' SARDAR MUHAMMAD SARFRAZ DOGAR, J.---Asghar Abbas son of Muhammad Riaz, the appellant was embroiled in case FIR No,137/2007, dated 25.9.2007, under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station Shahnikdar, Sargodha, and was tried by the learned Additional Sessions Judge/Judge Special Court Control of Narcotic Substances Act, 1997, Sargodha. The learned trial Court, seized with the matter in terms of judgment dated 25.11.2010, convicted the appellant in the above referred Narcotic Substances Act, 1997 and sentenced him to undergo Rigours Imprisonment for two years with a direction to pay Rs,10,000/- as fine and in case of default thereof, further undergo Simple Imprisonment for six months. The benefit of Section 382- B, Cr.P.C. Was also bestowed upon him. The appellant had been a chooser to assail his conviction diarizing the instant appeal.
2. The prosecution story as alleged in the FIR (Exh.PA) lodged by Amjad Ali Inspector/SHO (PW-5) is that on 25.9.2009, at about 11:00 a.m, he along with other police officials including Khizar Hayat Goraya Inspector Excise was present at Northern-More Chak No,160 where he overpowered Asghar Abbas (complainant) in response to a spy information. On his personal search, charas weighing 1015 grams was recovered from a shopper carried by him in his right hand. Out of recovered charas, 10 grams was kept apart for chemical analysis. Besides charas, Rs,70/- were also recovered from right entire pocket of appellant.
3. The investigation was regulated by Amjad Ali Inspector (PW-5), who, after ending the necessary steps of investigation, prepared the report under Section 173, Cr.P.C. And forwarded it to the learned trial Court.
4. The learned trial Court formally charge sheeted the appellant on 04.7.2008, to which he pleaded not guilty and claimed trial. The prosecution aired as many as six witnesses. Muhammad Ashiq 528/C (PW-1) transmitted the second sample parcel as well Zile-e-Hasnain 1892/C (PW-2) the first sample in the office of Chemical Examiner. Amir Hamza 1393/HC (PW-3) sent the sample parcels to the office of Chemical Examiner, Muhammad Yousaf A.S.I. (PW-4) was scriber of FIR (Exh.PA). Amjad Ali Inspector (PW-5) was the complainant as well as Investigating Officer of instant case. Allah Dad 406/C (PW-6) was recovery witness of narcotic substance.
5. The prosecution, after giving up Abbas Ali (PW) being unnecessary, tendered the report of Chemical Examiner (Exh.PE) by shutting down prosecution case'.
6. Thereafter, the appellant was assessed under Section 342, Cr.P.C. Wherein he did not pick to appear as his own witness in terms of Section 340(2), Cr.P.C. And also did not produce any evidence in defence to disprove allegations leveled against him. In reply to a question that why this case against him and why the PWs have deposed against him, the appellant made the following:- - "Police falsely involved me in this case to show its pseudoperformance to the high ups. All the PWS are police officials and subordinates to the complainant/I.0. And falsely deposed against me."
7. After having been heard the arguments advanced by the learned counsel appearing on both sides, the learned trial court, while evaluating the evidence available on record, found the version of the prosecution correct beyond any shadow of doubt, which resulted into conviction of the appellant in the above stated terms.
8. Learned counsel for the appellant argued that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt; that no report of FSL is available on the record regarding the first sample obtained from the case property; that there is nothing on the record to establish that in whose presence the second sample was prepared on the basis of which the conviction was recorded against the appellant, which is based on wrong premises of law and facts and liable to be set aside.
9. On the other hand, learned Law Officer has opposed the contention raised on behalf of the appellant and stated that in view of the quantity of recovered narcotic substance, the learned trial Court has rightly convicted the appellant.
10. We have heard the arguments advanced by the learned counsel for the appellant as well as learned Law Officer by minutely perusing the record available on the file.
11. Learned counsel for the appellant laid much emphasis on the point that the appellant was convicted and sentenced on the basis of second report of Chemical Examiner. Perusal of the record transpires that on 25.9.2007, at the time of occurrence 1015 grams charas was recovered from the appellant, out of which 10 grams were kept separated for chemical analysis by sending to the office of Chemical Examiner on 17.10.2007 through Zil-e-Hasnain 1892/C for chemical analysis.
But, the office of Chemical Examiner vide letter dated 23.10.2007, reported that 'the result of the tests performed on the sample provided are not giving conclusive result and hence a second sample is required.' The office of Chemical Examiner further advised that the same could be sent within seven days of the receipt of the letter. Thereafter, on 08.12.2007, second sample parcel was prepared by obtaining permission from the learned Magistrate Section 30, Sargodha, and was sent to the office of Chemical Examiner on 09.12.2007 through Muhammad Ashiq 528/C, on the basis of which a report (Exh.PE) was obtained, which is in positive. Learned counsel for the appellant contended that there was nothing on record to show as to when and in whose presence the second parcel was prepared and thus no reliance could be placed on the report (Exh.PE). He also contended that if the instant report (Exp..PE) is taken out of consideration, there remains no evidence on the record to connect the appellant with the commission of this offence.
12. A glimpse of prosecution evidence reveals that the prosecution has not established that whether the second sample parcel was obtained from the material recovered in possession of the appellant. There is nothing on record to establish that as to how and in whose presence the second sample parcel was prepared. In this regard, the deposition of Amir Hamza 1393/MHC (PW-3) is relevant, who, during cross-examination, deposed that Zafar Iqbal S.I. prepared the sample parcel under the supervision of Judicial Magistrate. But neither said Zulfiqar Ali, S.I. Nor the learned Magistrate has been produced by the prosecution as witness to strengthen the prosecution case.
In the attending circumstances, the report of Chemical Examiner (Exh.PE) cannot be made a base for passing an order regarding appellant's conviction. Guidance is sought from Mst. Fatima v. The State (2002 PCr.LJ 32) wherein it has been held as under:-- "10. Since there is no evidence available on record as to who has prepared the second parcel, on the basis of which report Exh.P.H., dated 25.11.1999 has been secured, so, the report dated 25.11.1999 cannot be made a base for passing an order of conviction of the accused-appellant. If the report of the Chemical Examiner Exh.P.H., dated 25.11.1999 is taken out of consideration, there remains no evidence to connect the appellant with the commission of offence charged against her.
11. In view of the facts narrated above, we are convinced that the prosecution has failed to bring home guilt to the accused-appellant beyond reasonable doubt. Accordingly, we accept this appeal, set aside the impugned judgment and acquit the appellant. She shall be released forthwith if not required in any other criminal case."
13. Besides above, it is also pertinent to mention that Amjad Ali Inspector (PW-5) was the complainant as well as Investigating Officer of the instant case, who while appearing before the learned trial Court, deposed that at the time of occurrence heroin was recovered from the appellant, which was taken into possession vide recovery memo (Exh.PB). Whereas, perusal of the recovery memo (Exh.PB) reveals that the same pertains to the recovery of charas. It is also relevant to mention here that in the bottom of complaint (Exh.PA/1) the complainant recorded the date as 25.9.2009.
14. In the considered opinion of this Court, the aforesaid material illegalities are a glaring violation on the part of prosecution and contradictions considered cumulatively do lead to an irresistible inference that the prosecution has not been able to prove its case beyond any reasonable doubt through material and cogent evidence.
15. In view of the facts stated hereinabove, we are in agreement with learned counsel for the appellant that the prosecution has failed to bring home guilt to the appellant beyond reasonable doubt. Accordingly, we accept this appeal, and set aside the impugned judgment dated 25.11.2010 and acquit the appellant. The appellant is present before the Court on bail. His surety stands discharged.