' ASIF SAEED KHAN KHOSA, J.-- Tariq Abdullah appellant was convicted for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 vide judgment dated 24-1-2001 rendered by the learned Additional Sessions Judge, Khanewal and was sentenced to imprisonment for life and a fine of Rs,50,000 or in default of payment thereof to undergo simple imprisonment for six months.
The benefit under section 382-B, Cr.P.C. Was extended to him. The appellant has challenged his conviction and sentence before this Court through the present appeal.
' According to the prosecution during the interrogation of another criminal case the appellant had led a police party to a place in Chak No,42/10-R within the area of Police Station Sadar, Khanewal and by digging some earth below a tree near a canal bank he had retrieved and then produced a bag before the police which bag contained charas weighing 10-1/2 kilograms and opium weighing 7 kilograms. The said narcotic substances had been secured by the police from the possession of the appellant at about 9-30 p.m. On 7-7-1999 F.I.R. No,250 was subsequently registered in that regard during the same night at Police Station Sadar, Khanewal in respect of offences under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and section 9(b) of the Control of Narcotic Substances Act, 1997 at the instance of Muhammad Hanif, SI/SHO. Later on a report regarding samples of the recovered substances had been received from the Chemical Examiner in the positive. Upon completion of the investigation a challan was submitted before the learned trial court which framed a charge against the appellant to which he pleaded not guilty and claimed a trial. During the trial the prosecution had produced six witnesses in support of its case against the appellant, including Muhammad Ashraf, A.S.-I. (P.W.2) and Muhammad Hanif, S. -I. /S . H .0. (P. W . 6) who had deposed about the alleged recovery of narcotic substances at the instance of the appellant. In his statement recorded under section 342, Cr.P.C. The appellant denied and controverted the allegations of fact levelled against him by the prosecution and professed his innocence. He, however, opted not to make a statement on oath under section 340(2), Cr.P.C. And did not produce any witness in his defence. Upon conclusion of the trial the learned trial court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, he was convicted and sentenced by it as mentioned and detailed above. Hence, the present appeal before this Court.
3. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance.
4. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have straightaway observed that the prosecution had failed to establish with any degree of certainty that the substances allegedly recovered from the appellant's possession were indeed narcotic substances. We have noticed in this context that according to the F.I.R. And the Memorandum of recovery (Exhibit-PB) the narcotic substances allegedly recovered at the instance of the appellant were found in a Gattoo (a bag generally used for storing fertilizers) and charas and opium had been kept in that Gattoo in two separate shopping bags. The F.I.R. As well as the above mentioned Memorandum of Recovery further show that one sample of 50 grams was taken from the shopping bag containing charas and another sample of 50 grams was obtained from the other shopping bag containing opium. Subsequently the samples so taken were sent to the Chemical Examiner for their analysis. The report of the Chemical Examiner produced in this case by the prosecution as Exhibit-PD, however, shows that the samples analyzed by the Chemical Examiner were 40 in number and the weight of every sample was 200 grams. It is, thus, apparent on the face of the record that the samples analyzed by the Chemical Examiner were not those which were taken immediately upon recovery of the above mentioned substances A at the instance of the appellant. The learned Deputy Prosecutor-General as well as the learned counsel for the State have, however, maintained before us that the Chemical Examiner had found that the original samples sent to it were not sufficient or were inconclusive and, thus, he had asked for fresh samples of the recovered substances and later on such fresh samples had been taken from the recovered substances and it was on the basis of such fresh samples that the Chemical Examiner had prepared his report which had been relied upon by the prosecution as Exh.PD. In order to appreciate this submission of the learned Deputy Prosecutor-General and the learned counsel for the state we have gone through the record of this case from cover to cover but have remained unable to find any application by any person or authority seeking any permission from the learned trial court or from any other authority or forum for taking fresh samples from the recovered substances. There is, thus, no explanation available on the record of this case as to how the original two samples weighing 50 grams each had subsequently become 40 samples weighing 200 grams each. In this view of the matter the prosecution had completely failed to connect the report of the Chemical Examiner (Exhibit-PD) with the substances allegedly recovered at the instance of the appellant. There is, thus, no other option available to us but to accept this appeal. In somewhat similar circumstances a convict-appellant had been acquitted by this Court in the case of Mst.
Fatima v. The State (2002 PCr.LJ 32).
5. For what has been discussed above a conclusion is inescapable and irresistible that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded by the learned trial court are set aside and the appellant is acquitted of the charge by extending the benefit of C doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case.