1. ' MRS. SYEDA TAHIRA SAFDAR, J.---The appellant being aggrieved of judgment dated 4-4-2006 of Special Judge, under Control of Narcotic Substances Act, 1997, Quetta, whereby he has been convicted of offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997, while sentenced to suffer life imprisonment with fine of Rs.50,000, in default to suffer further imprisonment of three months, preferred present appeal praying for setting aside of the same and his acquittal of the charge. It is his contention that the trial Court misappreciated the facts, misapplied the law and drew conclusion which is contrary to law and facts. The contradictions in evidence are material, but not considered, while prosecution failed to prove the case through impartial and independent witnesses. The benefit of doubt is not exercised in his favour.
2. Furthermore, the facts that sample of recovered charas was sent to FSL after delay of seventeen days, while all the recovered charas was not sent for analysis, only 100-grams were sent. Further, the alleged recovered charas was raw, thus the trial court has no jurisdiction to try the case, were not considered by the trial Court. It is also his contention that he being less than 18 years of age thus required to be tried by the Juvenile Court.
3. ' During course of arguments the main contention of the learned counsel for the appellant was that recovery is not proved beyond shadow of doubt. While admittedly no investigation proceedings were held at the site. The trial Court failed to consider the contradictions appearing in statements of witnesses and also the fact that the suspected material was sent to FSL after delay of 17 days.
4. While in rebuttal it was contended by the learned Prosecutor General that there is specific evidence on basis of which recovery is proved to be effected from possession of the accused person. Large quantity of charas has been recovered from possession of the appellant. Minor contradictions in the statements of witnesses are required to be overlooked. Further, it has not been suggested from the defence side that the seal present on parcel containing recovered material was not intact. After hearing the arguments record is also perused.
5. ' As per record F.I.R. No,69 of 2005 of Thana Satellite Town, Quetta was registered on 19-3-2005 on report of Abdullah Jan S.-I./S.H.O. It has been reported therein that while he along with other officials were on patrolling duty, on receiving secret information that a person namely Abdul Jabbar, doing business of narcotics, is present near hotel situated at Bus Adda and waiting for bus to proceed to Sindh, he along with informer and other police officials reached at Bus Stop at 7-00 p.m. And on pointation of the informer apprehended the appellant holding one black and white coloured bag on his shoulder and one plastic black coloured bag in his hand, who was trying to escape, on search from both bags baked charas in shape of rods and cubes (URDU TEXT) was recovered, on counting rods were 1978 in numbers, while the cubes were 67 in numbers, which were found to be 42 kilo grams on weighing. The recovered charas was taken into custody; 100-grams were separated for analysis. Parcels and recovery memo were prepared. Recovered material was sent for analysis, while report of FSL was also received, which was in positive. On completion of investigation, case was challaned. Charge was framed on 29-6-2005, which was denied by the appellant. During course of trial three witnesses appeared on behalf of the prosecution, while in defence the appellant neither recorded his own statement on oath, nor produced any witness. On completion of trial the court finding him guilty of the charge, thus awarded him sentence through judgment dated 4-4-2006, which is assailed in present appeal.
6. ' The appellant has raised several grounds while challenging the impugned judgment. It is his contention that as the charas allegedly recovered is raw, thus the trial Court has no jurisdiction to entertain the case. During course of arguments his second contention was to the effect that the appellant is less than 18 years of age, thus his case was required to be tried by the Juvenile Court.
7. While arguing the case the learned counsel for the appellant did not advance any arguments on respective points. Apart from the same there is nothing on record whereby it has been alleged that the recovered charas was raw. Secondly the appellant, while got examined by the court during trial, deposed his age as 18/19 years, nothing contrary has been produced by him. Apart from the same the appellant never raised any objection to same effect before trial Court, as such he, at this stage, is not entitled to raise such a plea.
8. ' The appellant mostly stressed that the material present on record is neither properly assessed, nor the contradictions appearing in statements of prosecution witnesses were considered. The trial Court relied on statements and material produced by the prosecution. Three witnesses appeared and got recorded their statements from prosecution side. P.W.1 Abdullah Jan. IP is the complainant, who not only received the secret information, raided and apprehended the appellant, while recovered the suspected narcotics from his possession. He got prepared the report/Fard-e-Biyan {{URDU TEXT}}Exh.P/1-A, he also prepared the memo of recovery of charas and other articles, separated 100-grams from the recovered charas and prepared the parcels. P.W-2 Ishaque Ali S.-I.
9. Is witness of the occasion and also witness of the memo. Of seizure. P.W.3 Abdul Aziz S.-I. Is the appointed Investigation Officer, who conducted the investigation, while recorded statements of witnesses and sent the suspected material to FSL for examination. All the three witnesses were members of the police party, which was on patrol duty, which conducted raid on secret information and apprehended the appellant, from whose possession the alleged charas was recovered. As per their statements on 19-3-2005, when they were on patrol, they got information about transportation of narcotics and presence of the accused person namely Abdul Jabbar at road, who was waiting for the bus. They reached the site and on pointation of informer apprehended the appellant, who on having their glance, was trying to escape. On his search from bag and shopping bag in his possession baked charas in shape of bundles containing rods and cubes were recovered. On counting the total numbers of rods were 1978 and cubes (URDU TEXT) were 67. While from recovered charas 100-grams were separated for examination. Two separate parcels were prepared. P.W.1 during course of cross-examination deposed that the recovered material was weighed in balance, which was in their custody, while no weights were used, as the same were not required. He further asserted that from whole of recovered material small pieces were separated for purpose of analysis, but he was unable to describe the total number and weight of each piece so recovered. P.W.2 gave statement corroborating statement of P.W.1, but during course of cross-examination he deposed that the balance which was used for weighing was balance of such a nature which is ordinarily used in shops, while weight of 5 and 2 kilograms were used for the purpose. But he was unable to disclose that the sample was obtained from how many rods and cubes, also unable to describe separately the number of the samples taken from rods and from cubes. According to him memo. Of recovery was prepared by Abdullah Jan. P.W.3 Abdul Aziz is Investigation Officer only deposed about recording of statements of witnesses under section 161, Cr.P.C, sending of parcel to FSL, while obtaining of report from FSL. During course of cross-examination he also deposed that the balance which was used was ordinary in nature as used in shops for purpose of weighing, while weights of 5 and 10 kilo grams were used. He was unable to depose that from how many rods samples were taken for analysis, but added that from several rods material was separated. Further, deposed that the sample was taken from all the cubes ({{URDU TEXT}}). He admitted the suggestion that the cubes which were produced before the court some of them are complete, having no mark of separating of pieces. He also unable to disclose that how many pieces were separated, nor even their weight. The Report submitted after examination of suspected material by Forensic Science Laboratory is produced as Exh.P/3-B. The perusal of the same reveals that parcel was received on 4-4-2005 containing 100-grams of suspected material. On analysis it was found to be charas Baked.
10. ' The appellant in defence though neither recorded his statement on oath, nor produced any evidence. But during examination made by the court, took plea that as Abdullah Jan (P.W.1) is his neighbour and there was fighting between children, that is why the witnesses falsely deposed against him, on instance of said Abdullah Jan S.H.O. Who has personal grudge with him. It was also suggested to P.W.2, who showed his ignorance. While P.W.3 on suggestion denied that he on instigation of S.H.O falsely involved him in present case. P.W.1, the S.H.O. Also denied the suggestions made in same respect. Nothing has been placed on record from which it can be established that both P.W.1 and the appellant are residents of same area having dispute and due to the same he has been falsely involved in the case.
11. ' Apart from the defence plea taken by the appellant during course of trial, the prosecution has to establish that contraband article i,e, charas had been recovered from possession of the appellant.
12. All the three witnesses though in their statements supported each other in respect of fact of effecting of recovery from the appellant. But they surely differ and contradicted each other about the nature of balance used for weighing the recovered material, as per P.W.1 the balance which was used was with hook and without weights which were not needed. While on the other hand as per P.W.2 and P.W.3 the balance was ordinary which is used in shops, while weights of 5 and 10 kilograms were used. Further, as per P.W.2 the recovered material was weighed several times separately. While on the other hand P.W.1, the person who conducted the proceedings, stated that the recovered material was weighed collectively, not separately. While as per P.W.3, the Investigation Officer, deposed that as each rod was not weighed separately, as such he is unable to describe weight of each rod. All the three witnesses though present at the spot differ with each other on this point, which surely creates some doubt.
13. Though it is case of prosecution that out of recovered material, which is shown as 42-kilo grams, 100-grams was separated, which was sent to FSL for analysis. This quantity which was sent to FSL is also mentioned in the Report, there is no contradiction to this effect. But it is to be noted that according to prosecution witnesses the recovered charas was in shape , of rods and big cubes, which on counting A were found to be 1978 rods and 67 cubes. In the circumstances it is requirement of law that specimen from each of the rods and cubes was to be taken, whereafter, send them for examination. But to the contrary in present case this has not been done. Though P.W.1 stated that from whole material small pieces were separated for analysis, but he was unable to describe the numbers of the pieces so separated. While on the other hand P.W.3, the Investigation Officer, also unable to disclose that from how many rods the specimen for analysis were separated. Rather he only deposed that from enough rods material was obtained, he did not disclose the number of such rods B from which material was taken. According to him the pieces were separated from all the cubes, but contrary to the same it has been observed and also admitted by him that some of the cubes produced before the court are complete in all respect. He also unable to describe the number of pieces so separated. From this set of evidence a reasonable doubt appeared, which surely affect case of the prosecution. Though sending of whole recovered material is not requirement of relevant law, but samples must have been taken from each rod and C also from each cube, which will be sufficient to prove whole the material as narcotics, but this has not been done in present case. Rather 100-grams from allegedly recovered material has been sent for chemical examination to said extent report has been made in positive. But as discussed hereinabove the material was not taken from whole of the recovered contraband, rather from some of recovered material samples were taken, that too not specific. Though a huge quantity of narcotics is allegedly to be recovered, but the investigating agency did not fulfil the D requirement of law, rather their incompetency and negligent conduct surely damage the case, which is unfortunate.
14. ' In addition as per P.W.1 after effecting of recovery written report and memo. Of recovery were got prepared by Abdul Aziz A.S.-1. i,e, P.W.3, while sitting in the vehicle. But contrary to the same as per P.W.2 the seizure memo. Was written by Abdullah Jan S.H.O. i,e, P.W.1, while it was prepared at site at land. Both the witnesses contradicted each other in this point also. Rather P.W.3 Abdul Aziz is completely silent to this effect.
15. Keeping in view the above mentioned facts a reasonable doubt appeared, which makes the recovery of narcotics from possession of appellant doubtful, which was required to be considered and benefit of the same was required to be exercised in favour of the accused person. But the learned trial Court failed to consider these aspects of the case, rather considered them minor contradictions, thus of less value. Admittedly the allegedly recovered material as a whole was not sent for chemical examination, nor the samples were obtained from whole material as per requirement of law, this irregularity not only destroys the case of the prosecution, but also creates reasonable doubt, benefit of which is to be exercised in favour of the accused person to meet the ends of justice.
16. ' In view of above discussion the appeal is accepted. Impugned judgment dated 4-4-2006 is hereby set aside. Appellant Syed Abdul Jabbar son of Syed Hazrat Ali is acquitted of the charge under section 9(c) of Control of Narcotic Substances Act 1997 pertaining to F.I.R. No,69 of 2005 Police Station Satellite Town Quetta. He be released at once, if not required in any other case.