This Criminal Appeal has been filed by appellant Ghulam Muhammad son of Haji Abdur Rahim. He has been convicted by judgment dated 8-11-1994 passed by the learned Additional Sessions Judge-II, Quetta, in Sessions Case No.69 of 1994 under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced to R.I. For two years and also awarded five stripes. The appellant has been given the benefit of section 382-B, Cr.P.C. Being aggrieved, the appellant has challenged the impugned judgment in this appeal. I have heard the arguments of Mr. M.S. Rakhshani, learned counsel for the appellant and Mr. Yakub Khan Eusufzai, learned Advocate-General, Baluchistan, who has represented the State. With the assistance of the learned counsel, I have gone through the record.
2. F.I.R. No.8 of 1992 was registered at Police Station Saddar, Quetta on 19-1-1992 at 7-45 a.m. On the Marasala (Exh.PA) of complainant P.W.1 Inspector Muhammad Nawaz S.H.O. Of the Police Station.
According to Exh.PA, complainant alongwith several officers of the police and other police personnel, under the supervision of a Magistrate and D.S.P. Saddar, Khan Abdul Salam Khan, arranged a joint raid in the area of Kalat Street and Peer Muhammad Road to apprehend the drug sellers. According to the complainant, on the same day at about 7-30 a.m. The house of the appellant was raided when the appellant tried to escape through the street but he was apprehended with the help of the staff and during his personal search by the complainant a plastic bag containing 29 grams of heroin in 60 Puries was recovered from the shirt pocket of the .Appellant. According to the complaint, the heroin was sealed on the spot and Exh.PA sent to the police station for registration of the case. The appellant was arrested and after completion of the investigation by P.W.4 S.I. Abdul Wahab (also a member of the raiding party), the appellant was sent up for trial. During his trial, the prosecution examined four witnesses. P.W. 1 is complainant Muhammad Nawaz, P.W.2 is S.I. Muhammad Tariq, a member of the raiding party and recovery witness; P.W.3 is Syed Abdullah chemical expert of Forensic Science Laboratory, Quetta, who had conducted the test on the recovered powder sent to him and P.W.4 is the Investigating Officer S.I.
Abdul Wahab. After the close of the prosecution case, statement of the appellant was recorded under section 340, Cr.P.C. He also gave statement on oath under section 340(2), Cr.P.C. In which he stated that on 19-1-1992 he had come out of his house for purchase of milk and on that day the entire area was surrounded by the police and the police present on Kalat Street asked him to accompany them to the police station. According to the appellant, no heroin was-recovered from him and that on the said day 7 other persons were also arrested by the police. He pleaded innocence stating that he had not committed any crime. In the cross-examination by the District Attorney, he denied any raid was conducted by the police in the presence of a Magistrate on his house and that he tried to escape and was apprehended. He denied that any heroin was recovered from his person. The appellant examined Muhammad Rafique as D.W.1, who stated in his examination-in-chief that he knew the appellant who was an employee of the B & R and that every morning the appellant used to come to purchase milk etc. From the witness but on a day during January the young son of the appellant came crying to him stating that the police had arrested his father and taken him away. Believing the prosecution case regarding the recovery including the evidence of the chemical examiner, the trial Court convicted the appellant and sentenced him as stated.
3. The main argument on behalf of the appellant was that, in the present case, there is violation of section 103, Cr.P.C. Inasmuch as no private witness was associated in the search. It was pointed out by Mr. M.S. Rakhshani, learned counsel for the appellant that, according to P.W.1, private persons were present at the spot but, no one was ready to become witness, but on the other hand P.W.2 stated that no private witness was present at the time of the search of the appellant and as such no private person could be associated as recovery witness and that no effort was made to get any private person from any house. It was also pointed out that in his evidence P.W.4 stated that in the search and during weightment of the heroin no private person was associated nor any such person called for evidence and he added that no private person was present at the spot. P.W.4 further stated that no effort was made to get any private witness from any house of the area. It was argued by Mr. M.S. Rakhshani that according to the prosecution version as also mentioned in the F.I.R., the raid in the area was conducted under the supervision of a Magistrate and D.S.P. Saddar, Quetta, but neither their names were mentioned in the challan as prosecution. Witnesses nor they were examined and no explanation has been given for this omission.
4. On the other hand, Mr. Yakub Khan Eusufzai, learned Advocate---General, argued that the evidence of the four prosecution witnesses has established the case of the prosecution beyond any shadow of doubt and it was not necessary to associate any private witness in the search and weightment of the recovered heroin.
5. In my view, no acceptable explanation is available on record for non-compliance of the mandatory provisions of section 103 read with section 165(4), Cr.P.C. P.W.2 and P.W.4 have stated that no one from the public was present at the time of arrest and as such no private witness could be associated in the search as recovery witness. It is not possible to believe the statements of P.W.2 and P.W.4 to the effect that no one was present at that time specially in view of the statement of P.W.1 who admitted that persons from the public were present. According to P.W.1, though persons were present but no one was ready to become a witness. This general statement, without any detail about the persons who had been asked to become witnesses, is not sufficient to discharge the burden of the prosecution to give an explanation for non-compliance of the mandatory provisions of section 103 read with section 165(4), Cr.P.C.
6. Additionally, it has been observed that there is another very material lacuna in the prosecution case and that is that from the evidence of the chemical examiner it has not been established beyond reasonable doubt that the recovered powder sent for chemical examination was heroin. In his cross---examination, P.W.3 Syed Abdullah Inspector and chemical expert in the Forensic Science Laboratory, Quetta has stated as follows:--- From the above answers given by the chemical expert in his cross-examination, it follows that in the powder sent to the laboratory for chemical examination, apart from heroin, there were other ingredients but the expert could not give any report regarding the other ingredients. His explanation that information about ingredients of the powder are not disclosed and the same is kept secret cannot be accepted. As a chemical expert, who had conducted the analysis through chemical tests, he was required to give precise answer about the ingredients of the sample sent to him for examination. His failure to give any answer in this regard and the strange explanation that information about the ingredient is kept secret creates serious doubt about the opinion. As his opinion (Exh.PD) cannot be accepted, in view of the evidence given by the chemical expert referred to earlier, it has not been established beyond reasonable doubt that the powder recovered from the appellant was heroin; the prosecution -has not established its case against the appellant.
7. As a result, Criminal Appeal No.73/Q of 1994 is allowed, the judgment, dated 8-11-1994 passed by the learned Additional Sessions Judge-II, Quetta, is set aside and the appellant acquitted of the charge. The appellant is in custody in this case. It is directed that he be released forthwith, if not required in any other case.