1990 P Cr (PLP)

This judgment will dispose of Criminal Appeals Nos. 209 of 1987 and 210 of 1987 as they arise from a common judgment dated 29th September, 1987, passed by the Sessions Judge, Sanghar and raised common questions of law and fact. The learned Sessions Judge found the appellant guilty under section 43(3) of Sindh Abkari Act and sentenced him to undergo R.I. for four years and to pay a fine of Rs.20,000 or in default to undergo R.I. for six months more. He also found the appellant guilty under section 9 of Opium Act and sentenced him to undergo R.I. for two years and to pay a fine of Rs.500 or in default to undergo R.I. for three months more. The appellant has challenged his conviction and sentences through the present appeals. The prosecution case is that the Excise Inspector, Sanghar received spy information that the appellant deals in contraband Charas and opium in his house located in Nizamani Para in the Town of Sanghar. The Excise Inspector arranged for Excise Intelligence Staff, Hyderabad consisting of Messrs Muhammad Nawaz, Parwaiz Ahmed Kehar, Fateh Muhammad and others. The Excise Staff on 31‑12‑1986 at about 9‑00 a.m. raided the house of the appellant. According to Excise Inspector, Sanghar, he picked up Mashirs Muhammad Yaqoob and A.S.I. Ghulam and entered into the house of the appellant. They found appellant sitting inside the room of the house and after observing necessary formalities of law, he took personal search of appellant in presence of Mashirs and secured a small handkerchief from the fold of the Shalwar of appellant wherein pieces of Charas weighing 30 grams were found. On further search of the house of the appellant, appellant voluntarily produced a cloth bag which was lying on the table inside the room. The cloth bag was opened and big and small pieces of Charas weighed 5 Kgs. were found in it. The said bag also contained a packet wrapped in plastic paper. The big and small pieces of Charas were found wrapped in plastic papers. The Excise Inspector also found opium weighed 1‑1/2 Kgs. wrapped in the said plastic paper. According to Excise Inspector there was one small weighing scale which smelled Charas and opium. There were also two weights of 20 and 10 Tolas. Two note‑books were also found in the room in which sale account was maintained. These all articles were secured and sealed by the Excise Inspector, Sanghar in presence of Mashirs and such Mashirnama was prepared in presence of Mashirs on the spot. The signatures of Excise Inspector from Hyderabad were also taken on the Mashirnama as attesting witness. Mashirs Muhammad Yaqoob and Ghulam Ali also signed the Mashirnama of recoveries. The appellant was arrested. The Excise Inspector, Sanghar brought the appellant and the property at the Excise Office where he lodged the F.I.R. being No.23 of 1986 and 24 of 1986. After usual investigation the appellant was sent up to stand trial before the Sessions Judge, Sanghar and the appellant was convicted and sentenced as stated in the earlier part of this judgment. Mr. A.Q. Halepota, the learned counsel for the appellant raised the following contentions: (1) No expert witnesses was examined by the prosecution to prove that Charas and opium recovered from the appellant were Charas and opium. In support of his contention, reliance is placed on the following decisions: (1) P L D 1981 Kar. 195; (2) 1982 P Cr. L J 840; (3) 1984 P Cr. L J 2342; (4) 1985 P Cr. L J 8 and (5) 1985 P Cr. L J 1826. (2) The independent Mashirs did not support the prosecution case. The mandatory provisions of section 103, Cr.P.C. have been violated by the trial Court. In view of this the conviction of the appellant cannot be maintained. The learned counsel for the State, on the other hand, submitted that the trial Court wrongly convicted the appellant under section 43 of the Abkari Act but should have convicted him under Article 29 of Prohibition (Enforcement of Hadd) Order, 1979. I have considered the arguments of the learned counsel for the parties. I have gone through the judgment of the trial Court and have also perused the R&Ps. of the case. Reverting to the first contention of the learned counsel for the appellant that no expert witness was examined by the prosecution to prove that Charas and opium secured from the appellant were Charas and opium, it is the case of the prosecution that on search of the appellant, 30 grams of Charas was secured from the fold of his Shalwar in a handkerchief and the appellant handed over a bag of cloth containing about 5 kilos of Charas in the said bag and a plastic packet was recovered from the same bag containing 1‑1/2 kilos of opium. The same were sealed on the spot. Nizamul Kabir the Excise Inspector stated that he was authorised by the Government to testify the property as Charas or opium. The Excise Inspector admitted in his cross‑examination that he did not send Charas and opium to Chemical Analyser for examination and report. It is an admitted fact that in the instant case neither out of the alleged recovered Charas and opium any sample was sent to the Chemical Examiner. A perusal of Excise Manual would show how samples of the articles should be sent to Chemical Analyser for analysis and opinion of Chemical Analyser whose report is admissible in evidence under section 510, Cr.P.C. The report of Chemical Analyser is admissible in evidence under section 510, Cr.P.C. on the production of such report of the Chemical Examiner, the initial burden placed upon the prosecution stands discharged and the same shifts to the accused to prove that what has been recovered from him is not in fact Charas and opium. In the instant case the onus will remain on the prosecution. Mr. Qureshi submitted that the Excise Inspector was competent to certify that what has been recovered from the appellant was in fact Charas and opium. The submission is devoid of force. The Excise Inspector cannot be treated B as an expert witness under section 45 of the Evidence Act and consequently Charas and opium allegedly recovered from the appellant is not proved to be Charas and opium. Reliance could be made to 1976 P Cr. L J 643 in which it was held that as per requirement of section 45 of Evidence Act, the opium for such contraband material recovered must come from expert witness and in the absence of such report conviction cannot be maintained. Reference may be made to 1985 P Cr. L J 8, 1984 P Cr. L J 2342 and 1982 P Cr. L J

840. Reverting to the second contention of Mr. Halepota that the independent Mashirs did not support. I have gone through the deposition of P.W. No.l Ghulam Ali who was first independent Mashir of the alleged seizure. A perusal of the deposition would show that he denied the alleged seizure in his presence. He stated that police had not secured 30 grams Charas and that Excise inspector called him and obtained his signature on a paper. P.W.3 Muhammad Yaqoob who was second independent witness also did not support the prosecution. He stated that he was asked by the Excise Inspector to sign the Mashirnama and the alleged Charas and opium were not secured in his presence. C In the absence of their evidence, the statements of P.W. No.2 Fateh and P.W. No.4 Nizamul Kabir, who are Excise Inspectors, are lacking corroboration from any independent source and the Mashirnama (Exh.6) cannot be relied upon. The appellant addressed a letter (Exh.14) to the Chief Minister of Sindh in whch he stated that P.W.4 Nizamul Kabir was demanding Rs.3,000 failing which the appellant would be involved in false cases. Reliance could be made to P L D 1981 Kar. 195 in which it was held that non‑compliance of section 103, Cr.P.C. was fatal and accused cannot be convicted on such evidence. The argument of Mr. Qureshi that the conviction is proper and the appeals were incompetent has no force in view of the above conclusion. The Criminal Procedure Code requires that there should be a charge and it should be in writing. This was done in the instant case. The appellant was convicted under section 43/3 of Sindh Abkari Act and section 9 of Opium Act. He was not convicted under the Prohibition (Enforcement of Hadd) Order, 1979. Abkari Act and Opium Act are still on the Statute Book and they are not yet repealed. In this view of the matter, the submission of the learned counsel is without any substance and the same is rejected. For the aforesaid reasons, the judgment of the trial Court is not consistent on the material on record and suffers from legal infirmities and has failed to prove the case against the appellant beyond reasonable doubt and consequently the judgment is set aside and the appellant is acquitted. His bail bond stands cancelled. S.A./S‑517/K Appeal accepted.