1. ' The present revision under section 439, Cr.P.C. Is directed against the judgment, dated 27-7-1983 of Civil Judge and F.C.M. Tando Muhammad Khan whereby he convicted the applicant under section 9 of the Opium Act and sentenced him to suffer R.I. For three months and to pay a fine of Rs,300 in default to undergo further S.I. For one month more.
2. ' Being aggrieved the applicant filed an appeal which was also dismissed by the IIIrd Additional Sessions Judge, Hyderabad on 16-12-1984. The case of the prosecution is that on 17-7-1982 at 16-45 complainant Noor Hussain, A .S.I. Alongwith police party went for patrolling. When they reached at Chandni Chowk, Tando Muhammad Khan they received spy information that one person was selling opium near meat market, Tando Muhammad Khan. Police party proceeded towards that direction and reached there at 17-45, where they saw one person was sitting in front of meat market. On seeing police party he tried to run away but was encircled. He gave his name Leemo by caste Mirbahar. He was arrested and was searched. On his search one blue colour cotton bag was recovered from the fold of his trouser which contained six big and 27 small packets of opium, weighing 70 grams. He could not produce licence for the opium. Mashirnama was prepared by Noor Hussain, A.S.I. In presence of Mashirs Ghulam Qadir, P.C. And Lal Bux P.C. Applicant was taken to Police Station where A.S.I. Noor Hussain lodged the report under section 9 of the Opium Act on behalf of the State. The case proceeded and applicant was convicted as stated above.
3. ' Mr. Ghulam Hyde: Memon, Advocate for the applicant has not touched the merits of the case but he has argued that the material which was recovered from the possession of the applicant was not sent to any Expert, therefore, it could not be said if that was opium or any other thing. He has argued that both the Courts below have acted upon the certificate issued by the Excise Inspector to the effect that material allegedly recovered from the possession of the accused was certified to be "Charas", therefore, prosecution has failed to prove that opium was secured from the possession of the applicant.
4. ' Mr. Ghulam Hyder has relied on the cases reported in PLD 1981 Kar. 195, 1984 P Cr. L J 2342 and 1985 P Cr. L J 8 and stated that in all these cases the convictions were set aside by the High Courts because material was not sent to any Expert.
5. ' Mr. Riaz Ahmad, Advocate for the State has stated that prosecution has proved the case beyond reasonable doubt as all the witnesses have supported, therefore, conviction has rightly been based on the evidence.
6. ' Noor Hussain, A.S.I. Before the Civil Judge and F.C.M. Supported his complaint and stated that on the day of incident the opium was recovered and property was sent to the Excise Inspector for examination and certificate. On this point one Khaliqdad Excise Sub-Inspector was examined and he has stated that property was examined by him and it was found contraband opium. He has produced his certificate as Exh.7-A. The certificate reads as under:- "The case property of above crime has been verified and found to be contraband opium. After sealing the same returned to you through A.S.I. Noor Hussain."
7. ' In a case Suleman v. The State PLD 1981 Kar. 195, Mr. Justice Sajjad Ali Shah, has held that no reliance can be placed on the certificate of the Excise Officer in case of contrabands. The reference could be made to a case reported in 1976 P Cr. L J 643 in which it is clearly held that as per requirement of section 45 of Evidence Act the opium for such contraband material recovered must come from the Expert witness and in absence of such certificate conviction was set aside. In case of Shamman v. The State Federal Shariat Court 1985 P Cr. L J 8 it has been held that before securing conviction of accused, initial burden lies on prosecution to prove beyond any reasonable doubt and that report of Chemical Examiner best known scientific method to determine nature of such articles recovered and in case of Muhammad Ismail v. The State 1984 P Cr. L J 2342 Kar., it has been held that Expert is not brought on record about the material secured from the accused such fact is fatal to the prosecution and benefit could be given to accused.
8. It is an admitted position that material so secured was not sent to the Chemical Examiner. In my view no conviction could be based on the evidence and certificate of Assistant Sub-Inspector Excise Department who is not an Expert for determining the articles and his certificate has no evidentiary value. In these circumstances I accept the revision and set aside the conviction.
9. Applicant is in jail, he may be released forthwith if not required in any other case.
10. ' Revision accepted.