' SH. ABDUL RASHID, J.---Khalid alias Baoo son of Niamat Ali Caste Jat Bhutta resident of Mohallah Ahmadpura, Muridke, District Sheikhupura and Rashid Ahmad son of Manzoor Hussain Caste Changar resident of Bajjiwala Chak No,30, Muridke, District Sheikhupura, both the appellants were tried by Zahoor-ul-Haque Rana, Addl. Sessions Judge, Ferozewala, in case F.I.R. No,141, dated 23-4- 2000 under Articles 3/4 of Prohibition (Enforcement of Hadd) Order (4 of 1979) read with section 9(c) of the Control of Narcotic Substances Act, 1997 registered at Police Station Muridke and vide judgment, dated 18-9-2001 were convicted under section 9(c). Ibid and were sentenced to imprisonment for life with benefit of section 382(b), Cr.P.C. Feeling aggrieved the appellants had filed this Criminal Appeal No,352-J of 2001 through jail, whereas Rashid Ahmad appellant No,2 had filed Criminal Appeal No,1688 of 2001 through Ch. Muhammad Ashfaq Bhular, Advocate. Both the appeals are being disposed of together through this judgment.
2. Briefly stated the facts of the prosecution case are that on 23-4-2000 at about 12-30 noon Muhammad Rashid Inspector S.H.O. Along with his subordinate police officials had on spy information stopped Car No, SGD 5000 in which the appellants were seated and recovered two sacks from the said car, one containing 30 Kg. Of Charas and the other containing 20 Kg. Of Opium and, took into possession vide memo. Exh.P.C. Which was attested by Muhammad Afzal and Shahbaz Ali A.S-Is. Out of the said quantity of Charas and opium 10 grams each were made into a sealed parcel and sent to the office of the Chemical Examiner for analysis whose report tendered as Exh.P.F. Confirmed the contents to be that of Charas and opium. Upon conclusion of the investigation the appellants were challaned to face trial. These were charged under Articles 3/4 of Prohibition (Enforcement of Hadd) Order 4 of 1979 read with section 9(c) of C.N.S.A. To which they pleaded not guilty and claimed to be tried.
3. The prosecution produced Shahbaz Ali A.S-I. P.W.1 Muhammad Ramzan Constable P.W.2, Bashir Ahmad Head Constable P.W.3, Muhammad Rashid Inspector S.H.O. P.W.4 and Farmaish Ali S-I. P.W.5 and tendered the report of Chemical Examiner Exh.P.F. In support of its case and closed the trial.
4. The statements of the appellants/ accused under section 342, Cr.P.C. Were recorded and all the incriminating prosecution evidence was put to them which they repudiated and opted to produce defence evidence. The appellants produced Muhammad Amin D.W.I. Sh. Sarfraz Ahmad D.W.2 and Muhammad Nawaz D.W.3 who all stated that on the night between 20/21-4-2000 they were awakened by the noise and they found that police vehicle was parked in front of the house of Khalid appellant which is situated in the same Mohallah and the police had apprehended Khalid appellant from his house and dragged him away in the vehicle. Khalid appellant also appeared on oath under section 340(2), Cr.P.C. In disproof of the prosecution allegation and stated that about 3/4 days prior to his apprehension he had a quarrel with Malik Chatha on Rickshaw Adda who threatened to involve him in a false criminal case because of his friendship with D.S.P. Liaqat and S.P. Ghulam Muhammad Kalyar and that on 21-4-2000 at about 3 a.m. While he was asleep at his house when the police party headed by Rashid Ahmad Inspector S.H.O. Police Station Muridke along with 20/24 officials raided his house and apprehended him.
5. Upon conclusion of the trial the appellants were convicted and sentenced to life imprisonment.
6. It has been mainly argued by the learned counsel for the appellants that after registration of this case vide F.I.R. No,141 of 2000 at about 12-30 p.m. The same Muhammad Rashid Inspector S.H.O.
Comprising of same police party raided and apprehended one Riasat Ali and recovered Charas weighing 20 Kg. And opium weighing 12 Kg. And registered case F.I.R. No,142 on the same day i.e, 23- 4-2000 at about 4 p.m. i.e, just about 2 hours after registration of the present case and that the accused in the said case F.I.R. No,142 was tried by the same learned Addl: Sessions Judge and was convicted to 10 years' R.I. And vide judgment reported in Riasat Ali v. The State 2004 PCr.LJ 361 Lah.
He was acquitted and the evidence of the P.Ws. Who are the same in the present case had been disbelieved and that even in the present case the allegedly recovered narcotics had not been produced before the Court during trial and the proceedings of the present case also suffer from the same legal defects, lacunas and illegalities which obtained in the trial of case F.I.R. No,142.
Therefore, according to the principle laid down in the said judgment the appellants are also entitled to acquittal. It has also been argued that the report of Chemical Examiner obtained during investigation is neither on the regular form nor the same was properly got exhibited during trial and the report is not clear whether the opinion of the expert is qua the samples of this case or of some other case and that the main plank of incriminating material against the appellant is thus not free from doubts.
7. We find that as reported in Riasat Ali v. The State 2004 PCr.LJ 361, Lah. The same police officials on the same day at 4 p.m. Had raided one Riasat Ali and allegedly recovered 20 Kgs. Of Charas and 12 Kgs. Of opium. The same set of witnesses appeared in the said case and their testimony was disbelieved and A consequently the said appellant was acquitted. The present case also suffers from the same defects as were observed in the said case registered vide F.I.R. No,142. The case property i.e, recovered narcotics were not produced before the trial Court and unless the same were produced it could not be held that the same were recovered from the appellants. The non- production of B the case property in the Court is fatal to the prosecution case and destroys its very foundation.
8. We also find that the report of Chemical Examiner which was obtained during investigations is neither on the regular form nor the same was properly got exhibited during the trial. The perusal of report available on the record indicates that the Chief Chemical Examiner has given his opinion on the backside of the docket which was issued from the police station while sending the samples to the office of the Chemical Examiner. This report is not clear whether opinion of the expert qua the samples of this case or of some other case, therefore, the genuineness of this report in these circumstances is not free from doubt and it is not safe to rely upon the same.
9. In view of the above facts and the judgment recorded in F.I.R. No,141 of 2004 reported as Riasat Ali v. The State 2004 PCr.LJ 361 Lah. Both the appeals are D accepted and the conviction of the appellants recorded under section 9(c) CNSA is set aside and they are acquitted of the charges.
They are in jail and shall be released forthwith if not required in any other case.