2008 PLP 37 (YLR)

MUHAMMAD MOOSA K. LEGHARI, J.

These appeals are directed against the judgment dated 20-3-2006 passed by Special Judge Control of Narcotic Substances, Hyderabad in Special Case No.47/2004 arising out of crime No.10/2004 P.S Baldia, Hyderabad. On the complaint of S.-I./S.H.O. Ghulam Raza Mari, the appellants were sent up to stand trial for possessing 20 Kilograms of charas allegedly recovered from the dickey of the car which was boarded by the appellants. In order to prove the case, prosecution examined SIP Ghulam Raza Mari, the complainant and Investigating Officer of this case and ASI Ali Dino, one of the mashirs of the recovery. After closure of the prosecution evidence, the appellants were examined under section 342, Cr.P.C. wherein they denied the allegations and claimed to be innocent. Appellant Irfan Ali took a specific plea of false implication at the behest of S.S.P Sanaullah Abbasi who was allegedly annoyed with the uncle of said appellant namely Advocate Ali Anwar having allegedly filed a complaint against the said S.S.P. On the basis of evidence adduced, the appellants were convicted under section 9(c) of C.N.S. Act, 1997 and each of them was sentenced to suffer imprisonment for 10 years besides a fine of Rs.1,00,

000. In case of non-payment of fine each of them was to suffer imprisonment for six months more. However, the benefit admissible under section 382-B, Cr.P.C. was extended in favour of all the four accused persons. It is contended on behalf of the appellants that the prosecution has failed to prove the case against the appellants. It is argued that the prosecution's claim to have recovered two plastic bags each containing 10 rods but the samples were not drawn from each rod and that only 10 grams of charas was sent to the chemical examiner. In support of their contentions, learned counsel placed reliance on the case of Muhammad Hashim v. The State, reported in PLD 2004 SC

856. Conversely, learned Assistant A.-G. initially supported the case of the prosecution but was unable to satisfy as to whether the samples were drawn from each rod and if so, how much quantity was drawn from each rod. At the later stage, however, he candidly conceded that in the cross examination, P.W. Ali Dino has admitted that sample of 10 grams was taken from one slab of the charas. We have considered the arguments, scanned the evidence available on record and have also taken into consideration the case law relied upon by learned counsel for the appellants. Honourable Supreme Court in the case of Muhammad Hashim v. The State PLD 2004 SC 856 was pleased to observe as under:- "It is to be noted that under Act, 1997, stringent sentences have been provided if offences charged against the accused within any component of section 9 is proved. Therefore, for such reason, Act 1997, has to be construed strictly and the relevant provisions of law dealing with the procedure as well as furnishing the proof like the report of expert, etc. are to be followed strictly in the interest of justice, otherwise in such like cases it would be impossible to hold that total commodity recovered from his possession was charas." In the cited case, Honourable Supreme Court ruled that the appellant was found in possession of 288 rods of charas but a sample of 4 grams was sent for examination by chemical examiner. In such circumstances, it was held that since the sample was taken from only one rod, it would not be possible to hold that all the rods were made of charas. As such it was held by Honourable Supreme Court that case of the prosecution was doubtful and the appellant was acquitted. In the case in hand, the case of prosecution is that in all 20 rods of charas were found to be stored in dickey of the car in two separate packets. One packet,is said to be Containing 10 rods weighing 10 Kilograms whereas the other packet is alleged to contain 19-1/2 rods weighing

10. Kilograms, totalling to 20 Kilograms. However, nothing has been mentioned in the F.I.R. or the mashirnama of the recovery regarding the samples drawn from the recovered narcotics. However, P.W. Ali Dino candidly admitted in his cross examination that sample of 10 grams was taken from one slab of the charas and sealed separately. In the circumstances, it could not be presumed that all the rods contained charas as neither the samples were drawn from all those rods nor chemically examined. Apart from above it will be noted that the recovery was made on 21-3-2004 but the samples were received at the laboratory on 29-3-2004 after the delay of about 8 days. The parcel containing the samples was not sent through any letter as evident from the laboratory report neither it contains -the letter number nor the date of dispatch. No explanation is available on the record to justify such major lapse in the case of the prosecution. Tested on the touchstone of the authority of Honourable Supreme Court as relied upon by learned counsel for appellants, the conviction cannot be sustained as the case of the prosecution is full of doubts. It is a well established principle of law that burden was on the prosecution to prove the charge beyond all reasonable doubts, whereas the accused was only to create a reasonable doubts in the case of prosecution. Since serious doubts have been created in the case of prosecution, the judgment of conviction has been rendered unsustainable. It is accordingly set aside. The appellants are set at liberty and shall be released if not required in any other case. These are the reasons for the short order passed on 19-9-2007. H.B.T./I-20/K Appeal allowed.