1. ' GHULAM SARWAR KORAI, J.--- The Jail Appeal is directed against the judgment dated 13-10-2008 passed by the Court of learned Special Judge for C.N.S., Khairpur Case No,13 of 2007 whereby the appellants Mubarak and Sanwal were tried for an offence punishable under section 9(c) Control of Narcotic Substances Act, 1997 ("C.N.S. Act"). Appellant Mubarak was convicted and sentenced to suffer imprisonment for life under section 9(c) C.N.S. Act and fine of Rs,50,000 in default thereof to suffer S.-I. For two years more, while appellant Sanwal was convicted and sentenced to suffer R.I for ten years and to pay fine of Rs,25,000 in default thereof to undergo S.-I. For further period of one year. Both the appellants were extended benefit of section 382-B, Cr.P.C.
2. ' The facts of the prosecution case are that on 25-4-2006 at 2-30 p.m. The F.I.R. Was registered of an incident while allegedly took place on the same date. According to the complainant, he accompanied with AETO Altaf Hussain Kalhoro, EJ Rajib Ali, ED Muhammad Yasin, ED Mukhtar Ali, ED Anwar Ali, EC Qurban Ali, Bux Ali, EC Ghulam Muhammad, EC Muhammad Bachal and EC Najab Din in uniform carrying investigation bag, proceeded on the Government Vehicle vide Roznamcha Entry No,2 at 12. Noon from Excise Police Station for patrolling and recovery of narcotic crimes. At about 1 pm the law enforcement party reached on the bridge of Rohri Canal link road leading from Halani to Mehrabpur and saw two persons with two plastic bags lying near them. Seeing the police party, they tried to slip away but being suspected, were followed by the former and a distance of about 100 paces both were arrested. On enquiry, the person holding the blue coloured bag disclosed his name as Mubarak son of Jam Jamali, residing in his own house near village Shah Bux Rind, Taluka Kandiaro, whereas the second person holding the green coloured bag disclosed his name to be Sanwal son of Jam Jamali, also residing in his own house near village Shah Bux Rind Taluka Kandiaro. The personal search of the persons secured one note of Rs,1000 and one note of Rs,500 (i.e., a total Rs,15000 from the front pocket of accused Mubarak, while one note of Rs,1000 was secured from the front pocket of accused Sanwal. 19 slabs of the Charas and one packet like rod of Charas was lying in the blue coloured bag which was allegedly recovered from accused Mubarak and 10 packets of Charas like rods were recovered from the green coloured bag allegedly owned by accused Sanwal. The Charas recovered from the blue coloured bag, when weighed, came to 20 Kgs. Whereas the Charas recovered from the green coloured bag was weighed and found to total 10 Kgs. Two Pieces of Charas, one being one of the slabs and the other being one of the rods were taken out and were separately sealed for chemical examination. Thereafter the accused and the alleged recovered property were brought to the Police Station, where F.I.R. On behalf of the State was registered and the investigation in the case was conducted by complainant himself. Thereafter, the final report was filed and copies thereof were supplied to the accused.
3. ' The charge against both the appellants was framed to which they pleaded not guilty and claimed to be tried and their pleas were recorded vide Exhs.1, 2, 3 and 4 respectively.
4. ' In order to prove its case, the prosecution examined Shafiq Rehman complainant/Investigating Officer as Exh.5. He produced Roznamcha Entry, Exh.5-A, Mashirnama of the place of incident, arrest and recovery as Exh.5-B, F.I.R. As Exh.5-C, receipt of the Chemical Examiner as Exh.5-D and Chemical Examiner's report as Exh.5-E. P.W. Rehmat Ali was examined as Exh.6. Thereafter the prosecution closed its side by learned D.P.P./S.P.P. Vide Exh.7.
5. ' The statements of the appellants under section 342, Cr.P.C. Were recovered vide Exhs.8 and 9 respectively. Appellant Sanwal was also examined on oath vide Exh.10. He produced affidavit of one Miss Nazeeran as Exh.10-A, Nikahnama as Exh.10-B, thereafter the side of defence was closed by the learned Advocate for the accused as Exh.11.
6. ' The learned trial Court framed the points requiring determination as under:-- Point No,1 Whether accused Mubarak and Sanwal on 25-4-2006 at about 1-00 p.m. Arrested at the bridge of Rohi canal situated on Hallani-Mehrabpur link road district Naushahro Feroze by the Excise party headed by the complainant and recovered 20 kilograms Charas (lying in blue bag) from the possession of accused Mubarak and 10 kilograms Charas (lying in green colour bag) from the possession of accused Sanwal, as alleged or otherwise?
7. Point No,2 What offence (s), if any, is/are committed by the accused?
8. ' Point No,1 was decided in affirmative and as regards Point No,2, the appellants were convicted and sentenced under the impugned judgment as stated above.
9. ' Heard the arguments of Mr. Sardar Khan Lashari, learned counsel for the appellants and Mr. Fazal Muhammad Khokhar, learned SPP for the State. The latter opposed the appeal and prayed that the judgment of the trial Court may be maintained.
10. ' The learned counsel for the appellants contended that the complainant has been examined in his due capacity as the complainant and Investigating Officer, as such he was naturally interested with his case. He also contended that the complainant was accompanied by ten subordinate police personnel but the prosecution examined only Rehmat Ali as witness, who is also subordinate of the complainant/ Investigating Officer. He further contended that a joint Mashirnama of arrest and recovery of two accused/appellants was prepared and one F.I.R. Was registered, and both the accused were tried jointly. According to the learned counsel, the cases of the two accused ought to have been proceeded with separately by the learned trial Court. He also further contended that the appellants at the most were liable to be convicted only for the quantity which was sent to the Chemical Examiner and for which the positive report had been submitted.
11. ' On an examination of the record and after considering the submissions of the learned counsel, we are inclined to accept the points raised by the learned counsel for the appellants. The first and most crucial point is as regards what was sent for chemical examination. As noted above, one slab of the Charas like substance and one rod was sent by the excise police for this purpose. Now all the slabs, as per the prosecution case, were recovered from the blue coloured bag (recovered from appellant Mubarak). Thus, (subject to what is stated below), it could be said that the substance that was recovered from Mubarak was chemically tested. However, the rod like material was found both in Mubarak's bag and in Sanwal's bag. The prosecution evidence does not however indicate whether the rod that was sent for chemical examination was taken from Mubarak's bag or from Sanwal's bag. It cannot therefore be said whether the material recovered from Sanwal was at all chemically tested or not. This point was also taken by counsel for the appellants in the cross examination of Shafiq Rehman and when the appropriate suggestion was made to him, he deposed as under:--- "It is incorrect to suggest that sample from the slab type Charas alleged to be recovered from accused Mubarak was not sent to the Chemical Examiner for analysis purpose. It is incorrect to suggest that rod type Charas alleged to be recovered from accused Sanwal not sent to the Chemical Examiner for analysis purpose."
12. ' He further deposed as under:-- "We did not stop our mobile at any place, then came to Halani thereafter proceeded towards Mehrabpur."
13. ' While P.W.2 Rehmat All in his cross-examination deposed as under:--- "We stopped vehicle at so many places."
14. We also note that according to the report of the Chemical Examiner, two sealed packets were received by him. Mubarak's name was on packet No,1, while Sanwal's name was on packet No,2.
15. According to the Chemical Examiner's report, the packet marked as packet No,1 was found to contain black brown rods, while packet No,2 was found to contain one black brown slab. But according to the prosecution's own case, no slabs were found in the green coloured bag recovered from Sanwal. Thus, not only is it not established whether any substance recovered from Sanwal was at all sent for chemical examination, even the material that was sent (as per the report) contradicts the testimony of the Excise Officers. There is thus, a material contradiction between the contents of the F.I.R. And the report of Chemical Examiner. There is therefore clearly reasonable doubt as to whether the material allegedly recovered from Sanwal was at all chemically analyzed in order to determine its composition and thus establish whether it came within the scope of the C.N.S. Act. We are also shocked to see that the Chemical Examiner sent his report to Excise Inspector, EPS, Kandiaro vide Dispatch No,676/2006 dated 9-5-2006 while this report was signed by Dr. Tariq Abbass Dareshani, Chemical Examiner, Government of Sindh Chemical Laboratory Sukkur at Rohri on 25-5-2006, after 16 days from the date of dispatch of the same. This would indicate that when the report was dispatched, it was unsigned, and was therefore either signed in the Office of Excise Department or in the Court.
16. ' For the foregoing reasons, we are of the considered view that the prosecution has not been able to establish its case against appellant Sanwal beyond reasonable doubt. Therefore we allow the appeal of appellant Sanwal and set aside conviction and sentence awarded to him under the impugned judgment and acquit him. As regards appellant Mubarak is concerned, in view of the judgment delivered by this Court in the case of Muhammad Nawaz v. The State 2007 M LD 1846, we hold that for sentencing purposes, he is only responsible for the quantity which was separated for sample for chemical examination, and the report of which was positive. The amount was only 1 Kg.
17. Of Charas, for which the maximum punishment under section 9(b) of the C.N.S. Act is 7 years.
18. Therefore, while dismissing the appeal of appellant Mubarak, we reduce his sentence from life imprisonment to seven years and also reduce fine imposed upon him from Rs,50,000 to Rs,15,000 in case of default thereof, he shall further undergo R.I. For three months more.