1. ' RAHMAT HUSSAIN JAFFERI, J.---The present appeal is directed against the judgment dated 19-9- 2001 passed by the learned Special Judge, Control of Narcotic Susbtances, Larkana in Special Case No.09 of 2000, State v. Mst. Jeejal. Under the impugned judgment, the learned Judge convicted the appellant under section 9(c), Control of Narcotic Substances Act, 1997 (Hereinafter referred to as the Act 1997) and sentenced her to suffer imprisonment for life and fine of Rs.100,000 or in default thereof to suffer R.I. For six months, with benefit of section 382-B, Cr.P.C.
2. ' Brief facts giving rise to the present appeal are that on 16-4-1999 complainant SIP Azizullah, his subordinate staff and lady policy officers were on patrolling and checking vehicles. At about 4-00 p.m. One Wagon was intercepted near Afzal Baba graveyard, Jacobabad which was coming from Quetta side. The complainant went inside the Wagon where he found two ladies sitting in suspicious condition. They were brought out from the Wagon where the lady police officers searched the persons of the said two ladies. One of the lady was having a small height. On enquiry she disclosed her name as Mst. Jeejal (the appellant). She was holding a shopping bag. The said bag was opend which contained two cloth bags. Out of them one bag contained 25 slabs of Charas weighing 6370 grams and each slab of Charas weighed 250 grams. The other bag contained 11 slabs/patties of opium weighing 3950 grams and each slab/patti weighed 350 grams.
3. One slab/patti of Charas and slab/patti of opium were separately sealed for sending them for chemical examination report. The remaining property was also sealed separately. The other lady was also searched whose name was Mst. Arbab. She was also having yellow shopping bag, from it Charas and opium were also secured. The detailes are not mentioned as the said accused is not the subject of this appeal. However, the police prepared the joint Mashirnama of recovery and arrest of the appellant and Mst. Arbab. The appellant, Mst. Arbab, who died subsequently and the property were brought to the Police Station where the complainant lodged the F.I.R. The samples secured from the property were sent to Chemical Analyzer for report who found the same to be Charas and opium. After completing the investigation, the appellant was challaned in the Court where she was tried, convicted and sentenced as mentioned above under the impugned judgment.
4. ' We have heard Advocate for the appellant, State counsel and perused the record of this case very carefully. Learned Advocate for the appellant has stated that the private persons were not associated in the investigation and provisions of section 103, Cr.P.C. Have been violated; that there are material contradictions in the evidence; that the samples sent to Chemical Analyzer are not tallying with sample prepared at the place of incident; that the Chemical Analyzer report is belying the case of the prosecution. Therefore, the case of the prosecution is doubtful.
5. ' On the other hand learned State counsel has stated that the case is supported by three witnesses who have fully implicated the appellant; that the samples were prepared at the place of incident; that the same were sent to Chemical Analyzer for examination and report; that the report is in positive; that the provisions of section 103, Cr.P.C. Are not applicable and that the case has been proved against the appellant.
6. ' We have given due consideration to the arguments, gone through the evidence with the help of learned Advocate for the appellants and find that the prosecution examined three witnesses viz., complainant SIP Azizullah, Mashir HC Sikandar Ali and lady police constable Mst. Khurshed. All the three prosecution witnesses gave the same details of the incident as mentioned above. P.W. Mst.
7. Khurshed Begum further disclosed that the weight of Charas was 3370 grams, the weight of opium was 3950 grams and the property was sealed at the spot. The evidence of P.W. Azizullah and Mashir further reveals that one slab of 250 grams of Charas and one piece of opium weighing 350 grams were sealed separately for sending them to Chemical Analyzer for examination and report.
8. The Chemical Analyzer report has been produced as Exh.11-C. The sealed packet received by the Chemical Analyzer in respect of appellant shows the details as under:-- "Mst. Jeejal 240 grams of Charas and 100 grams of Opium".
9. ' The said parcels were opened and the observation of Chemical Analyzer is as under:-- "Parcel No.3 Containing twenty four (24) small size black brown pieces kept in three empty cigarette packets labelled as Gold Leaf ' Parcel No.4 Containing ten (10) sma ll size balckish brown pieces kept in two empty cigarette packets, one is labelled Gold Leaf and other labeled as Gold Street".
10. ' The Charas and opium was weighed by the Chemical Analyzer and the said details are as under:- - "total weight of the above parcel No. 3 along with contents 280 Gms.
11. ' Net weight of pieces................................ 240 Gms ' Total weight of the above parcel No.4 along with contents 113 Gms.
12. ' Net weight of pieces ................... 100 Gms."
13. ' From the report of Chemical Analyzer it is clear that the case of prosecution has not been supported by the said report. Both the witnesses viz. Complainant and Mashir were unanimous that one slab of Charas and one slab of opium weighing 250 and 350 grams respectively were prepared as samples at the place of incident. The complainant further stated that he had sent the said samples to the Chemical Analyzer. None of these witnesses disclosed that the slabs were broken into pieces and put them in Cigarette packets. However, the Chemical Analyzer found the weight of Charas as 240 grams and weight of opium as 100 grams which are not tallying with the weight as disclosed by the complainant and Mashir. The Chemical Analyzer found 24 pieces of Charas of small size and ten small size pieces of opium lying in Cigarette packets. Whereas the case of he prosecution is that only one slab from each quantity was sent to Chemical Analyzer.
14. Thus the number of slabs are also not tallying with the Chemical Analyzer report.
15. ' Thus the prosecution has failed to prove very important fact about the samples which were sent to Chemical Analyzer for examination and report. Entire case hinges upon the report of the Chemical Analyzer. From the Chemical Analyzer report, the statement of complainant and Mashir have been belied. From the examination of Chemical Analyzer report, it is clear that the different property was sent to him for examination and report which does not pertain to the present case. As such the Chemical Analyzer report is of no help to the prosecution in any manner therefore it can be safely excluded from the consideration. If the Chemical Analyzer report is taken out of consideration then there is nothing on the record to the show that the property secured from the possession of the appellant was Charas or opium. Without such proof the appellant cannot be convicted. We have also gone through the evidence and found that there are material contradictions in the evidence of witnesses. Even if we accept the evidence, then it will only prove that some slabs were recovered from 'the possession of the appellant, that by itself will not prove that the slabs are of Charas and opium. The prosecution was satisfied with the report of Chemical Analyzer therefore, even at the appellate stage the prosecution. Did not apply for sending the remaining property to the Chemical Analyzer for examination and report by invoking the provisions of section 428, Cr.P.C.
16. After considering the material available on the record, we are of the considered view that the case of prosecution is highly doubtful, therefore, the appellant is entitled to the benefit of doubt which was accordingly given to her at the time of passing short order.
17. ' Above are the reasons of our short order dated 17-2-2005 by which we have allowed the appeal.