RAHMAT HUSSAIN JAFFERI J.---The present Appeal is directed against the judgment dated 18-4- 2003, passed by the Special Court (Control of Narcotic Substances). Karachi Division, in Special Case No,46 of 2000 (State v. Ansar-ur-Islam), under section 9(c) of the Control of Narcotic Substances Act, 1997, (hereinafter referred to as the "Act of 1997")under the impugned Judgment the learned Judge convicted the appellant under S.9(c) of Act, 1997 and sentenced him to imprisonment for four years and fine of Rs,100,000. In default of payment of fine to suffer imprisonment for three months more with benefit of section 382-B, Cr.P.C.
2. The facts giving rise to the present Appeal are that on 17-1-2002, the complainant Danish Kaleem.
Preventive Officer, Customs House, Karachi, along with his staff was present at the International Departure Hall of Jinnah Terminal Complex, QIAP, Karachi. He was performing the duties of checking the passengers of Emirate Airlines No,EK-603. The appellant was to board the said flight for going to Entebbe. It was about 9-15 p.m. The complainant suspected the appellant and interrogated him but he could not give satisfactory replies. Therefore, his personal search was conducted but nothing was secured from him. The appellant was having a green colour suitcase.
The complainant examined the said suitcase in presence of Mashirs Mukhtiar Mangrio and SPO Khalid. The suitcase was having concealed covers on its upper and bottom sides. The complainant checked the said concealed covers and found 19 polythene bags containing heroin powder weighing 1400 grams. Three samples were drawn from the heroin powder for sending them to Chemical Analyser for examination and report. The samples and the remaining property were sealed at the spot. The appellant was arrested and such Mashirnama was prepared in presence of Mashirs Azam Khalid and Mushtaq. The complainant also secured NIC, passport, air-ticket, personal diary and US $ 823 from the personal search of the appellant. The US dollars were returned to the appellant under a receipt. The appellant and the property were brought to the police station, where F.I.R was lodged.
3. After completing the usual investigation, the appellant was challaned in the Court.
4. On 16-4-2002, a charge under section 9(c) of Act, 1997, was framed against the appellant but he pleaded not guilty.
5. In support of the case, the prosecution examined three witnesses viz. Complainant, Mashir and Investigating Officer. The complainant Danish Kaleem gave the same facts as given by him in the F.I.R, which facts are mentioned above. The Mashir Mushtaq Ahmed supported the prosecution case. The 1.0 Senior Preventive Officer Nihar Muhammad Akram gave the details of the investigation. Thereafter the prosecution closed the side.
6. The appellant in his statement recorded under section 342, Cr.P.0 denied all the allegations of the prosecution. In his further statement, he stated as under:-- "I am innocent and falsely implicated in this case as when I was leaving for Entebbe via Dubai, the complainant searched me and took out US $ 823 and Pakistani currency Rs,10,000 from my pocket and I resisted for returning the same to me, on which he was annoyed and took me to Customs Office where he detained me and has got signatures on white paper to the extent that he is releasing me and has returned the above amount to me. But afterward he involved me in this false case and foisted heroin powder upon me with a view to save himself from the action, otherwise I have not committed any offence and no any contraband was recovered from my possession, I pray for justice."
7. The appellant did not examine himself on oath or lead any evidence in his defence.
8. After considering the material available on the record and hearing the parties counsel, the learned trial Judge convicted the appellant as mentioned above, under the impugned judgment.
9. We have heard the Advocate for the appellant, DAG and perused the record of this case very carefully.
10. The learned Advocate for the appellant has stated that the samples prepared by the Investigating Officer at the place of incident were sent to Chemical Analyser after ten months without furnishing any explanation, therefore, the Chemical Analyser's report has, lost its importance. He has relied upon Muhammad Achar Machi v. The State (2001 PCr.LJ 1762). He has further stated that the defence plea furnished by the appellant is more plausible than the prosecution story; that a single doubt in the prosecution story is enough to acquit the appellant. He has relied upon the case of Tariq Pervez v. State (1995 SCM R 1345). He has further stated that the allegation of prosecution that the bag was having concealed covers has not been proved from the bag itself, as it does not have the concealed covers. He his further stated that the Mashir has stated that the complainant had made a hole in the bag from a poker and from that hole the heroin powder came out, therefore, they came to know about the availability of heroin powder in the bag, but the bag does not have the said hole, as such the evidence of prosecution witnesses is highly doubtful.
11. On the other hand, the learned D.A.-G. Has stated that mere delay in sending the property to the Chemical Analyser is not enough to discard the evidence of prosecution witnesses; that the allegation of the appellant's counsel that the bag does not have the concealed covers or has no hole in it can be verified by calling the property in the Court as he has not seen the property; that the defence taken by the appellant is an afterthought, therefore, it has no value.
12. After hearing the arguments, it was found necessary to call the property to examine the same, therefore, the property was called. The same has been examined in open Court. On examination of the bag, we found that there are neither concealed covers nor a hole in the bag at any place. As such the story furnished by the prosecution that the bag had concealed covers or the complainant made a hole in it has not been supported from the circumstantial evidence. Thus, there is conflict between oral and circumstantial evidence.
13. After examining the property, the learned D.A.-G., frankly conceded that the prosecution story has not been supported by the property lying in the Court, therefore, the case is not free from doubt.
14. As regards the samples sent to the Chemical Analyser, it is pointed out that the samples were prepared on 17-1-2002. The complainant who is the Seizing Officer stated that the samples were dispatched to the Chemical Analyser after one day of arrest of the appellant. The Investigating Officer stated that the samples were sent to the Chemical Analyser by the Seizing Officer (complainant). As such, from the above evidence it is clear that on 18-1-2002 the complainant sent the samples to the Chemical Analyser.
15. The Chemical Analyers's report has been produced in evidence as Exhibit P/7. A perusal of the report reveals that the Superintendent, Preventive, Service, In charge Pakistan Customs, Drug Enforcement Cell, QIAP, Karachi sent the samples to Chemical Analyser through a letter dated 22- 11-2002. The Chemical Analyser received the said samples on 27-11-2002. From this report, it is clear that the property was sent to Chemical Analyser after ten months of recovery. The case of the prosecution, as disclosed by the complainant and Investigating Officer, is that the samples were sent on 18-1-2002. The said fact has been falsified by the Chemical Analyser's report as he did not receive the samples on that date but he received it after 10 months. There is no explanation from the side of prosecution to clarify the above discrepancy in the evidence.
16. From the Chemical Analyser's report, it is clear that there is delay of ten months in sending the samples to Chemical Analyser for examination and report. This delay is an inordinate delay, which the prosecution were required to explain but the same has not been done by them. Thus, the unexplained and inordinate delay has materially affected the Chemical Analyser's report.
17. We have considered the above point in an unreported case of Ghous Bux v. State (Criminal Appeal No,211 of 2003). After relying upon an authority of Hon'ble Supreme Court in a case of Jamal Shah v. State (1997 SCM R 1494) we formed opinion that the unexplained and inordinate delay in sending the samples to the Chemical Analyser had adversely affected the Chemical Analyser's report. Reliance is also placed on case of Jehangir v. Nazar Farid (2002 SCM R 1986).
18. After considering the material available on record, we are of the considered view that the case of the prosecution is highly doubtful, therefore, the appellant is entitled for the benefit of doubt, which is accordingly given to him.
19. Consequently, the conviction and sentences awarded to the appellant under the impugned judgment are set aside. The appellant is acquitted and set at liberty. He should be released forthwith if not required in any other custody case.
20. Above are, the reasons of our short order dated 28-10-2003, by which we had allowed the appeal.