P L D 2005 Peshawar 162 (PLP)

SHAHZAD AKBAR KHAN, J.

The appellant Gul Din and his co-accused Mohibullah were put on trial before the learned Additional Sessions Judge/Izafi Zila Qazi-I, Swat on the charge under section 9 CNSA. Mohibullah, co-accused. was acquitted while the appellant was found guilty and on his conviction under section 9(b) CNSA he was sentenced to two years R.I. and a fine of Rs.10,000.

2. The case was registered on the basis of Murasila prepared by Amir Zaman Khan, S.H.O., Police Station Khawazakhela. As per averments of Murasila Amir Zaman Khan had received secret information that the appellant was indulging in sale of narcotics. He accompanying with his police party made a Nakabandi on 29-3-2004 at 20-00 hours. The appellant was seen passing on Charas to another person. Both were apprehended and Charas was recovered from the possession of the appellant which were found to be 1000 grams. Four grams were, separated for the purpose of forensic test. The co-accused disclosed his name as Mohibullah.

3. On completion of the investigation trial commenced and the prosecution in support of its case examined three witnesses. Muhammad Nazir Constable was examined as P.W.1 who deposed that he along with other Constables was present with Amir Zaman Khan P.W.3 when the appellant was found selling Charas to Mohibullah the co-accused. The S.H.O. on apprehending the accused snatched Charas from the hands of Gul Din accused and he claimed to have witnessed. the recovery of Charas and separation of four grams out of the total quantity for chemical analysis. P. W.2 Anwar-ul-Haq also deposed in favour of prosecution on similar facts as stated above and mentioned that recovery of 1000 grams Charas was effected from the physical possession of the appellant. This witness also stated that the S.H.O. prepared a recovery memo. to which he affixed his signature as an attesting witness. Similarly Amir Zaman Khan S.-I. appeared as P. W.3. He reaffirmed the contents of Murasila Exh. PA which culminated into the registration of case as F.I.R No. 132 Exh. PB. He stated that vide his application Exh. P.W.3/2 the accused were produced before the Court for recording their confessional statements to which they agreed earlier but in the Court they refused. The statement of P.W.3 marked the closure of the prosecution evidence which was followed by the statement of accused under section 342 Cr.P.C. All the allegations were denied by the appellant as well as the acquitted co-accused.

4. The learned counsel appearing for the appellant has raised and argued the contentions that the testimony of all the three P. Ws is inconsistent with each other on broad features of the case pertaining to recovery of narcotics from possession of the appellant, thus the factum of recovery was not proved. He further urged that notwithstanding a prior information about the involvement of appellant in sale of narcotics, the Investigating Officer failed to associate any independent witness from the locality. He further maintained that there is an inordinate delay in sending the sample to FSL for no reason whatsoever. On this feature of the case he urged that the alleged recovery was made on 29-3-2004 whereas the sample was sent to the laboratory on 12-4-2004. This delay, according to the learned counsel was opposed to the law i.e. Control of Narcotic Substances (Government Analysts) Rules, 2001. The said rules have been issued in the form of S.R.O 810(I)/2001. The relevant rule is as under:-

4. Despatch of sample for test or analysis. 1) Reasonable quantity of samples from the narcotic drugs, psychotropic substances or the controlled substances seized, shall be drawn on the spot of recovery and dispatched to the officer in charge of nearest Federal Narcotic Testing Laboratory, depending upon the availability for test facilities, either by insured post or through special messenger duly authorized for the purpose. (2) Samples may be dispatched for analysis under the cover of Test Memorandum specified in Form-1 at the earliest, but no later than seventy-two hours of the seizure. The envelope should be sealed and marked "Secret Drug Sample/Test Memorandum". According to the above rule the sample has to be sent to the laboratory as early as possible but not later than seventy-two hours of the seizure. In support of his contention the learned counsel for the appellant placed reliance on 2001 YLR 2958, 2003 PCr.LJ 680 and 2003 MLD 259.

5. On the other hand, the learned Deputy Advocate-General has tried to defend the impugned judgment and the ensuing conviction and sentence on the arguments that the Charas was recovered from the direct physical possession of the appellant when he was delivering the same to the acquitted co-accused namely Mohibullah. He urged that in absence of any enmity the official 'witnesses can be relied upon in the same manner as a public witness can be. He urged that the minor discrepancies in the statements of the witnesses cannot react upon the truthfulness of recovery from the appellant. He further submitted that the delay in sending the sample to the laboratory can also not be fatal to the prosecution case as tile report received from the laboratory was in positive and the seal impressed on the parcels were found intact when the same was received in the F.S.L.

6. We have concentrated on the rival arguments of the learned counsel for the parties and have scrutinized the evidence. According to the F.I.R Gul Din was seen coming from his house towards the "Khawar" where he was handing over Charas to the second person (Mohibullah) whereas the statement of P.W.1 bears the fact that they had reached the spot at 8.00 evening and after the occurrence the police party went to the house of Gul Din. They made inquiry about the second person but according to the answer of inmates of the house he had gone somewhere. The pointation about the second person was made by the appellant Gul Din. The relevant segment of the statement of P.W.1 is reproduced as below:- Urdu Para Page 164 It is not understandable as to for what purpose the police went to the house of the appellant after the occurrence when according to the prosecution Gul Din and his co-accused were apprehended on the spot. The tenor of the statement gives impression that the visit was simply meant for information (ﻤﻌﻠﻮﻤﺎﺕ). Admittedly no search of the house of appellant was made which could be a justification for visiting the house of the appellant after their arrest and the alleged recovery. The Charas was wrapped in a cloth but the cloth was never produced before the Court. As per statement of P.W.1 the appellant was selling Charas but no sale money was recovered from his possession. P.W.2 Anwar-ul- Haq had admitted that darkness has prevailed at the relevant time to such an extent that from beyond 2/3 feet distance between the "Khawar" and the road was admitted to be 20 paces. It is also admitted that some Charas was thrown on the spot but the same was never recovered nor any reason was given for its non-recovery. It is not logical that the accused had thrown some of the Charas and retained the rest. P. W.2 admitted that the Charas was lying in plastic bags but he failed to give the numbers of the bags. The answers to a number of questions were avoided by this witness while showing his ignorance. Although P.W.2 was a witness to the recovery and to the packing of sample but he failed to give the number of the seals affixed on the parcel of samples. The Investigation Officer who claimed to have recovered the Charas could not give answer to the question as to in what thing the Charas was lying which indicates that the evidence of other witnesses qua the wrapping of Charas in a cloth was not supported by the Investigation Officer. The Investigating Officer also failed to answer as to from which piece he had separated sample for F.S.L. for examination. In the trial Court it was Found that the Charas was comprising of numerous pieces. The Investigating Officer claimed that after the completion of investigation n the spot he took the accused to the police station. This portion of the statement runs counter to the statement of Muhammad Nazir P.W.1 who stated that after the occurrence they went to the house of the appellant Gul Din. According to the Investigating Officer accused Mohibullah was at a distance of 8/9 yards from the point of Nakabandi. Recalling the statement of P.W.2 who stated that beyond 2/3 feet identification was not possible, the evidence of the Investigating Officer becomes wholly unreliable because he claims the identity of Mohibullah from 8/9 yards which can be safely calculated as 20 feets.

7. In case of Johar Ali and another appellants v. The State respondent (2003 PCr.L.J 680) it was held that specimen parcels had been sent to the Chemical Laboratory after a considerable delay and cord did not disclose the person in whose custody the said parcels remained during such period. The learned Division Bench of this Court did not feel safe to place reliance on the report of the Chemical examiner and the accused were acquitted. Reference in the said judgment was made to Mst. Iqbal Bibi v. The State 2000 PCr.L.J 1812; Mushtaq v. The State 2002 PCr.L.J 1312 and Munawar Hussain andd others v. The State 1993 SCMR

789. Similarly in 2001 YLR 2958 the de lay of nine days in sending Charas to the Chemical Examiner with no explanation was considered a strong circumstance against the prosecution.

8. The analysis and evaluation of the prosecution evidence in the instant case indicates that the testimony of all the three P.Ws suffers from serious discrepancies and infirmities due to which the evidence of prosecution has lost its evidentiary worth and makes the recovery of the narcotics from the appellant highly doubtful. The delay of two weeks in sending the sample to, FSL is not explained in any manner. It is also not proved that during. the said two weeks the sample remained in some safe custody.

9. The outcome of the above circumstance is that the prosecution has. failed to prove its case against the appellant. Resultantly, this appeal is allowed and the appellant is acquitted of the charge levelled against him in this case. These are the reasons for our short order dated 13-4-2005. N.H.Q/387/P Appeal accepted.