1995 PLP 935 (MLD)

Abdul Wakeel Butt for Appellant. Mian Abdul Qayyum Anjum for the State. Date of hearing: 8th February, 1994. Allah Rakha son of Nawab Din Qureshi has filed this appeal against the judgment, dated 30‑10‑1994 of the Civil Judge First Class/Magistrate First Class (Section 30, Cr.P.C.), Sahiwal, whereby he has been convicted under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced under both Articles to four years' R.I. fifteen stripes and a fine of Rs.4,000 and in default of payment of fine to undergo S.I. for four months more. Both the sentences have been ordered to run concurrently. There is no order about extension of the benefit of section 382‑B, Cr.P.C. I have heard Mr. Abdul Wakeel Butt, learned counsel for the appellant, and Mr. Mian Abdul Qayyum Anjum, learned counsel for the State, with whose assistance I have gone through the record.

2. According to the prosecution case, on 11‑8‑1991, a police party headed by P.W.5 complainant A.S.1. Muhammad Ejaz, who is also the Investigating Officer received spy information while on patrol duty on Shalimar Petrol Pump, Sahiwal, that a person sold heroin on motor‑cycle on Fateh Sher Colony Road in the evening. Accordingly, P.W.4 Foot Constable Ghulam Shabbir was sent for purchase of heroin as a fake purchaser. He purchased two grams of heroin from the accused out of which one gram was separated as sample and two separate parcels were prepared and sealed and taken into custody by the police. Then a raiding party was formed and a person came on the road on the same motor‑cycle. He was stopped and apprehended and from his person 300 grams of heroin was recovered wrapped in a polythene paper bag. 20 empty Puris, scale with weights and some money was also recovered. One gram of the heroin was separated for sample separate parcels were prepared for sample and remaining recovered heroin, scale, weights, signed currency notes and motor‑cycle were taken into custody by the police through recovery memos. After completion of the investigation, the appellant was challaned. In the trial, five prosecution witnesses were examined. P.W.1 Abdul Rashid is the private recovery Mashir, who did not support the prosecution stating that no recovery had been made in his presence. P.W.2 Naseer Ahmad had recorded the F.I.R. and had handed over the parcels to P.W.3, F.C. Muhammad Hayat, who had taken the parcels to the Chemical Examiner. P.WA is Foot Constable Ghulam Shabbir, the fake purchaser and A.S.I. Muhammad Ijaz, complainant and is P.W.5. Statement of the appellant was recorded under section 342, Cr.P.C. and he also examined two defence witnesses Ajaib Ali and Muhammad Shahid in support of his defence that no recovery had been made from him.

3. In this case, according to learned counsel for the appellant, there is violation of the provisions of section 103, Cr.P.C. and the only private witness Abdul Rashid did not support the prosecution. It was then argued that, according to the complaint and the evidence of the complainant/Investigating Officer Muhammad Ijaz, the weights and scale were recovered from the accused whereas, according to P.W.4 Foot Constable Ghulam Shabbir, the weights and scale were in possession of Muhammad Ijaz. The major lacuna, according to learned counsel for the appellant, was that no evidence was adduced by the prosecution that the samples taken from the heroin alleged to have been purchased and recovered from the appellant had not been sent to the Chemical Examiner. According to P.W.3 Foot Constable Muhammad Hayat who had taken the parcels to the Chemical Examiner, the Chemical Examiner had returned the parcels as the seals of the parcels were not intact. There is no other evidence as to what happened then. This could not be controverted by learned counsel for the appellant. It would, therefore, follow that the prosecution had not established that any parcel containing samples from the alleged purchased and recovered heroin were sent to the Chemical Examiner and, as a consequence, it is not established that the Chemical Examiner's report is, in fact, a report relating to the samples of the said heroin.

4. I am of the view that in the present case there is non‑compliance of the provisions of section 103~read with section 165(4) of the Code of Criminal Procedure and prosecution has also failed to establish that the report of the ' Chemical Examiner is in respect of the samples taken from the purchased and recovered heroin. .

5. As a result, this appeal is allowed, judgment dated 30‑10‑1994 of the Civil Judge First Class/Magistrate First Class (Section 30, Cr.P.C.) Sahiwal, is set aside and it is directed that appellant Allah Rakha son of Nawab Din Qureshi be released forthwith if not required in any other case. N.H.Q./944/FSC Appeal accepted.