1. ' MRS. YASMIN ABBASEY, J.- Being aggrieved by judgment dated 6-12-2005 this appeal has been directed by appellant Ghulam Ali Moghimi who was convicted by Special Court Control of Narcotic Substances, Karachi and sentenced to suffer 10 years' R.I. With fine of Rs, 3,00,000 for offenc e punishable under section 9(c) of Control of Narcotic Substances Act, 1997. In non-compliance of payment he had to undergo R.I. For 2 years more.
2. ' Case of prosecution is that on the night of 3rd/4th December 2003 when appellant was proceeding to London via Abu Dhabi by Gulf Airline's Flight No,GF- 751, due to suspicion his luggage was checked in presence of witnesses namely Abdul Razzak Babar and Ashraf Mahmood. On search of suitcase three cotton embroided sofa cushion covers containing two packets of heroin powder and one packet of opium was recovered. As such appellant along with case property was taken in custody. Heroin weight was found to be 1400 grams whereas opium was 1200 grams. Three samples, each from heroin and opium were taken from the total substance. They were sealed under the signatures of above named witnesses. On the basis of recovery, case was registered against the appellant and finally - was challaned in Court.
3. ' Charge was framed against the appellant under section 9(c) of Control of Narcotic Substances Act, 1997.
4. ' Prosecution examined in all three witnesses namely SPO Customs Muhammad Anwar Saleemi, mashir SPO Customs Ashraf Mahmood and Investigating Officer, S.P.O. Customs, Nihar Muhammad Khan.
5. ' Heard Mr. Abdul Razzak learned counsel for the Appellant and Mr. Mahmood Alam Rizvi learned standing counsel for the State.
6. ' According to P.W.l S.P.O. Customs, Muhammad Anwar Saleemi, who was senior Preventive Officer, in pursuance of his duty, luggage of appellant proceeding for London was checked. Though on verbal enquiry appellant declined to have any narcotic substance in his luggage but being dissatisfied with his reply, on opening the suitcase, carried out by him, three sofa's cushion covers were recovered. On opening those sofa's cushion covers out of two covers heroin powder wrapped in brown colour polythene packets was found whereas in third cover opium was found wrapped in polythene packet. It is further stated that when, even empty suitcase was found heavier than usual, the back wall of the suitcase was cut down where from again one polythene bag containing heroin powder was recovered weight of all the heroin powder recovered from sofa cushions and the back of suitcase was weighed and was found to be 1400 grams in total and opium was 1200 grams.
7. ' Statement of this P.W.l to the extent of recovery of heroin and opium from the luggage of appellant has been supported by P.W.2 Ashraf Mahmood, who is mashir of recovery. Statement of both these witnesses also corroborated to the extent that after separating the samples they were sealed then and there and signatures of both recovery witnesses were obtained on samples as well as main property.
8. ' According to prosecution 3-3 packets each of heroin and opium separated from the main narcotic substance were sent to Chemical Examiner for report but the perusal of Chemical Examiner report reveals that only one packet each of heroin and opium was sent to him, that too with the delay of about three months with no plausible explanation, neither of rest two packets each of heroin and opium nor of delay in sending the same. However, learned standing counsel has tried to cover up this lacuna by referring the statement of P.W.l wherein the rest packets of samples of heroin powder and opium were, produced in Court. Again the statement of P.W.l with the admission that the case property produced as article "B" does not bear the signatures of recovery witnesses on them, as has been deposed by him in examination- in-chief, further creates a doubt to the fact that whether packets of samples and the main case property produced as article "B" are the same, which alleged to had been recovered from the possession of the appellant.
9. Neither the Investigating Officer in his statement recorded subsequent to P.W.l, and P.W.2 had clarified this discrepancy and substantiate the recovery nor learned Standing Counsel during the course of argument has been able to explain this position. Even the delay in sending the case property to Chemical Examiner after three months in spite of putting the specific question in this regard has not been explained by the Investigating Officer.
10. ' In view of evidence placed on record we are of the view that the case of prosecution appears to be doubtful, as if it is taken that narcotic substance was recovered from the possession of appellant, then placing another property in place of the original one seems to be very unreasonable and unlogical. Admitted fact that the property produced in Court does not bear signature of witness, as were said to had been obtained at the time of recovery, forced to hold that the same has been foisted on appellant. Lacunas and discrepancies are appearing on record remain unexplained by learned standing counsel.
11. ' Though by virtue of section 29 of Control of Narcotic Substances Act until and unless the contrary is proved, it would be presumed that accused was in possession if illicit article, but even then prosecution had to come with clean hands. It is pointed out that initial burden to prove the possession etc. Is on the prosecution and burden shifts upon the accused after the prosecution discharge the said burden. Article 117 of Qanun-e-Shahadat Order would be relevant to quote which says that:-- ' "Burden of proof,-(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person in bound to prove the existence of any fact, it is said that the burden of proof lies on that person. "
12. So after denial of appellant, at the time of framing of charge, of the guilt alleged against him and apart from it even under presumed fact of possession it was for the prosecution to produce and prove the relevant and satisfactory evidence, beyond reasonable doubt, which had not been done in the present case. Hence giving benefit of doubt the conviction order dated 6-12-2005 is set aside and the appeal of the appellant is allowed.
13. ' These are the detailed regions of the order announced on 30-11-2006.