1. This is a criminal revision by applicant Patasho Khashkheli who was convicted by the Court of Civil Judge and F.C.M., Sakrand on the allegation of being found in possession of 54 litres of Alcohol which was recovered from him when he was alighting from a bus in, Sakrand town. The learned Civil Judge and F.C.M. Sakrand had convicted the applicant to undergo simple imprisonment for one year in addition to payment of Rs.2,000. In default of payment of fine imprisonment for two months was ordered. Against this conviction, the applicant had filed an appeal before Sessions Judge, Nawabshah and in this appeal the conviction awarded to the applicant by the trial Court was maintained. This criminal revision challenging these two judgments was filed in this Court and it was admitted on 14-9-1992 for regular hearing. The points raised in this revision at the time of admission, which were found worth consideration were that provisions of section 103, Cr.P.C. Have been violated in this case as the alleged recovery was from a thickly populated town, near a Bus Stand during day time but the police made no efforts to secure the presence of an independent Mashir. The second point for consideration which was raised at the time of admission was that the alleged Alcohol was recovered on 29-6-1989 and a sample thereof was despatched for the opinion of the Chemical Examiner on 5-7-1989 while the same was received in the office of Chemical Examiner's Laboratory at Sukkur on 19-8-1991 i.e. After about two years, two months and two days.
2. This inordinate delay in despatching the sample for the report of Chemical Examiner was fatal to the prosecution as was argued at the time of admission. The other points raised by the learned counsel for the appellant were on factual side about believing or disbelieving the evidence of the witnesses. Since this is a revision and there are concurrent findings of the two Courts below on factual sides, these factual findings need not to be opened again at this stage. However, the point of sending 'the sample of the liquor for examination to the Chemical Examiner has attracted my attention. It has been held in several authorities that the delay in sending the material for the examination of the Chemical Examiner if not explained, would be fatal to the prosecution case as the opinion of the expert loses its value. In this case the applicant has been denying from the very beginning that he was not found in possession of any intoxicant liquor and that the bottles of the alleged liquor have been foisted on him. In the case of Mst. Fahmida Begum and another v. The State decided by Federal Shariat Court (1986 PCr.LJ 1728) it was found that the parcels delivered in the office of Chemical Examiner were uncounted for, for a period of three months and therefore, the report of the Chemical Examiner was held doubtful. In the case of Wazir v. The State PLD 1996 Kar.
3. 240 the unexplained delay in sending the parcel to the Chemical Examiner after lapse of four months, was found fatal to the prosecution case. On the same analogy yet in another case of Yousuf v. The State PLD 1988 Kar. 521 inordinate delay in sending the parcels for the opinion of Ballistic Expert were found fatal to the prosecution. In these circumstances the delay of more than two years in sending the samples to the Chemical Examiner has not been explained and therefore, I find report of the Chemical Examiner in this case to be doubtful.
4. If the report of the Chemical Examiner has been found doubtful in this case, the benefit of doubt can be conveniently given to the applicant/accused. The trial Court as well as the Appellate Court have erred in not considering this very important flaw in the prosecution evidence, and therefore, both the judgments under revision cannot be sustained. The result is that this criminal revision is allowed, the judgments of the trial Court as well as the Appellate Court are set aside and the applicant is acquitted from the charge. The applicant is on bail, his bail bond stands discharged.