' RAHMAT HUSSAIN JAFFER, J.---Brief facts giving rise to the present Appeal are that on 13-9-2004 at 7-30 p.m. During Nakabandi. Excise Circle Officer Nazar Muhammad Siyal apprehended the appellant at Shahbaz Colony, Dadu and secured 2 Kg. Of chars from his possession. 20 grams of chars were separated as sample and such Mashirnama was prepared. The appellant and the property were brought to the police station where the complainant lodged the F.I.R. The police after usual investigation challaned the appellant in the Court.
2. The learned Special Judge, CNS, Dadu tried the appellant, convicted him for offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997, sentenced him to suffer R.I. For 8 years and fine of Rs,100,000 or in default thereof to suffer R.I. For one year with benefit of section 382-B, Cr.P.C. Under the impugned judgment dated 3-10-2005.
3. We have heard the advocate for the appellant. A.A.-G. For the State and perused the record of this case very carefully.
4. At the' trial the prosecution examined complainant Nazar Muhammad and mashir P.W.2 Dodo.
They gave the same details of the incident as mentioned in the earlier part of the judgment. The complainant further admitted that the appellant was challaned on the next day of the incident and that the sample was sent to Chemical Analyzer before that. The prosecution produced the Chemical Analyzer's report as Exh.6/C. The learned advocate for the appellant has challenged the said report on the ground that the sample was sent on 14-9-2004 but it was received by the Chemical Analyzer on 12-10-2004 without furnishing any explanation of the delay and that when the property was weighed it did not tally with the weight shown by the complainant. The learned A.A.-G. Has conceded the above position and further added that the prosecution has not furnished any explanation for such delay consumed between the period of sending the property and receipt of the same by Chemical Analyzer.
5. We have examined the -Chemical Analyzer's report and found that the property was sent through excise constable Abdul Rahman vide letter No,50 of 2004 dated 14-9-2004 but the sample was received by Chemical Analyzer on 12-10-2004.
6. From the above position it is clear that there is gap of 28 days in between the date of dispatch of the property from police station and receipt of the same by the Chemical Analyzer, therefore, the prosecution was required to furnish explanation as to where was the property in between the said period. The prosecution could have examined Excise Constable Abdul Rahman who was assigned the duty of delivering the property to the Chemical Analyzer, because the said witness was important on the above aspect of the case who could have , explained the position and the circumstances which led the witness to produce' the property before the Chemical Analyzer at Karachi after delay of 28 days. But the prosecution did not examine him for the reasons best known to them. This aspect of the case becomes more important because the gross weight of the property was 25 grams and net weight of the chars was 13 grams as per expert report. According to the witnesses they separated 20 grams from the property as sample, therefore, the net weight of the charas should have been 20 grams but the weight was quite different when it was weighed by the Chemical Analyzer, therefore, the possibility of tampering with the property during the period from 14-9-2004 to 12-10-2004 cannot be ruled out. The learned A.A.-G. Could not controvert the above factual position, therefore, the Chemical Analyzer's report loses its importance. It appears that the sample received by the Chemical Analyzer was not the same which was sent to him for examination and report.
7. The entire case hinges upon the report of Chemical Analyzer but the same has been discarded, as such, the prosecution has failed to prove that the property allegedly secured from the possession of the appellant was chars. Thus, the prosecution has failed to prove the case against the appellant beyond any reasonable doubt.
8. Above are the reasons of our short order dated 15-8-2007 by which we had allowed the appeal.