' SYED MUHAMMAD KAZIM RAZA SHAMSI, J.---This criminal appeal is directed against judgment dated 26-10-2009 passed by the learned Additional Sessions Judge, Lahore, whereby on conclusion of the trial, the appellant, who is a foreign national, was convicted under section 9(c) of Control of Narcotics Substances Act, 1997 and awarded sentence of imprisonment for life with fine of Rs,500,000, or in default thereof to further undergo simple imprisonment of two years. Benefit of section 382-B, Cr.P.C. Was, however, extended to the convict. The trial was conducted in case arising out of F.I.R. No,17, dated 2-2-2003, registered, under sections 6, 7, 8, 9(c), 14, 15 and 16 of Control of Narcotic Substances Act, 1997 with Police Station Sarwar Road, Lahore Cantt.
2. The allegation against the appellant is that he on 2-2-2003 at about 5-00 a.m on checking in departure lounge of Allama Iqbal International Airport, Lahore was found carrying two suit-cases, of blue and green colours. On opening of blue suitcase, eight bottles of different size apparently containing shampoo were recovered and on suspicion, the liquid in the bottles was tested with test-tube and it was found that the substance in bottles contained heroin. The stuff was weighed and 16-Kgs of heroin was recovered therefrom. Formal F.I.R. Was lodged against the appellant and after conclusion of investigation, the challan was sent to the Court for trial.
3. The appellant did not plead guilty to the charges and claimed trial. The prosecution examined five witnesses in all. After conclusion of the prosecution evidence, the appellant set up his defence in his statement recorded under section 342, Cr.P.C. By asserting that nothing was recovered from his possession, rather, he was arrested by Mazharul-Haq, Custom; Inspector on 1st February, 2003 along with another foreigner from Model Town Flats, Lahore and in order to usurp his luggage consisting of T.V, Refrigerator, DVD Player, Movie Camera and 2000 US Dollars, the complainant Mazhar ul Haq falsely implicated him in the instant case. The appellant neither produced any evidence in his defence nor appeared as his own witness as required by section 340(2), Cr.P.C. The learned trial Court at the conclusion of the trial held the appellant guilty of having possession of 16- Kgs heroin and awarded him sentence in the above terms.
4. Learned counsel for the appellant argued that the complainant of the case had allegedly prepared 16 samples but sent only 8 samples to the Chemical Examiner for examination; that the samples were deposited in the laboratory with the delay of five days for which no explanation has been given by the complainant in his statement; that the statements of the witnesses under section 161, Cr.P.C. Were also recorded after seven days of the occurrence; that the report of the Chemical Examiner is a maneouvered and fabricated document, and is not in the form as prescribed by the Control of Narcotic Substances/Government Analysts Rules, 2001; that no mode of separation of the "heroin" from the liquid shampoo has been brought on the file, thus there is no evidence on the record showing that the shampoo contained any narcotic substance; that during the trial, the samples were checked in the Court on 10-8-2006 and the total gross weight of the material was 7310 grams, much less than the weight of heroin planted upon the appellant; that the samples were not sent in the safe custody for delivery to the Chemical Examiner; that there are material contradictions in the statements of the prosecution witnesses, which have been ignored by the learned trial Court while convicting the appellant.
5. On the other hand, learned DPG agued that the appellant was arrested from the Airport premises as is apparent from his air ticket and the passport, thus the plea that he was arrested from Model Town Flats, Lahore is negated from this fact. He further submitted that there could not be any mala fide on the part of the complainant as the appellant is a foreign national against whom no could be developed by the locals; that huge quantity of narcotic substance was recovered from the possession of the appellant and the report of the Chemical Examiner is also positive, thus he prayed for dismissal of the appeal.
6. We have considered the submissions made by the learned counsel for the parties and perused the record.
7. The first question for determination is that how the samples of narcotic/heroin from the bottles of shampoo were extracted by the complainant. Learned trial Court on 10-8-2006 had checked the samples in the Court which were placed in the cotton bag. Each sample was de-sealed which was containing of 100 ml liquid. The bottles were exhibited as Exh.P3/A to Exh.P3/H. On opening of these bottles, the Court found a hard substance; in each sample, whereafter the. Court again sealed the battles. The Court noted the gross weight of each sample. The total gross weight of Exh.P3/G was 3440 grams while Exh.P3/H was having weight of 3870 grams. The court noted the total weight of these samples as 7310 grams. As per statement of the complainant, he had prepared 16 samples containing 5 grams of heroin each meaning thereby he had extracted 80 grams substance from the bottles for sample purpose and if this quantity is added in the gross weight of recovered narcotic substance from the bottles that come to 7390 grams, thus in any case, 16-Kgs. Of heroin was not available in all eight bottles. If this contention of the complainant is admitted as correct that 16-Kgs. Of heroin was recovered from 8 bottles, then necessarily each bottle was containing about 2-Kgs. Of heroin, which is quite impossible in view of above circumstances as the capacity of one bottle was only 100 ml. In this manner, it appears that 16 Kgs. Heroin was planted upon the appellant for the reasons best known to the complainant.
8. We have also examined the report of the Chemical Examiner Exh.P4/1, which is in the form of a letter issued by the Seizing Officer Ch. Mazhar-ul-Haq Inspector Customs. On the back of this letter, the Chemical Examiner has given his report. This letter shows that only 5 grams of the substance was sent to the Chemical Examiner as the same weight is recorded in Column No,5 of the letter. It further shows that the letter sent was a communication to the Chemical Examiner without containing any request for the determination of the nature and description of substance. This letter does not reflect that all the eight samples were properly sent to the office of the Chemical Examiner for analysis. The report made by the Chemical Examiner on the said letter thus has no legal value. There is a set format of giving the report by a Chemical Examiner, which is not available on this file as such, document Exh.P.4/1 has no evidentiary value. In the circumstances, it is doubtful that the substance sent to the Chemical Examiner was narcotic substance. Similarly, neither the complainant nor the Chemical Examiner has placed on record any material showing that how the heroin was separated from the shampoo, which was in liquid form in the bottles. All these deficiencies/lacunas have not been properly considered/evaluated by the learned trial Court while convicting the appellant, although same make the prosecution case highly doubtful. In this situation, we are not inclined to subscribe to the view taken by the learned trial Court while convicting the appellant, hence, it is established that the prosecution has miserably failed to prove the charge against the appellant beyond any shadow of doubt.
9. For the forgoing reasons, the appeal is accepted and the appellant/Okeke Erec Ifeanyi is acquitted of the charge. He shall be released forthwith from jail, if not required in any other criminal case. He along with his documents shall be handed over to the concerned Embassy. The case property shall be destroyed.