1. The applicant Shahzado son of Muhammad Abid was tried by the learned Sub Divisional Magistrate, Kamber who by his judgment, dated 29-7-1986 convicted the applicant under section 4 of the Prohibition (E. Of Hadd), Order, 1979 and sentenced him to R.I. For 1 year and a fine of Rs.1000 in default of payment of fine to further undergo R.I. For 1 month more.
2. Against his conviction and sentence, the applicant preferred an appeal before the learned Sessions Judge, Larkana, who by his judgment, dated 18-1-1987 dismissed the appeal and maintained the conviction and sentence of the applicant.
3. The applicant has now challenged his conviction and sentence through this revision application.
4. Facts of the case are that on 12-12-1982 at 6-05 p.m. S.H.O. Muhammad Yousif of Police Station Kamber lodged report under section 43(3) Abkari Act, under section 4 of the Prohibition Order 1979 and section 9 of the opium Act against the applicant. He states that he had received spy information on the basis of which, he took his staff and left the police station vide entry No.20, dated 12-12-1982 at 5-05 p.m. On the way he also took two private Mashirs namely Abdul Sattar Gopang and Ahmed Soomro. He went to different places and when he reached near the Otak of Abid Buriro, he saw one person standing over there having a basket in his hand. The spy pointed that some person with the basket. They caught that person. His personal search was taken which yeilded recovery of Rs.35. The basket was searched, it contained a wrapped parcel from which charas, opium and small bundles of hamp were recovered. The weight of charas was 1100 grams, the weight of opium was 150 grams and weight of hamp was 2200 grams. All the articles were seized and sealed at the spot under a Mashirnama, the said person namely applicant Shahzado was arrested at the spot. The case property and. The accused were brought at the police station, where SHO Muhammad Yousuf lodged the report.
5. The investigation was also conducted by the said SHO. He recorded the statements of the witnesses and also sent the case property for test and examination to the Excise Inspector Kamber and after completion of the investigation, he challaned the applicant in the Court of S.D.M. Kamber.
6. At the trial, the prosecution examined complainant S.H.O. Muhammad Yousuf Exh.3, Shawal Khan, Exh.4, Abdul Sattar Exh.5, Akhtiar Ali Exh.7. Rest of the witnesses were given up by the prosecution, side was also closed vide Exh.8.
7. At the conclusion of the prosecution side, the statement of the applicant was recorded under section 342, Cr.P.C. Vide Exh.9. The applicant denied the allegations and claimed that he has been false implicated in this case at the instance of Abdul Khaliq Chandio on account of differences in Local Council election. The applicant has examined one Abdul Sattar as his defence witness, his statement is Exh.10. Thereafter, the applicant was convicted and sentenced by the trial Court, he preferred appeal which was also dismissed as mentioned hereinabove.
8. I have heard Mr: Syed Mahmood Shah Advocate for the applicant and Mr. Mushtaque Ahmed Ameer Mahar, Advocate for A.A.-G. For the State. The latter has opposed this application.
9. I have applied my mind to the circumstances of the case and I have also gone through the evidence on record and so also the judgments of the two Courts below. I may observe that it is not necessary to go into the evidence or the merits of the case as there is a legal lacuna in this case which goes to the very root of the matter as I shall presently explain. Now the articles which were recovered from the accused are "alleged" to be intoxicants. At the time of recovery and also during investigation there" is only a "supposition" or a "presumption" that the articles secured from the accused are intoxicants. Again, the Courts of Law will never accept the evidence of an investigating or seizing officer to the effect that the articles recovered froth the accused are intoxicants, because their evidence is again based on "supposition" or "Presumption" as they arc not experts. It is for this reason, that the articles are referred to an expert who scientifically examines and "certifies" the same to be intoxicants. Such a "certificate" issued by an expert becomes admissible in evidence by virtue of section 510, Cr.P.C. During the trial when such a "certificate" is exhibited and placed on record, it becomes legal evidence and proof of the fact, that the articles so recovered from the possession of the accused arc intoxicants.
10. From the above reasoning, it will therefore appear that in the absence of an experts opinion if the accused is tried in cases involving recovery of intoxicants, there will remain a major lacuna in the prosecution case, as there will be no proof that the article recovered from the accused is intoxicant and not some thing else. It is to be noted that the police, the prosecutor, the Defence Counsel and even the Judges are not experts and cannot determine that the articles are "intoxicants". Therefore, in cases involving intoxicants if there is no expert opinion, then, a lurking doubt is left in the mind of the Court, and the benefit of which, will certainly go to the advantage of the accused.
11. In this case, I have found the same lacuna in the prosecution case. The Investigating Officer did not send the articles to the chemical examiner, but he sent the same to an Excise Sub-Inspector who- has issued a simple certificate in his capacity as an Excise Sub-Inspector which is placed on record as Exh.7/A.
12. By any stretch of imagination, this Exh.7/A cannot be called an opinion of an expert. No reasons arc given as to why the articles were not sent to the chemical examiner.
13. Both the Courts below have overlooked this point and also brushed aside the evidence in this regard. In the cross-examination of the seizing officer P.W.1 Muhammad Yousuf, the Defence Counsel had put a specific question in this regard and the witness answered as under:- "I did not send the recovered opium, Charas and Bhang to chemical analyser or expert but to Excise Sub-Inspector Kamber."
14. It is not understandable what prompted the I.O. To send the said articles to an Excise Sub- Inspector.
15. The said Excise Sub-Inspector namely P.W. 4 Akhtar Ali has also been examined in this case and in his cross-examination, this is what he has to say:-- "I had never obtained any training in chemical laboratorv but I received training in my department.
16. 1 had not checked the samples of contraband articles through any laboratory process. But I certified them on my personal experience."
17. From the above evidence it will appear that the certificate issued by P.W.4 Akhtar Ali was not based on any chemical formulation or process, but in fact it is based on his personal experience.
18. Moreover on his own admission he is not an "Expert" within the meaning of section 45 of the Evidence Act, as under this section only a "specially skilled" person can be termed as an expert. In this view of the matter, P.W. 4 Akhtar Ali is not a "specially skilled" person and on his own showing he has never had any laboratory training. Accordingly the said certificate Exh.7/A cannot be treated as a chemical report. If this report is excluded then, there is no evidence that articles so recovered from the accused are intoxicants. This obviously goes to the very root of the matter and creates a doubt, which has to be resolved in favour of the accused.
19. It is really surprising, that both the Courts below have over looked this most important legal circumstance of the case and have gone on to convict the accused by placing reliance on this so called certificate Exh.7/A.
20. In the result, 1 am of the firm opinion that the conviction and sentences of the applicant being illegal, arc hereby set aside. However retrial is not ordered as the case pertains to the year 1982 and the applicant has been facing the rigours of the proceedings for the last about 10 years.
21. Order accordingly.
22. N.H.Q./S-900/K