' SALIM KHAN, J.--- The case in hand started with the alleged recovery mentioned in the Murasila dated 17-12-2003 (Exh.P.A./1) in which the time of occurrence is shown as 1135 hours while the time of report is also 1135 hours on 17-12-2003. F.I.R. No,1318 of Police Station Mingora was recorded at 1200 hours on the said date. It was alleged by the S.H.O. Of Police Station Mingora that he was on "Gasht" along with Dilaram Khan, Additional S.H.O. And other police officials in Mingora Bazar when he got the information that the accused was selling Charas in Bazar Makan Bagh, that he reached the spot, arrested the accused under section 54, Cr.P.C. And recovered the Charas from the upper part of Shalwar of the accused. He further mentioned that the Charas comprised of seven pieces and its total weight was two kilograms that he separated 4 grams from each of the seven pieces and after making seven parcels of the sample, he sealed the same for sending them to F.S.L. And the remaining 1972 grams of Charas was sealed in a separate parcel. A Murasila was sent to police station at the hands of Fazal Habib F.C. No,803, while Behram Khan, S.-I. Was deputed for investigation. In the recovery memo. Regarding the said Charas it was mentioned that total weight of the Charas was two grams, that these comprised of seven pieces and 4 grams were separated from each of the seven pieces. The word "Killo" was, however, inserted after the word "Gram". This recovery memo. Was objected to by the learned counsel for the accused at the time of evidence and at the time of hearing his arguments. But the record by itself shows that the mistake was a clerical mistake because 28 grams could not be separated from the samples, if the total Charas was two grams. The sample of the contraband Charas was received in the F.S.L. On 23-12-2003, although the F.I.R. Was lodged on 17-12-2003. The report of the F.S.L. Was issued on 15-1-2004.
2. The learned Judge Special Court, Swat, after the conclusion of trial and hearing arguments on both sides, convicted the accused under section 9-B of the Control of Narcotic Substances Act, 1997 and sentenced him to three years' R.I. With a fine of Rs,5,000 vide the impugned judgment.
However, the benefit of section 382-B, Cr.P.C. Was extended to the convict. Feeling aggrieved, the convict-appellant filed this appeal through jail.
3. We heard Mr. Noor Alam Khan, Advocate, for the appellant, Mr. Aamir Sabir, Advocate, for the State and perused the record in detail.
4. The learned counsel for the appellant referred to the evidence of the P.Ws. And submitted that Nasir Khan (P.W.1) stated that the contraband Charas was recovered from the upper part of Shalwar of the accused that several persons were present at the time of recovery and that samples were placed in the match-box. He further argued Fazal Habib (P.LW.2) stated that the people had gathered at the time of recovery, that he did not know as from which part of the body the contraband Charas was recovered, and that the samples were placed in the bags of plastic.
He also referred to the statements of Behram Khan Additional S.H.O. (P.W.3), who stated that he had not prepared the site plan of the occurrence, and to the statement of Ali Rehmat Khan, S.H.O.
(P.W.4), who stated that the people had not gathered at the time of recovery and private persons were not present at that time, that the place of occurrence was near Eelam Hotel and, in between Contmental Hotel and Eelam Hotel, there were many shops, that the samples of contraband Charas were received in F.S.L. After six days of the alleged recovery, and that the report of F.S.L. Was received on 30-1-2004, although it was prepared on 15-1-2004. He argued that the evidence in this case was doubtful, that the benefit of doubt was to go to the accused, and that the police had mala fide intention against the accused because they had charged him of a previous case without any evidence, and they had taken Rs,10,000 from the accused, which was given back to him on the direction of the learned trial Court.
5. The learned counsel for the appellant submitted that the provisions of section 103, Cr.P.C. Were not applicable in the light of section 25 of the Control of Narcotic Substances Act, 1997, that it was not the search of a place, but was the search of the person of the accused and, therefore, the applicability or otherwise of the provisions of section 103, Cr.P.C. Was not in question. He further submitted that, as a general rule, the prosecution was to support the recovery by independent and reliable evidence. According to the statements of P.Ws.1 and 2, several private persons had gathered on the spot, while the statement of P.W.4 is to the effect that people had not gathered and private persons were not available at the time of recovery, thus, the case of prosecution is doubtful regarding the alleged recovery. He also submitted that P.W.3 did not know whether the parcels were sealed or not, while P.W.4 stated that separate parcels were prepared and, then, these were collectively placed in one parcel, whereas P.W.1 stated that these were placed in the match-box. He did not know whether the box was sealed or not. The recovery, according to the learned counsel for the appellant, was also doubtful because P.W.3 stated that he did not know the part of body of the accused wherefrom the Charas was recovered, while P.W.2 stated that it was recovered from the upper part of the body.
6. The learned trial Court mentioned in its judgment that the Investigating Officer had not collected any evidence regarding the previous conviction of the accused and the legal formalities regarding the previous conviction, on trial in a Court of law, had not been fulfilled. The Court, however, took notice of the decision in case F.I.R. No,29 dated 18-1-2002 decided on 4-12-2003 by the said Court which related to another police station.
7. As for taking of Rs,10, 000 from the person of the accused, the learned trial Court made the inefficiency of the Investigating Officer regarding collection of evidence of the previous conviction of the accused, as a good ground for non-entry of the recovery of a sum of Rs,10,000 from the accused at the time of his arrest.
8. As for the law with regard to sending of sample to the F.S.L., the learned counsel for the appellant referred to rule (4) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, which is as under:-- "4. Despatch of sample for test or analysts.--- (i) Reasonable quantity of samples from the narcotic drugs, psychotropic substances or the controlled substances seized, shall be drawn on the spot of recovery and dispatched to the officer incharge of nearest. Federal Narcotic Testing Laboratory, depending upon the availability for test facilities, either by insured post or through special messenger duly authorized for the purpose.
"(ii) Samples may be dispatched for analysis under the cover of a Test Memorandum specified in Form-I at the earliest, but not later than seventy-two hours of the seizure. The envelope should be sealed and marked Secret Drug Sample/Test Memorandum.'
' The samples were received in the Laboratory on 23-12-2003 after six days of the occurrence, but the report was prepared on 15-1-2004, which was received by the Investigating Officer on 30-1- 2004.
9. It has not been explained by the prosecution that in what circumstances the delay of six days had occurred in sending the samples to the laboratory, the delay of 22 days had occurred in checking the samples and the preparation of the report and the delay of 15 days had occurred in, receiving back the report of F.S.L. These delays made the case against the appellant doubtful to the extent that it had not been proved by the prosecution that the samples of contraband Charas were safe for six days in the police station, and for 22 days in the Laboratory before report. The police officials are as good witnesses as other persons, but the circumstances of the present case show that the police considered the appellant as a previous convict and dealer in contraband and had taken Rs,10,000 from his person at the time of the alleged recovery of the contraband Charas without making any entry about it, that the recovery has not been proved by the evidence of private persons, who were, and were expected to be, present at the scene of occurrence.
10. In these circumstances, we are of the view that the case against the appellant has not been proved beyond the shadows of doubt. We, therefore, give the benefit of doubt to the accused- appellant in the circumstances of the present case and acquit him of the charge levelled against him in this case. The appellant be immediately set free, if not required in custody in any other case.