'KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,225/J of 2004 filed by Joseph Sunday, appellant who was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to undergo R.I. For ten years with a fine of Rs,50,000 in default one year S.I. The conviction and sentence was recorded by learned Additional Sessions Judge, Lahore vide judgment dated 16-6-2004.
2. Briefly stated the facts of the case are that the complainant being a Custom Officer was checking the luggage of the passengers going to Masqat from Lahore in the Gulf Airline flight No,GF.769 and during the checking Joseph Sunday holding Nigerian passport came on the counter and put his luggage. On being suspected search was made and as a result of checking, from a cartoon belonging to Joseph an oven was recovered. The said oven was broken and six bags of aluminum were found lying in it having white power. The same were taken out and on weighing their weight was 7300 KG. During the course of investigation four accused were also found involved in the smuggling of heroine. They too were arrested. After completion of investigation five accused were sent to face the trial.
3. At the trial prosecution in order to prove its case produced seven witnesses in all. The accused in their statements under section 342, Cr .P.0 . Pleaded false implication. However, after conclusion of the trial except the present appellant, the remaining accused were acquitted.
4. Learned counsel for the appellant submits that allegation against the appellant is that 7.300 KG of heroin was recovered from an oven which the appellant was carrying in a cartoon but neither the oven nor the aluminum bag were taken into possession by the Investigating Officer. Further submits that occurrence had taken place on 3-10-2003 (sic) while the samples were received in the office of chemical examiner on 21-3-2003 (sic) without any explanation. According to learned counsel there is no evidence on record to show as to who took the sample to the office of Chemical Examiner. Adds that there is also no evidence on record with regard to safe custody of the heroin in the godown. It is maintained that according to case of the prosecution two samples of five grams heroin were prepared but only one packet was received in the office of Chemical Examiner. With this background it is submitted that the prosecution has miserably failed to prove its case against the appellant and he is entitled to acquittal.
5. On the other hand learned Additional Prosecutor General submits that the appellant was apprehended at the spot; he is a foreigner; the custom officials have no ill will against him; huge quantity of heroin was recovered from the appellant all the prosecution witnesses have implicated him and above all is the positive report of the Chemical Examiner.
6. We have heard learned counsel for the parties and have minutely gone through the record with their able assistance. The case of the prosecution is that the appellant was apprehended at the spot with a cartoon, which he was having with him and on checking the same an oven was found having heroin in it. It is correct that considerable quantity of heroin was recovered from the appellant but at the same time we have to see whether the prosecution has proved its case beyond any shadow of doubt against the appellant or not? The answer to this is big No for the following reasons:--
(i) The oven from which six aluminum bags of heroin were recovered was never taken into possession by the Investigating Officer.
(ii) There is no evidence on record for the safe custody of the narcotic in the godown.
(iii) The alleged two samples containing five grams heroin each were taken to the office of the Chemical Examiner by one Ishfaq from the Custom department but he was neither cited as a witness in the calendar of witnesses nor was produced as a P.W. Before the trial Court.
'We have also gone through the report of Chemical Examiner Exh.PE. No weight of the narcotic has been mentioned therein. The report speaks of only one packet and not two when according to case of the prosecution two packets containing five grams of heroin each were sent to the Chemical Examiner.
'For all these reasons we are of the considered opinion that the prosecution has not been able to prove its case against the appellant beyond any shadow of doubt rather the doubts are floating on the surface of the record. It being so, we accept the appeal filed by the convict appellant, set aside the conviction and sentence recorded against him by the trial Court vide impugned judgment and acquit him of the charge.
'The appellant is in jail and he shall be released forthwith if not required to be detained in any other case.