ABDUR REHMAN KHAN KAIF, J: - Muhammad Rafique son of Muhammad Bar, resident of Chakisar in Swat and Jameel Hussain son of Muhammad Yousaf resident of Thana Malakand Agency, were tried by the learned Sessions Judge, Swat at Saidu Sharif, in a case registered vide F.I.R. No. 268 dated 1-10-1986 under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the said Order) on the allegations that they were found carrying 1200 grams of opium in a vehicle No. SW-1778 on the mentioned date.
Vide his judgment dated 4-1-1989 the learned trial Judge found both the accused guilty under Article 3 of the said Order and on conviction thereunder sentenced each of them to two years' R.I., whipping numbering ten stripes and to a fine of rupees one thousand. In default of payment of fine, each of the accused was to suffer further S.I. For two months.
2. Being aggrieved by the mentioned judgment of the learned trial Court, the two convicts, namely, Muhammad Rafique and Muhammad Jameel, have preferred separate appeals against their conviction and sentences wherein they have challenged the impugned judgment on the grounds mentioned therein. We propose to dispose of Criminal Appeal No. 8/I of 1989 (Muhammad Rafique son of Muhammad Bar v. The State) and Criminal Appeal No. 12/I of 1989 (Jameel Hussain son of Muhammad Yousuf v. The State) by this judgment.
3. The facts of the case briefly stated in the F.I.R. Lodged by Sirajul Hassan, S.H.O. P.S. Ghalibgay, are that he alongwith Shobar Khan, A.S.I. Muhammad Jamil, A.S.I. And other police officials were present on duty at Depot. Guard Landaki, when a Datsun bearing No. 1778/SW arrived from Batkhela/Malakand side which was intercepted and stopped for checking. Jameel Hussain, appellant was found sitting on the driver's seat, driving the vehicle while on the front seat alongwith him the other appellant, Muhammad Rafique, was found sitting. As a result of the search of the vehicle, opium weighing 1,200 grams was recovered from beneath the driver's seat of the said vehicle which according to the complainant, was claimed by Muhammad Rafique, appellant. Both the accused were arrested and the opium was taken into possession vide recovery memo. Exh .P.R.) in the presence of witnesses. Four grams of the opium was separated or the purposes of analysis and report by the Chemical examiner. A `Murasila' (Exh.PA./1) was drafted which was sent to the police station where a case was registered vide F.I.R. (Exh.P.A.). The confessional statements of both the accused were got recorded and after the usual investigation, a complete challan was submitted for trial against the accused.
4. At the trial the prosecution examined five witnesses in support of its version.
Shobar Khan, A.S.I. (P.W.1) has supported the version as stated in the F.I.R. And has stated that on the day of occurrence in his presence 1,200 grams of opium was recovered from the vehicle bearing 1778/SW which was taken into possession vide recovery memo. (Exh.P.R) hearing his signature. To a-similar effect is the-statement of Muhammad Jamil, A.S.I. (P.W.2). According to him, in his presence 1200 grams of opium, recovered from the mentioned vehicle was taken into possession vide recovery memo. (Exh.P.R.) bearing his signature. Zamin Gul, F.C. (P.W.3) had also shown his presence at the spot. According to him he picked up the contraband opium from the vehicle and handed over the same to the Investigating Officer. He also took the Murasila for the registration of the case to the police station. Sirajul Hassan Khan, Inspector (P.W.4) has reiterated almost a similar version as given in the F.I.R. He arrested the accused, took the vehicle and the contraband material in possession, recorded the statements of the witnesses, got the confessional statements of the accused recorded and after the usual investigation, submitted a complete challan for trial against the accused. Munir Ahmad Khan, Magistrate 1st Class (P.W.5) has recorded the confessional statements of both the appellants. According to him, he observed all the legal formalities while recording such confessional statements.
5. When examined under section 342, Cr.P.C., both the appellants denied having made any confessional statement and have further denied the allegations about the recovery of the opium from their possession. Muhammad Rafique, appellant, has further explained the position by stating that he was sitting in a wagon alongwith other passengers and he was falsely involved in the case as nothing has been recovered from his possession. Both the accused, however, declined to make statements on oath as required under section 340(2), Cr.P.C., and have further failed to produce any evidence in their defence.
6. We have heard the learned counsel for the parties and have gone through the material available on the record with their assistance.
7. Learned counsel for the appellant contended that the statements of the accused recorded by the Magistrate were wrongly understood to be confessional statements that the contraband material which was allegedly recovered from beneath the seat of the driver, cannot be connected with the accused, that the prosecution evidence was materially discrepant and the learned trial Court had no justification to rely on such evidence, that the chain of evidence is missing from the time of the recovery to that of `Malkhana' and subsequently to that of Chemical Examiner, which has made the prosecution case doubtful and the conviction of the appellant was not sustainable under the law.
8. On going through the record, we feel that so far the nature of the retracted confessional statements are concerned, they are not of any judicial help to the prosecution. In the instant case Zamin Gul, F.C. (P.W.3) has clearly stated that he picked up the contraband opium from the Datsun and handed over the same to the Investigation Officer. This statement has been clearly contradicted by A Sirajul Hassan Khan, Inspector (P.W.4) by stating that he searched the Datsun vehicle and recovered himself the opium from the secret cavities of the vehicle in the presence of Shobar Khan and Muhammad Jamil, A.S.Is. He has nowhere mentioned the presence of Zamin Gul, F.C. (P.W.3) at the spot. Shobar Khan, A.S.I. (P.W.1) has stated during his cross-examination that the opium recovered was in the shape of one solid piece and the same was wrapped in a cloth while Zamin Gul, F.C. (P.W3) has stated that the opium was lying in the plastic bag.
Similarly, Muhammad Jamil, A.S.I. (P.W.2) when asked about the opium, deposed that he was unable to recollect if the opium, was in the form of one solid piece or so many pieces.
The recovery, according to the F.I.R. Was made from under the driver's seat. The possibility of the presence of other passengers beside Muhammad Rafique cannot be ruled out in view of the answers given by some of the witnesses to certain suggestions put to them during their cross- examination. According to the F.I.R. And Sirajul Hasan Khan, Inspector (P.W.4), Muhammad Rafique, appellant had claimed opium showing that the other appellant, namely, Jamil Hussain, shown as driver of the vehicle was not in conscious possession of the same, but Muhammad Rafique, appellant, according to the evidence was sitting on a different seat and the recovery was not made from his possession or from under his seat.
9. In the instant case the report of the Chemical Examiner was placed on the record, but it was neither properly tendered in evidence nor it has been connected with the material recovered. None of the witnesses appearing in this case has said a single word as to its custody or further despatch to the Office of the Chemical Examiner for the purposes of analysis and report. No witness has been produced to show that the material recovered and the sample taken were kept in safe custody and the sample was subsequently delivered intact for analysis and report to the Chemical Examiner. The entire chain being missing, no reliance can be placed on the report. It cannot, therefore, be said that what was recovered was an intoxicant covered by the relevant provisions of the said Order. From the statement of Sirajul Hassan Khan, Inspector (P.W.4) it is further evident that he did not even care to seal the remaining material allegedly recovered which remained unsealed making the whole story highly doubtful. No value can be attached to the Chemical Examiner's report which is now placed on the record.' All the above facts showed complete negligence of the prosecution in conducting this case. In the stated circumstances, we would have sent this case back for retrial but the inordinate delay in the trial and the indifferent attitude of the prosecution would show that no useful purpose would be served by remanding the case.
Consequently, we would allow this appeal, set aside the conviction and sentences of Muhammad Rafiq son of Muhammad Bar and Jameel Hussain son of Muhammad Yousuf, appellants, and acquit them of the charge. The appellants are on bail. Their bail bonds shall stand discharged.
N.H.Q./472/FSC