' Mr. Ziauddin Siddique learned Additional Sessions Judge, Peshawar vide his judgment, dated 7-9- 1995 convicted Muhammad Hanif son of Muhammad Saeed resident of Mirpur Abbottabad under Article 4 of the Prohibition Order on account of recovery of 30 grams of contraband heroin and sentenced him to imprisonment for 13 months (already undergone) and a fine of Rs,1,000 in default of payment whereof he was to further undergo simple imprisonment for three months.
2. Although the imprisonment has been converted under section 382-B; Cr.P.C. To the one already undergone (13 months) yet feeling aggrieved of the very conviction,' Muhammad Hanif has come up in appeal on the ground that at the first place the recovery is not proved at all and at the second place nothing on record has been proved to be contraband heroin: It was added that while conducting search of the appellant the Investigating Officer somehow or the other misbehaved whereupon the appellant altercated with him. Resultantly he was involved in the instant false case through F.I.R. No,384, dated 2-8-1994 of Police Station, Hayatabad.
3. The story of the prosecution is that Abdul. Qadeem A.S.I. Police Station, Hyderabad along with Khan Zali, a constable was on mobile round of the area in official pick-up driven by Fatale Maula.
He was at Hayatabad Check-post when the appellant came from and was suspected by the A.S.I.
On conducting his personal search a polythene packet containing heroin weighing 30 grams was recovered from him and hence he was arrested under Article 3/4 of The Prohibition Order.
4. The prosecution has examined Abdul Qadeem complainant-Investigating Officer and Fazle Maula driver alone while P.W. Khan Zali was abandoned. P.W. Fazle Maula has clearly stated that after the search of the accused, Abdul Qadeem A.S.I. Came towards him and Khan Zali and told them that he had recovered the said material from the possession of the accused. This shows that Fazle Maula was not the immediate witness to the occurrence. This is proved from the statement of Abdul Qadeem, A.S.I. As well who says that Fazle Maula was on other side of the road while Khan Zali was close to him during physical recovery, meaning thereby, that the one (Khan Zali) who had witnessed the immediate recovery has been abandoned and the one (Fazle Maula) who was away and to whom the Investigating Officer had informed about the recovery, was examined in the case.
5. The Investigating Officer states in clear terms in his statement and also through his recovery memo. (Exh.P.C.) that on the spot he had separated the sample from the main packet and both were separately made and sealed into parcels. This factum is not corroborated by P.W. Fazle Maula. The latter states that the scales to weigh the material was procured from the nearby shopkeeper while Abdul Qadeem, A.S.I. Says that he already possessed the scales with him in his briefcase. Such material contradiction and shortcoming aforesaid goes a long way to suggest that the recovery as such has not been proved in the instant case.
6. As stated earlier, P.W. Fazle Maula has not uttered a single word regarding separation of a sample from the main packet and regarding seal thereof. The separation of sample is disproved and hence no one knows as to what had reached before the Chemical Examiner for analysis. It is not known as to which material is opined by the Examiner to be heroin regardless of his reference to the F.I.R. Concerned because when not separated on the spot and sealed into a parcel, the Investigating Officer can send anything subsequently.
7. It is not proved at all that the Chemical Examiner in the instant case is a duly appointed and notified Chemical Examiner of the Government of N.-W.F.P. When once it is not proved and when the same cannot be taken for granted, it was incumbent upon the prosecution to have examined the Chemical Examiner in Court and not to have assumed that he was exempted under section 510, Cr.P.C. Either it should be proved that the Chemical Examiner was duly notified by the Provincial Government or he be examined in Court to prove the report Exh.P.W.3/2 without gaining any advantage under section 510, Cr.P.C. Neither the Notification is filed nor the Chemical Examiner is examined in the instant case and hence the report Exh.P.W.3/2 is not proved at all.
8. The material allegedly recovered from the appellant on 2-8-1994 was allegedly received by the Chemical Examiner on 25-8-1994. Such delay of 23 days is not explained by the prosecution and hence everything concerning this case is either unproved or seriously doubtful. The recovery being not proved, the witnesses being materially discrepant, one cannot rule out the strong possibility that the case was a result of altercation between the accused and the A.S.I. The separation of sample being not proved, the sending thereof to the Chemical Examiner with a delay of 23 days and the Chemical Examiner having not been examined in Court, are a few strong circumstances under which the prosecution has failed to prove that the material recovered by it was in fact heroin.
9. Recovery memo was prepared allegedly on the spot when-no F.I.R. Had yet been registered at Police Station, Hayatabad but the memo. Still bears the number of F.I.R. Which shows that all the formalities had been completed at the police station. Even the place of recovery is not proved by the prosecution and the possibility cannot be ruled out that as fake proceedings had been taken by the Investigating Officer, therefore, he avoided and failed to prepare a site plan. The case is full of doubts right from beginning up to end which the learned trial Court had failed to appreciate.
10. The appeal is accepted, impugned conviction and sentence recorded by the learned Additional Sessions Judge, Peshawar on 7-9-1995 is hereby set aside and the appellant Muhammad Hanif is acquitted of the charge under section 4 of the Prohibition Order.