Muhammad Kaleem son of Mendhi Hasan Rajput has been convicted by the learned Additional Sessions Judge, Rajanpur, in Hudood Case No. 22/A of 1993 under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced to R.I. For four years, ten stripes and a fine of Rs.
4,000 and in default in the payment of fine to further undergo R.I. For four months. I have heard Mr. Malik Muhammad Akram, learned counsel for the appellant, and Mr. Muhammad Anwar Dholan, learned counsel for the State. With the assistance of the learned counsel, I have gone through the record and the impugned judgment, which includes the evidence of five prosecution witnesses, statement of the accused under section 342, Cr.P.C. And one defence witness Dildar Hussain and three exhibits.
2. This appeal is barred by 43 days. An application has been filed for condonation of delay being Criminal Miscellaneous Application No. 337/L of 1994. According to the said application the appellant is in custody since the announcement of the judgment and except his old and sick mother there is no other person who could pursue this further and she resides at Mithankot and, after receiving power of attorney from Jail and arranging for funds, she reached Lahore and made arrangements for filing of the appeal, which has resulted in delay, which is neither intentional nor wilful, but beyond the control of the appellant. No objection was raised by the learned counsel for the State in the circumstances, Criminal Miscellaneous No. 337/L of 1994 is granted and the delay in filing the appeal is condoned.
3. According to the F.I.R., one Muhammad Akram, who was in police custody with Kot Mithan Police, disclosed on 9-10-1992 that he had purchased the heroin recovered from his possession from appellant Muhammad Kaleem. In the circumstances, after obtaining a search warrant, the house of the appellant was raided and, on his personal search, 10 puris containing 2-1/2 grams of heroin powder were recovered from right side pocket of his shirt, while 247-1/2 grams of other heroin was recovered from left side pocket of his shirt. According to the FIR, out of the ten puris, two puris were taken out and out of the other recovery, five grams were taken out and sealed into separate parcel by way of sample while the rest was sealed in another parcel and taken into custody. The appellant was taken into custody and after investigation sent up for trial. According to learned counsel for the appellant, there is a fatal lacuna in the case of the prosecution inasmuch as it has not been established that the recovered powder was an intoxicant i.e. Heroin. Admittedly, there is no Chemical Examiner's Report on record. The prosecution did not introduce Chemical Examiner's Report in evidence, as it was not available. The trialCourt overcame this loophole in the prosecution case by observing that the police officer conducting, the raid was a person with sufficiently long experience to verify the article as heroin and, secondly, that the accused himself did not deny the fact that the article recovered from his possession was heroin and that in his statement under section 342, Cr.P.C. He Had stated that the police had planted the heroin against him and stated the article recovered was heroin. According to the trial Court, it was an admitted position that the article recovered was in fact heroin. The trial Court erred in taking the aforesaid view. The Inspector of police has been elevated by the trial Court to the status of a Chemical Expert by one stroke of the pen when the trial Court states that the police officer had sufficiently long experience to verify the article as heroin. If this reasoning is accepted, it would obviate the necessity of establishing the nature of the recovered powder as heroin (an intoxicant) through the Chemical Examiner's Report.
The police officials are not experts in this field and cannot just by looking or observing at some powder give a declaration that the said I powder is heroin, an intoxicant. In this connection, reference may be made to two reported judgments relied upon by the learned counsel for the appellant. First is the case of Shahzado v. The State reported in 1992 P Cr. L J 1985, a decision of a learned Single Judge of the Sindh High Court, in which it was observed that, in cases involving intoxicants, if there is no expert opinion available, a lurking doubt is left in the mind of the Court, the benefit of which will certainly go to the accused and it was further observed that neither the police nor even the Court are experts and cannot determine that the recovered articles are intoxicants.
The other case is Iftikhar v. The State decision of a Division Bench of the. Federal Shariat Court reported in 1993 P Cr. L J 1847. In this case also this Court allowed the appeal against conviction as there was no report of the Chemical Examiner with regard to the heroin alleged to have been recovered alongwith Charas from the house of the appellant. The two judgments support the case of the appellant that production in evidence of the Chemical Examiner's Report certifying that the sample of the recovered contraband is an intoxicant is mandatory.
4. As regards the other reasons given that the accused had not denied that the article recovered from his possession was heroin is not confirmed from reading the entire statement of the appellant. He had denied that any heroin had been recovered from him. Although, in answer to a question, he had stated that the police had planted the heroin and registered a false and fabricated case, but by this it would not mean that it was an admitted position that the recovered powder was heroin. The appellant had denied any recovery and what he meant was that the case property had been planted on him. The recovered property has not been established to be heroin.
5. Then there is a material discrepancy in the prosecution evidence about the samples taken from the recovered powder. According to F.I.R., out of 10 Puris, 2 Puris were taken and from 247-1/2 grams, 5 grams were separated and sealed in separate parcel, but out of the two recovery witnesses, P. W Muhammad Azam says that contents of 8 puris were kept as sample together with 5 grams from the other lot. This discrepancy assumes importance in the E absence of Chemical Examiner's Report, for the production of which report prosecution sought adjournments for several months.
6. Agreeing with the contention of the learned counsel for the appellant 'that the prosecution had failed to establish that the recovered article was heroin and there being a material contradiction about the making of samples, this appeal is allowed, the impugned judgment dated 4-8-1994 of the Additional Sessions Judge, Rajanpur, is set aside and it is directed that appellant Muhammad Kaleem son of Mehdi Hasan Rajput be released forthwith if not required in any other case.