2007 PLP 3087 (YLR)

RAHMAT HUSSAIN JAFFERI, J.

Present appeal is directed against the judgment. dated 31-8-2006 passed by .the learned Special Judge, C.N.S., Hyderabad, by which the learned Judge convicted the appellant for offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997, sentenced him to suffer imprisonment for life and fine of Rs.500,000 or in default thereof to suffer R.I. for 6 months with benefit of section 382-B, Cr.P.C.

2. Brief facts giving rise to the present appeal are that the prosecution alleged that 30 kilograms of charas were secured from the possession of the appellant on 7-6-2003 at 11.45 a.m. from Railway Crossing, Hyderababd. At the trial the prosecution examined too witnesses viz. complainant and mashir. They both deposed that on the spy information they reached the place of .incident where the appellant was found in suspicious condition. He was carrying two bags which were secured, from which 30 kilograms of charas were secured. Out of the said property 10 grains were separated as sample for sending them to expert for examination and report. The prosecution produced the said report as Exh.6/E. The report shows that the sample was sent through letter No. Nil dated 12-6-2003 through PC Muhammad Bux. The sample was received by the Chemical Analyzer on 16-6-2003: The expert examined the property and found the contents of the sample as charas. Entire material was consumed in the test. When the statements of P.Ws. were recorded, the wrapper in which the sample was sent to expert was not produced before the Court. The learned advocate for the appellant has challenged the report on the ground that, there was delay of four days in between the period of sending the sample and receipt of the same made by the expert; and that the prosecution has failed to explain such delay, therefore, the tampering of the property cannot be ruled out. The learned A.A.G. has conceded the delay consumed in between the above mentioned periods and further added that the prosecution has not furnished any explanation, therefore, he cannot controvert the above aspect of the case.

3. The entire case hinges upon the Chemical Analyzer's report. The sample was taken from the property which represents the entire property. If the sample is proved to be the same sample which was .prepared at the place of incident and the report is positive then the entire property can be taken to be that of charas. The offence involves capital punishment, therefore, the case is to be scrutinized very minutely. As already observed that there is delay of four days in the above mentioned periods. 1n order to explain such delay the prosecution should have examined PC Muhammad Bux who could have put some light as to where was the sample after he received it till he delivered it to the expert. The expert round the signatures of 'two witnesses namely S.I.Ps. Arshad and Malik Jawed Iqbal on the sample. When the entire material was consumed then it was the duty of the prosecution to have received the wrapper in which the sample was sent to Chemical Analyzer thereafter it should have been produced before the Court so as to prove as to whether the wrapper was same in which the sample examined by the Chemical Analyzer was consumed and prepared at the place of incident. Neither the complainant nor the mashir stated in their depositions that the mashirs had put their signatures on the packet of sample. Thus, there is no evidence about the authenticity of the sample nor there is explanation from the side of prosecution about such delay nor the wrapper was identified to be the same in which the property was' sent to Chemical Analyzer. All these defects created doubt on the report of the Chemical Analyzer. It cannot be said with authenticity that the sample, examined by the Chemical .Analyzer was the same which was prepared at the place of incident. Thus a doubt has been created with regard to the said report. It is well settled principle of law that every doubt is required to be resolved in favour of the accused.

4. In the light of what has been. discussed above we are of the considered view -that the prosecution has failed to prove the case against the appellant beyond any reasonable doubt, therefore, the appellant is entitled to such benefit which was accordingly given to him while passing the short order dated 27-8-2007 by which we had allowed the appeal. These are the reasons of the said short order.

5. It has been observed that the prosecution and the investigating agencies are very negligent in receiving the remaining property or empty wrappers, in case of consumption of property, from the Chemical Analyzer and to produce the same before the trial Court so that the property or the wrappers can be identified through the witnesses to give authenticity to the said piece of evidence. As such, the prosecution is directed to be vigilant and careful in future to receive the above mentioned articles from the Chemical Analyzer after preparing the report, copy of order be sent to I.G. Police, Director Anti-Narcotics Force, Karachi and Excise and Taxation Department for issuing required directions to officers so that in future such illegality should be avoided. N.H.Q./S-67/K Appeal allowed.