1998 P Cr (PLP)

?

4. The learned counsel for the parties have been heard at length and the record of the learned trial Court perused in depth. Mr. Muhammad Aslam Chishti, Advocate for `the appellant mainly contended that the charge against the convict has not been established by the prosecution on the grounds; (i) the report of the Chemical Expert who is not the Chemical Examiner within the meaning of section 510, Cr.P.C. could not have been tendered in evidence by P.W.3 the Investigating Officer hence not admissible in evidence, (ii) the recovery of the narcotics has not been made from the control/possession of the appellant, (iii) flagrant violation of the mandatory provisions of section 103, Cr.P.C. has been done by the police without offering any explanation in view of the judgment of the Honourable Supreme Court of Pakistan reported in PLD 1996 SC 574 rendering thereby the stated recovery doubtful and inconsequential, (iv) the report of the Chemical Expert being not a public document is not capable of admissibility by tendering it, (v) no analysis report pertaining to stated Charas has even come on record, (vi) the stated search of the "Baithak" of the house of the appellant at late hours of the midnight has been made contrary to the relevant provision of search as contained in the Cr.P.C. (vii) the offence described in section 4 of the Hadd Order, if committed at a public place within the meaning of Article 16(b) shall be cognizable and in the case in hand the Baithak of the house of the appellant was not a public place, vitiating thereby the search proceedings (viii) that there are material contradictions in the statements of the P.Ws. as well which make the conviction as not sustainable and (ix) that without prejudice to the fore-stated grounds, the inordinate delay in sending/despatching the illicit articles to Chemical Analyst created doubt with regard to the authenticity thereof, specially for want of any explanation offered by the prosecution of such delay. The learned counsel elaborating that the offence under Article 4 of Hadd Order, if not committed at a public place, referred to the scheme of the law and made reference to Articles 8, 9 and 12 of the Hadd Order.

5. The learned counsel appearing for the State submitted that charge against the appellant was proved beyond doubt, there is no material contradiction in version of the P.Ws. and that the minor discrepancies in prosecution evidence have no effect on the merits of the case and that the police witnesses are as good witnesses as that of the public, in absence of special circumstance/reason. The Advocate for the State generally controverted even the legal pleas raised on behalf of the appellant and while confronted with the point of inordinate delay in sending the articles to chemical analyst for inviting some plausible arguments, he frankly conceded about the possibility of manipulation/tempering with the parcels.

6. I have given anxious thought to the propositions involved in the case. Section 510, Cr.P.C. reads:‑‑ "Report of Chemical Examiner. Serologist etc. Any document purporting to be a report, under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government or any Serologist, Finger? Print Expert or Fire‑arm Expert appointed by Government (or of the Chief Chemist of Pakistan Security Printing Corporation, Limited), upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may without calling him as a witness, be used as evidence in any inquiry, trial or other proceeding under this Code: Provided that the Court may if it considers necessary in the interest of justice summon and examine the person by whom such report has been made. " The admitted feature of the case is that report of analysis Exh.P.3/B about the suspected opium has been issued by the Chemical Expert of the F.S.L., Quetta (Police Crime Branch Balochistan) and being not a Chemical Examiner to the Government cannot be legally tendered in evidence without its legal proof i.e. through the person/expert who analysed the material and executed the report without putting him in the witness‑box, is not tender-able by anyone else by way of evidence. The report of the analyst so relied upon by the learned trial Court without the examination of the expert in Court not having been exempted under section 510, Cr.P.C. is of no legal effect. Such document being not a public document cannot be legally tendered in evidence except through primary evidence within the meaning of Articles 73 and 75 read with Article 59, of the Qanun‑e‑Shahadat, Order, 1984. In absence of legal proof/evidence of the analyst, despite the report having been exhibited in the statement of Investigating Officer; cannot be treated to be a valid and legal piece of evidence against the accused. Conviction based upon such report is not sustainable. 1981 PCr.LJ 97, AIR 1944 Bom. 321 referred. The Police Officials nor the Courts are experts in the chemical analysis to determine by looking or observing the suspected material to be intoxicants in absence of the proof of chemical analysis. Even in cases where the chemical analysis report has been produced in evidence bur the reasons for the conclusion drawn by the Expert were wanting such report is to be kept out of consideration, if it were the sole basis for conviction, keeping in view the principles of safe administration of justice. Muhammad Kalim v. The state 1995 MLD 1152 (SCD) referred.

7. As per report of the Chemical Analyst Exh.P.3/B the suspected material i.e. opium parcel No. l was received in the F.S.L. Laboratory (sent by the S.H.O., Police Station Khuzdar by hand) on 15‑10‑1995. The analyst report has been issued on 31‑10‑1995 whereas, Exh.P.3/B indicates that the parcel in question was received in the Laboratory duly sealed bearing four seals and after examination of the suspected material it was returned to the S.H.O. concerned duly sealed. The recovery memo. of the suspected material (opium) Exh.P.2/A was prepared on the date of incident i.e. 18‑8‑1995 but the parcel thereof has been most probably sent by hand after the lapse of about two months, the date on which it was received in the F.S.L. for analysis. No explanation whatsoever has been given by the Investigating Officer for this inordinate delay nor any evidence produced by the prosecution as to in whose custody or where the parcel of the suspected material was kept lying. The learned counsel for the State was not in position to clarify the inordinate delay in sending the parcel to the Laboratory, rather conceded to the possibility of its tampering/manipulating. In such a situation where no explanation has been offered in sending the suspected material for test analysis after a considerable long delay nor any evidence produced by the prosecution as to where and in whose custody the material was kept, renders its authenticity as doubtful, hence, immune of any reliance. 1990 ALD 321(2) referred.

8. The place of occurrence wherefrom the suspected material narcotics as per case of the prosecution, has beam recovered by the police, is the Baithak of the house of the appellant. Article 16 of the Hadd Order envisages certain offences to be cognizable, namely (a) an offence punishable under Article 3; (b) and offence punishable under Article 4, Article 8 or Article 11 if committed at a public place. The admitted feature of the prosecution case is that the alleged offence under Article 4 of the Hadd Order, 1979 has not been committed at a public place, hence, not cognizable within the meaning of Article 16(i)(b) of the Prohibition (Enforcement of Hadd) Order, 1979. The enabling provisions o1 Articles 22 and 23 of the Hadd Order in my humble view, have been enacted to deal with the issuance of search warrants in such like cases as well, where a cognizable offence has not been committed under Articles 4, 8 and 11 of the Hadd Order within the meaning of Article 16, besides, the cognizable offences within the purview of section of the Order. In view of the prosecution case Article 3 of the Hadd Order did not attract in the instant matter and the learned trial Court was fully conscious of this legal aspect, therefore, it did not frame charge under Article 3 of the Order; although F.I.R. has been registered under the said Article too. Similarly the offence of drinking punishable under Articles 8 and 11 of the Hadd, Order has been made cognizable, only if committed at a public place under Article 16 of the Order. In view of the express provision of the Hadd Order referred to above, the intent of the Legislature is quite manifest from the said provisions of law; so an offence under Articles 3 and 4 of the Hadd Order, if not committed at public place is not cognizable. The provisions of the law have not been adhered to by the Police which render the investigation into the case as irregular and not in consonance with the law; resultantly, the search so carried out stands vitiated, but ipso facto does not vitiate the trial and the Court despite such illegality and irregularity seized of the jurisdiction and competence to try the offence. Noorul Islam v. State 1986 SCMR 1836, Nasir Abbas v. State NLR 1989 SD 806, Ashiq Hussain v. State 1995 MLD 932 (SCD), Ejaz Mehmood v. State PLD 1993 FSC 25 referred.

9. The other important legal aspect involved in the case pertains to the violation of the mandatory provisions of section.103, Cr.P.C. if any; has taken place in the circumstances of the case. Obviously, the raid has been conducted by the police in the Baithak of the appellant's house which is located in a habitated area after midnight. In the given circumstances in the late hours at night, it is hardly conceivable that respectable persons of the locality could be made available to witness the intended search but despite this aspect of the case, the P. Ws. themselves have made the stance of the prosecution in this context doubtful. For instance, P.W.1 during cross‑examination stated that they did not inform any private person to witness the search as it was night hours, the house of the accused is surrounded by many other houses, and no Magistrate was with the raiding party, whereas; P.W.2 H.C. slated that one Magistrate was present at the time of raid, S.H.O. called people from the surrounding houses but no one came out of their houses due to night and in this context during cross‑examining P. W.3 the Investigating Officer stated that at the time of raid no Magistrate was present and no private witness was called from nearby houses to witness the search. All the P.Ws. are police officials who instead of being consisting in their version contradict each other with respect to the non‑availability of the private persons to witness the search, this was a pre‑arranged raid, they could have, made effort even at hours of the night to arrange for public witness or at least their stand on the point should have been consistent in view of the Rule laid down by the Honourable Supreme Court reported in PLD 1996 SC 574 and 1995 SCMR 1414.. The inconsistency of the P.Ws. in this context creates legitimate doubt about the alleged recovery of narcotics and the recovery of the alleged narcotics for the foregoing reasons is of no credence. ???????????

10. The prosecution was fully aware of the fact that both the parcels of the suspected material were sealed for analysis and the report of the Laboratory with respect to the Charas has also been annexed with the challan separately submitted in Court but it did not bother even to prove it. P. W.1 (the complainant) in the case deposed during cross‑examination that the opium and the Charas was weighed at the place of occurrence and subsequently in the police station and he did not remember as to who weighed these at both the places. Whereas; P.W.2 (the Investigating Officer) deposed during cross‑examination that he sent the Murasila to police station through a constable and that he had taken out samples of the recovered narcotics weighing two grams each and while answering to a question stated that he sent the parcels on 15‑10‑1995 to Quetta for analysis. The deliberate suppression of the fact about the taking out the samples further creates doubt with respect to authenticity of the parcels of the suspected material. The learned Trial Court did not take into account the relevant facts and the grounds of law involved in the case and recorded the conviction of the appellant without the charge having been proved, which is not sustainable under the law. The impugned judgment and the conviction of the appellant recorded by the Trial Court is hereby set aside for the foregoing reasons. The appellant be set at liberty if not detained in connection with any other case. The cash amount of Rs.7,750 taken into possession by the Police, if not earlier returned, be restored to, the appellant, resultantly the appeal succeeds. H.B.T./662/Q?????????????????????????????????????????????????????????????????????????? Appeal accepted.