Saida Gul who has produced the alleged recovered narcotics on 28-6-2003 was also not examined at the trial. It was he who could have proved the safe custody of the narcotics from the date of their recovery till the handing it over to the Investigating Officer. According to the statement of Aftab (P. W .4) and Naib Subedar Jamdar Khan (P.W.5) five KG opium was recovered whereas Saida Gul has produced 4950 grams of opium, thus prosecution has failed to account for 50 grams of shortage which can be inferred either not to be the case property of this case or the sample sent was planted.

7. It has been admitted by Mir Akbar (P.W.2) that though he has taken into possession the case property but from a person who was not authorized to arrest the accused or to effect the recovery. Lace-Nike Muhammad Aftab (P.W.4) admits that on 19th when the accused was arrested he did not prepare any report nor prepare any recovery memo and that he was not authorized to arrest the accused nor he was authorized to effect the recovery.

8. In view of the above legal infirmities it is held that prosecution could not legally prove the case against the appellant. His conviction and sentence are set side and he is acquitted of the charge. He be set at liberty forthwith, if not required in any other case. H.B.T.165/P Appeal accepted.