2006 P Cr (PLP)

MUHAMMAD FARRUKH MAHMUD, J.

Khadim Hussain appellant along with his mother Mst. Zohran Mai was sent up to face trial in case F.I.R. No.160 registered at Police Station Kot Mithan on 27-5-2002 for offence under section 9(c) of Control of Narcotic Substances Act, 1997 (hereinafter to be referred as C.N.S.A.). Vide judgment, dated 21-9-2004, Ch. Muhammad Sarwar Sidhu, learned Additional Sessions Judge, Rajanpur, while acquitted Mst. Zohran Mai, convicted the appellant for offence under section 9(c) of C.N.S.A. and sentenced him to imprisonment for life. He was also directed to pay Rs.50,000 as fine, in default in payment whereof he was to undergo six months' S.I. Benefit of section 382-B, Cr.P.C. was extended to the convict. Through this appeal, Khadim Hussain has challenged his conviction and sentence.

2. The prosecution case, as revealed by F.I.R. Exh.P.A., is that on 27-5-2002 at about 10-00 a.m. on a tip off, Muhammad Iqbal, Inspector/S.H.O./P.W.4, apprehended the appellant near Pull Picket Jhoka, while the appellant was on a motorcycle along with his mother/co-accused. During search nine packets containing Charas and one packet containing opium were recovered from a bag which was in possession of the appellant. Charas weighed nine kilograms, while the opium weighed one kilogram. 300 grams of Charas was separated from each of the nine packets and sealed into parcels for chemical examination. Similarly 300 grains from packet containing opium was also separated for the purpose of chemical examination. After recovery, the complaint Exh.P.B. was drafted, which provided basis for formal registration of case. After completion of investigation, the accused were sent up to face trial.

3. Charge was framed by the learned trial Court on 13-8-2002. The accused denied the allegations and claimed to be tried; hence, the trial commence.

4. On 19-10-2002, statement of Nazir Ahmad Toor, A.S.-I./ P.W.1, was recorded. He stated that the formal F.I.R. was registered on the same date, i.e. 27-5-2002. Statement of Zulfiqar Ali, H.C./P.W.2, was also recorded. He stated that on 27-5-2002, he was handed over four sealed parcels containing Charas and opium. Out of the four parcels, P.1 and P.2, present in Court, were deposited by him in Malkhana. The remaining two parcels were handed over to Abdul Sattar Constable on 30-5-2002 for onward transmission to the office of Chemical Examiner. On the same date, statement of Abdul Sattar P.W.3 was also recorded. He stated that he was handed over two parcels on 30-5-2002 by P.W.2 and the same were deposited in the office of Chemical Examiner, Multan, on the same day. The statements of Muhammad Iqbal Inspector Azhar Hussain, S.-I. P.Ws.4 and 5, were recorded on 17-3-2003. On the same date, statement of Hazoor Bakhsh P.W.6 was also recorded. The above noted three witnesses stated about the recovery of the narcotics from the possession of the appellant. In addition to that, P.W.4 stated about the drafting of complaint and investigation of the case. On 3-7-2003, statement of Nazir Ahmad Toor, A.S.-I./P.W.7 was recorded, who stated that on 12-11-2002, the Illaqa Magistrate opened the case property and separated 25 grams of Charas from one .packet and 300 grams of opium from the other and sealed them into parcels and handed over them to the Moharrer on 21-11-2002. He took the parcel and deposited the same with Chemical Examiner, Lahore. P.W.8 Noor Hassan H.C. stated about the receipt of two sealed parcels which contained Charas and opium, which he deposited in the Malkhana and later on handed them over to the constable for its onward transmission. P.W.9 Muhammad Bilal/S.-I. stated that on 11-11-2002, after receipt of report of Chemical Examiner, Multan dated 5-6-2002, he applied for re-preparation of samples to the Illaqa Magistrate and on 12-11-2002, the case-property was produced before the Magistrate, who separated 2500 grains of Charas and 300 grams of opium from the case-property and sealed them into parcel and handed them over to the police official concerned. After placing on record, the report of Chemical Examiner posted at Multan Exh. P. H. and that of the Chemical Examiner working at Lahore Exh.P.J., the prosecution closed its case.

5. In his statement recorded under section 342, Cr.P.C. Khadim Hussain pleaded innocence and stated that he was roped in a false case. Neither he appeared as witness in his defence under section 340(2), Cr.P.C. nor he produced any defence witness during trial.

6. Learned counsel for the appellant has prayed for acquittal on the ground that the second report of the Chemical Examiner was forged and inadmissible in evidence and, thus, no conviction could be recorded on the basis of that report. Conversely, learned A.A.-G. has submitted that P.Ws.7 and 8, who had stated about the separation of narcotic substance from the case-property by the Magistrate were not cross-examined. The learned A.A.-G. has referred to section 537, Cr.P.C. and submitted that the irregularities, if any, were curable under the aforesaid provision of law and no benefit could be given to the appellant on that score. He has submitted that the recovery of narcotics had been proved against the appellant beyond doubt and he deserved no leniency.

7. We have heard the learned counsel for the parties and have also gone through the relevant record of the case.

8. It has been noticed by us that the alleged recovery of narcotics was effected on 23-5-2002. Soon after the recovery on 29-5-2002, the samples were sent to the office of Chemical Examiner which were received on 30-5-200g. After analysis, the Chemical Examiner prepared the report on 5-6-2002, which is being reproduced:-- "The result of above sample after analysis is inconclusive. The ingredients are not confirmed. Please send the second sample of opium and Charas, under the rule." On 19-10-2002 when the above noted report Exh.P.H. had already been received, statements of three P.Ws. were recorded and the case-property was produced before the Court and was marked as Exh.P.I. and Exh.P.II. The statements of remaining three vital witnesses, i.e. author of the F.I.R. and two recovery witnesses were recorded on 17-3-2003. A Till then the only report in field was Exh.P.H. The learned counsel, who was cross-examining the witnesses, was in the knowledge of report Exh.P.H., which did not support the prosecution case and he conducted the cross-examination accordingly. While trial was in progress surreptitiously an application was moved for preparing fresh parcels by P.W.9 on 11-11-2002 without issuing any notice to the appellant and without any permission from the learned trial Court. Separate parcels were handed over to the police officials who instead of sending the samples to Chemical Examiner, Multan, who had earlier formulated the opinion, sent the same to the Chemical Examiner, Lahore, who received the same on 22-11-2002 and gave a favourable opinion to the prosecution after taking eleven months on 21-10-2003. We have no doubt in our mind that after case-property was produced before the trial Court and the trial had commenced, then the Area Magistrate had been left with no jurisdiction to tamper with the case-property without permission of the learned trial Court. Moreso, he did the same without giving any notice to the appellant and without taking any permission from the trial Court. It is also noteworthy that after obtaining a fresh report from a different Chemical Examiner, the prosecution evidence, especially witnesses of recovery and the Investigating Officer who had drafted the complaint, were not re-examined. In the circumstances, the appellant was seriously prejudiced by the acts of' P.W.9 as well as the Area Magistrate. Every accused has fundamental right to be dealt in accordance with law. The mala fide of the police is proved from the fact that though the Chemical Examiner working at Multan had asked for fresh samples yet the fresh samples were sent not to him but to a Chemical Examiner of choice working at Lahore.

9. For what has been said above, we have no doubt in our mind that the value of the subsequent report Exh.P.J. is not worth even the paper on which it has been drafted. The appellant has already suffered more than three years' R.I. and nine months in jail. In the circumstances, we are not inclined to remand this case for retrial. Thus, extending benefit to the appellant, we allow this appeal, set aside the impugned judgment and acquit the appellant of all the charges. He would be released forthwith, if not required in any other case. H.B.T./K-15/L???????????????????????????????????????????????????????????????????????????????????? Appeal allowed.