Sardar Muhammad Shamim Khan, J.--This judgment will dispose of Criminal Appeal No, of 447 of 2005.
2. The appellant Muhammad Bakhsh involved in case bearing FIR No, 05 of 2004 dated 03.05.2004 under Sections 9(c) of Control of Narcotic Substances Act, 1997, Police Station BMP Post Satta, Dera Ghazi Khan was tried by learned Addl. Sessions Judge, Tounsa Sharif, District Dera Ghazi Khan, who vide his judgment dated 19.05.2005 convicted the appellant Muhammad Bakhsh under Section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to Life Imprisonment with fine of Rs, 20,000/- and in case of default to undergo SI for four months. The appellant was also granted the benefits as contained under Section 382(b) of Cr.P.C.
3. The brief facts of the case, as narrated in the FIR are that during the night between 2nd and 3rd of May, 2004, Sajjad Ali along with Jahangir Naib Dafedar, Imran, Aqeel, Mazhar Aziz and Rehmat Ullah, Sawars was present in the area of Mouza Kanwan Bor, when at 05.00 a.m. he received a secret information that a person is mounting on a camel with some load and he is dubious. That he is going towards Chur Changaili and probably the camel load was narcotics. That on raid, the said parson would be arrested. On this secret information, Sajjad Ali Dafedar along with the informer and police officials went in pursuit of the said person. He reached the area of Chur Changaili at 06.30 a.m. and caught the person on the pointation of the informer. Said person disclosed his name as Muhammad Bakhsh. Search was conducted and as a result whereof the CHARAS weighing 21-kilos and 250-grams was recovered. 10-Grams out of the 17-packets was taken and sent to the Chemical Examiner for analysis.
4. Sajjad Ali started investigation and reported that the accused was responsible for keeping in his possession such huge quantity of CHARAS. Thereafter, investigation of this case was entrusted to Ghouns Bakhsh, Dafedar who concluded that the narcotics was in fact owned by one Lal and accused Muhammad Bakhsh was simply a carrier having received the sum of Rs,2100/- as rent for transportation of the load.
5. After the completion of the investigation, challan was prepared and submitted before the learned trial Court for trial. Charge against the accused was framed to which, he pleaded not guilty and claimed to be tried. In order to prove its case, the prosecution has examined as many as three witnesses.
6. After recording the prosecution evidence, the appellant was examined under Section 342 of Cr.P.C. wherein he opted to produce evidence in his defense and also to appear and depose on oath as required under Section 340(2) of Cr.P.C. In reply to the question that why this case is against you and why the PWs have deposed against you, the appellant Muhammad Bakhsh replied as under:-- "Infact the camel load was owned by Lal Muhammad Jafar who at the sight of the police party fled the place. I was a passer by and was going to get medicine for myself, but the police nabbed me unjustifiably. I did not know about the camel load. The PWs are police employees and they have made statements over zealously, being subordinate of the complainant-officer."
7. The appellant produced in his defence Ghulam Hassan Dafedar as DW-1 and the appellant himself appeared as DW-2.
8. After conclusion of trial, conviction and sentence recorded in Para No, 2 was passed against the appellant.
9. Through the instant appeal, the appellant has challenged the validity of the aforesaid judgment.
10.Learned counsel for the appellant contends that no independent witness was joined by the police in the recovery proceedings; that during investigation conducted by Ghulam Hassan, Dafedar, who appeared as DW-1 and deposed that the CHARAS recovered, was owned by one Lal, whereas according to the investigation of Ghos Bakhsh, Dafedar the Narcotics was infact owned by one Lal and the appellant Muhammad Bakhsh was simply a carrier having received rent of transportation of the load. Learned counsel for the appellant further submits that allegedly 17- packets containing CHARAS were recovered from the possession of Muhammad Bakhsh appellant and only one Packet containing only 10-grams of CHARAS was separated by mixing from the recovered packets which is illegal and Narcotics from all packets should have been separated for the analysis; that the alleged CHARAS was recovered on 03.05.2004 whereas it was sent to the office of Chemical Examiner on 11.05.2004 after the delay of about 8-days, so factor of manipulation in this regard could not be ruled out. Learned counsel for the appellant lastly submitted that original report of Chemical Examiner is not available on the file rather a duplicate copy of the same has been tendered in evidence by the prosecution which is Ex.PE and this duplicate copy was not proved by producing Chemical Examiner himself in the Court so this is a violation of mandatory provision of Section 510 of Cr.P.C. so this report cannot be used against the appellant. He prays for acquittal of the accused. Reliance has been placed on 2010 YLR 578, PLD 2003 Karachi 230, 2010 P.Cr.LJ. 360, 2005 P.Cr.LJ. 726 & PLD 2004 SC 856.
11.Learned DPG has contended that a huge quantity of CHARAS was recovered from the possession of the appellant, who was caught red handed, so the judgment should be maintained.
12.Learned DPG could not satisfy this Court regarding submission of duplicate copy of report of the Chemical Examiner regarding CHARAS, available on the file.
13.We have heard the learned counsel for parties and gone through the record.
14.It has been noticed that during Investigation, it transpired that alleged CHARAS recovered from the possession of the appellant was infact owned by one Lal and the appellant was simply a carrier having received rent for transportation of the load of the camel. 17-packets containing CHARAS were allegedly recovered from possession of the appellant but only 10-grams were separated for analysis through Chemical Examiner by mixing small quantity from all the packets. As from all the packets the CHARAS was not separated for analysis so it cannot be ascertained that all the packets were containing CHARAS or not. Report of Chemical Examiner Ex.PE, placed on the record is duplicate one which is contrary to mandatory provision of Section 510 of Cr.P.C. and prosecution did not prove the report of Chemical Examiner by examining the Chemical Examiner as a witness.
The report of Chemical Examiner Ex.PE also shows that it pertains to a case titled "The State Vs. Muhammad Yawn" which also create doubts regarding its genuineness.
15.For what has been discussed above and relying upon the judgments referred to by the learned counsel for the appellant, we are of the considered view that. the prosecution has failed to prove its case beyond reasonable doubt. So by giving benefit of doubt we accept this appeal and the appellant is acquitted from the charge. He shall be releaed forthwith, if not required in any other case.