2002 P Cr (PLP)

4. Arguing on behalf of the accused‑appellant, Kh. Imtiaz Ahmed, Advocate, the learned counsel has submitted that according to the report Exh.P.B., prepared by Meer Muhammad Rafique, A.S.‑I. Police (P.W.1), one gram heroin was sealed as sample in Parcel No. 1 whereas the remaining heroin was sealed in Parcel No.2 but the F.I.R. discloses that three grams heroin was sealed in Parcel No.1 whereas the remaining heroin was sealed in Parcel No.2. He has also contended that said Meer Muhammad Rafique, A.S.‑I. Police, deposed in the Court that three grams heroin was sealed in Parcel No. 1 for chemical examination and the recovery memo. Exh.P.A. was prepared but the parcel of recovery memo. Exh.P.A. discloses that one gram heroin was sealed as a sample in Parcel No.

1. According to him, self‑contradictory evidence of the prosecution makes its case suspicious and doubtful. The learned counsel has also argued that the Investigating Officer, Ch. Saabir Hussain (P.W.7), was not produced by the prosecution who was in the better position to explain the details of the investigation The learned counsel has pointed out that according to Meer Muhammad Rafique, A.S.‑I. Police (P.W.1) and Shah Zaman Constable Police (P.W.2), the recovered intoxicant was weighed at the spot and two separate parcels were prepared but according to Muhammad Safeer Constable Police (P.W.4) the recovered heroin was weighed at the police station because due to the darkness, it was not possible to weigh it at the spot. The learned counsel has further maintained that according to Meer Muhammad Rafique, A.S.‑I. Police, (P.W.1) the recovered heroin was sent to the police station alongwith the accused, by Shah Zaman Constable Police (P.W.2) but according to Muhammad Safeer, Constable Police, (P.W.4) all the members of the raiding party, alongwith the accused, went to the police station. The learned counsel has pressed into service the submission that all the prosecution witnesses, who appeared to prove the fact of recovery, are police officials and not a single independent person of locality was associated with the recovery proceedings thus, this fact alone is sufficient to prove that the accused was falsely implicated on account of enmity. The learned counsel has laid much stress on the argument that the alleged recovery was made on 29‑7‑1991 but after the delay of nine days, the sample of heroin, Parcel No. 1 was dispatched to the Chemical Examiner for its report and it was also not explained by the prosecution that as in whose custody the said parcel was kept for nine days because Zafar Ali. Khan, Head Constable Police, who was responsible to look after the parcel, was not produced as a prosecution witness before the Court. The learned counsel has further maintained that both the Courts below have not appreciated and evaluated the prosecution evidence in its true perspective and committed an error while passing the order of conviction. According to him, the prosecution evidence is vague and self- contradictory which cannot be relied upon. In support of his contentions, he has cited the following authorities:‑‑ (1) 1997 PCr.LJ 671, (2) PLD 1980 Pesh. 119, (3) 1981 SCMR 1105(2) and (4) 2000 PCr.LJ 1812.

5. On the contrary, Syed Ajaz Ali Gilani, Assistant Advocate‑General, appearing on behalf of the State, has controverted the arguments raised by the learned counsel for the accused‑appellant. He has submitted that the appeal is liable to be dismissed because the conviction was based on the concurrent findings of the two Courts below. He has further argued that the prosecution has proved its case beyond any shadow of doubt and the minor discrepancies appearing in the prosecution evidence do not damage the case of prosecution on its material points. The learned counsel for the State has further contended that the accused‑appellant could not bring any evidence on the record to prove that the case was registered against him on account of enmity.

6. I have given my earnest consideration to the arguments addressed at the Bar, perused the record and the case‑law cited, with care. At the very outset, I may observe that the prosecution story is shrouded in mystery. The prosecution miserably failed to prove that how much heroin was recovered from the accused‑appellant and how much was sent to the Chemical Examiner for the chemical analysis. A perusal of the report Exh.P.B. the basic document prepared by Meer Muhammad Rafique, A.S.‑I. Police (P.W.1), reveals that eight grams of heroin was recovered from the accused out of which one gram was sealed in Parcel No. 1 as a sample. When he appeared before the Court, he tested that he had sealed three grams heroin in Parcel No. 1 for the chemical examination. Whereas the perusal of recovery memo. Exh.P.A. prepared by said Meer Muhammad Rafique, A.S. ‑I. Police, (P.W.1) and attested by Muhammad Ashraf, Constable Police, (P.W.3) and Muhammad Safeer, Constable Police (P.W.4), discloses that only one gram of the intoxicant was sealed in Parcel No.

1. Therefore, it could not be proved as to whether the Parcel No. 1 contained 1 gram heroin or three grams.

7. It will also be useful to mention here that according to the prosecution story, eight grams of heroin was recovered but there is nothing on the record to show as to why all the recovered contraband was not sent for chemical examination. The superior Courts of Azad Jammu and Kashmir and Pakistan have directed time and again that whole of the recovered contraband should be sent for the chemical analysis otherwise the remaining intoxicant, which was not sent for chemical examination, cannot be described as intoxicant.

8. According to Meer Muhammad Rafique, A.S.‑I. Police, (P.W.1) the search was made in a street near the shrine of Shah Inayat at about 9‑30 p.m. and soon after the recovery, the recovered heroin was weighed and two separate parcels were prepared but Muhammad Safeer, Constable Police, (P.W.4) does not support this deposition. In this respect he has stated that because of the darkness, the recovered heroin could not be weighed at the spot which was later on weighed at the police station. I am not convinced that whether it was humanly possible for Meer Muhammad Rafique, A.S.‑I. police to weigh the recovered heroin in grams in a dark street at about 9‑30 p.m. and after that to prepare the parcels and to seal them at the spot.

9. There is another element in the case which creates more difficulty for the prosecution, namely the delay in dispatching the recovered intoxicant. The alleged heroin was recovered on 29‑7‑1991 but the parcel weighing one gram or three grams (which is not yet clear on the record) was sent for the chemical analysis after nine days of its recovery. Furthermore, the prosecution also failed to explain that the recovered heroin remained in whose possession and under supervision for nine days. To prove this fact, War Ali Khan, Head Constable, Police was cited as P.W. but he was, not produced before the Court, therefore, this possibility cannot be ruled out that within the period of nine days, the recovered intoxicant was substituted thus, the delay in dispatching the recovered heroin has made the case of prosecution suspicious and doubtful. My this view stands fortified by a case reported as Mst. Iqbal Bibi v. State 2000 PCr.LJ 1812, wherein the Court at paragraph 8 of the judgment observed as under:‑‑ "The third argument of the learned counsel for the appellant is that there was delay of 5 days in despatching the parcel to F. S. L. which makes the case of prosecution doubtful. This argument has force in it. The alleged recovery was effected on 29‑6‑1996 whereas the Report of the Chemical Analyst shows that one gram of heroin sent by prosecution. was received in laboratory on 3‑7‑1996, i.e., with the delay of 5 days. There is no explanation available on record as to in whose custody the said parcel was lying for 5 days. The delay in despatch of the recovered heroin has made the report of F.S.L. doubtful and unreliable."

10. This contention of the learned counsel for the appellant appears to be well‑founded and. requires serious consideration that the alleged recovery was effected from the appellant near the Shrine of Shah Inayat at about 9‑30 p.m. but it was not witnessed by any independent witness or inhabitant of the locality and only police officials were cited as witness as for recovery. Although, the police officials are also as good witness as that of public but in the light of the peculiar facts and circumstances of the case, when the entire recovery proceedings are suspicious and unreliable, the self‑contradictory evidence of the police cannot be relied upon. It is the celebrated principal of law that a Court should be oh guard when witnesses of search do not come from the locality 1987 PLJ (sic) 831.

11. The next question which requires consideration is that the Investigating Officer was not produced before the Court who was the important witness to state about the registration of the case as well as to explain as to whether the Parcel No. 1 contained one gram heroin or three grams and as to why the sample of heroin was not dispatched to the Chemical Examiner for 9 days. The prosecution was duty bound to produce all the important evidence and non‑production of the same has adversely affected the case of the prosecution.

12. It is pertinent to note that during the examination of the accused‑appellant under section 342, Cr.P.C. the Chemical Examiner Report Exh. P.E. was not put to the accused and no explanation was sought by him, failing which it cannot be made basis for the conviction. If the report Exh.P.E. is excluded from the evidence, how it can be proved that the Parcel No.1 contained heroin. In this view of the matter, the report Exh.P.E. cannot be taken into consideration as an incriminating piece of prosecution evidence.

13. I do not find any force in this argument of the learned counsel for the State that because of the concurrent findings of the two Courts below, the appeal is liable to be dismissed. As stated earlier, the trial Court as well as the First Appellate Court has failed to appreciate the evidence of prosecution in its true perspective and arrived at a wrong conclusion, therefore, the impugned order cannot be sustained.

14. The upshot of the above discussion is that there is no legal and effective evidence available on the record to prove the charge. The accused has suffered the ordeal of hearing for the last nine years. Above all the prosecution evidence is not worthy of any credence. The recovery proceedings are shrouded in mystery, the conduct of the police party is not confidence‑inspiring and the recovered contraband was examined after nine days thus, the possibility of the appellant having been falsely implicated in the case of this nature cannot be excluded. On this account the benefit of reasonable doubt is accordingly allowed to the appellant. The order of conviction and sentence, passed by the, trial Court is set aside. The appellant shall be set at, liberty, if not required in any other case. R.B.T./37/Sh.C.(AJK) Appeal allowed.