2000 PLP 2785 (YLR)

6. The report has been examined today in the Court. The date of the recovery of the alleged heroin was 15‑2‑1999 whereas the report shows that samples were received by the Chemical Examiner on 11‑3‑1999. There is a clear delay of more than three weeks in sending the contraband material to the Chemical Examiner.

7. The learned counsel for the appellant raised the following points in support of his contention that the judgment of the trial Court should not be sustained:‑‑ (i) That although 25 wrappers are said to have been recovered from the possession of the appellant, only four wrappers were sent for the opinion of the expert, thereby signifying that at least 21 wrappers could not be said to contain the heroin powder, as the contents of the same were never examined by the expert. (ii) That in spite of prior knowledge of the ASIP that he was going to search a person alleged to be selling heroin at a place known as "Kaka Nazamani Bus Stop", there was no attempt on the part of the A.S.I.P. to secure the presence of public witnesses. (iii) That it cannot be said that alleged contraband material which was lying at the police station for a long period of more than three weeks was not tampered with as the prosecution has not examined any person in whose custody the said material was lying to let the Court know that it was lying in the safe custody in a proper manner.

8. The learned counsel representing the State conceded that since specimen from each wrapper was not sent for the opinion of the Chemical Examiner, therefore, only four wrappers could at the best be considered as the heroin powder recovered from the possession of the appellant. The weight of the material contained in those four wrappers is certified to be between 3‑4 grams and thus it being less ‑ than ten grams the maximum punishment warranted was only 2 years' R.I. and the learned State Counsel conceded and contended that in this case the sentence of imprisonment should be modified and curtailed to only 2 years' R.I.

9. The learned counsel for the appellant, however, took pains to. point out that under such circumstances as in the present case the police officials will be encouraged and only on the basis of their evidence innocent citizen whom they challan in similar cases will suffer although the police had acted recklessly, ignoring the decisions pronounced by superior judiciary in similar cases. The learned counsel therefore, pressed that in a case in which the police had a prior notice of going for a search of a person or a place, it should have at least tried to comply with the provisions of section 103; Cr.P.C. and in case of the failure of the persons from the public to come forward to act as witnesses, police should have taken action provided by law viz. should have asked specific persons to act as witnesses and in case of their failure to act as witnesses should have proceeded against them for failing to help and assist the police in performance of their lawful duties. The learned counsel in this respect relied on the case of Aziz Ahmed v. The State reported in 1995 MLD 1114 in which a learned Judge of the Federal Shariat Court has observed that:‑‑ "So far as it was possible during the investigation, provisions of section 103, Cr.P.C, should be complied with as the provisions 'of section 103, Cr.P.C. were mandatory. " It was observed in the above reported case that in case it was not possible to comply with such provisions, explanation should be given ~by the police to justify non‑compliance of such provisions. The above decision was based on the case of Mirza Shah v. The State reported in 1992 SCMR 1475 and Gulab v. The State reported in 1992 SCMR 1502. From reading the evidence: of the two witnesses in this case, it is observed that the police had made absolutely no efforts in. this case to secure presence of any public witness. Although the accused was not represented, by a counsel, he himself put few questions in cross‑examination to the witnesses in trial Court. The reply of P.W. Ghulam Sarwar, the leader of the police party to a question about private. witnesses is reproduced as under:‑‑ "It is fact that I had not made private persons, in the Mushirnama because private persons do not act as Mushir. " From such reply of this witness it is clear that this witness made absolutely no efforts whatsoever to find out any public witness to act as witness in this case. The judgments referred to above viz. of the Federal ' Shariat Court and the Supreme Court, were overlooked and I consider it violation of the law laid down by superior judiciary: It is the duty of the prosecution to apprise the investigating officers of the prevalent judgments of the superior Courts so that the same should not be violated by the investigating officers. But here the police appears to be ignorant and has stubbornly violated what the superior Courts wanted the police to do in such cases.

10. About the delay in sending the contraband material for opinion of the Chemical examiner, the case of Mst. Meraj v.: The State reported in 1994 PCr.LJ 482 shows that when the record did not show that the contraband material, or the sample therefrom, was kept in safe custody and was sent to, Chemical Examiner, through any witness, such material could not be said to have not been tampered with at any stage, particularly when it was sent to Chemical Examiner after about three weeks. Here the contraband material, under similar circumstances, has not been shown to be kept in safe hands and no particular reason for its having been kept at police station or at any other place for such a long period, is shown In these circumstances, the decision of‑ the Federal Shariat Court has not been heeded to and therefore, the benefit shall have to be given to the accused. The learned counsel for the appellant has also relied on the case of Pomi v. The State reported in 1995 MLD 927 in which case it was held that the explanation of the non‑availability of the public witnesses should not be in general statement that nobody was ready to come forward to become witness. It was specifically held:‑‑ "The prosecution witnesses in this regard should make a detailed/specific statement about the efforts made, for instance, giving the names of the persons who were asked, whether any notice was given under section 103(5), Cr.P.C. to some persons who refused to become recovery Mushirs." Another authority relied on by the learned counsel for the appellant is a Full Bench of Supreme Court authority reported as 1992 SCMR 1502, on this point.

11. Under all the above circumstances, I observe that the trial Judge appeared to be unaware of the above decisions and had simply ignored to follow the law for the purpose of deciding the case in a just manner as no attempt was made to appreciate the points actually involved. There were absolutely no grounds for convicting the appellant in such a case. Consequently, the appeal is allowed, the impugned judgment and the sentence are set aside. The appellant shall be released from jail forthwith if not already released or wanted in any other case. N.H.Q./19/FSC Appeal allowed.