' This appeal is directed against judgment, dated 5th of November, 1997 delivered by the learned IInd Additional Sessions Judge, Mirpurkhas whereby he convicted the appellant, Chakkar, under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced him to undergo rigorous imprisonment for 4 years, 10 stripes and to pay a fine of Rs,5,000 in default of payment whereof to undergo rigorous imprisonment for one more year. The benefit of section 382-B, Cr.P.C.
Was also allowed to him.
2. The facts necessary for the purposes of this appeal briefly stated are that on 21-5-1989 at 10-30 hours A.S.-I. Ghulam Sarwar, complainant (P.W.1) on spy information that the appellant is involved in heroin business and will pass through Mirpurkhas via Kunri bus route, alongwith his staff reached Jhuluri turning and started checking the buses. In the meantime one bus came wherein the appellant was sitting who tried to run away and was suspected. The police officials encircled him and caught him. On his personal search.a plastic Theli containing 230 grams of heroin was recovered from his possession. 10 grams of heroin was separated and sealed for chemical analysis. Mashirnama was prepared at the spot. The accused was arrested who alongwith the recovered heroin was brought to Police Station Taluka Mirpurkhas on the same day where F.I.R.
No,37 of 1989 was recorded.
3. After due investigation challan was submitted in the Court. The appellant did not plead guilty and claimed trial. On the conclusion of the prosecution evidence the appellant was convicted and sentenced as mentioned in the opening para. Of this judgment.
4. The prosecution in support of its case produced only two witnesses, namely, P.W.1 Ghulam Sarwar, A.S.-I. The complainant who supported the contents of his complaint on the basis of which the F.I.R. Was lodged and P.W.2 Muhammad Saleh, Head Constable who is the witness of recovery of heroin from the appellant.
5. The appellant was examined under section 342, Cr.P.C. He denied the allegations against him and stated that the P.Ws. Are inimical towards him and are interested. The appellant further stated in answer to question No,6 as under:-- "I am innocent. I am falsely implicated at the instance of one Moosa as I am complainant in murder case against his son, Murad. My further written statement will besubmitted by my Advocate."
' The further statement of the accused is as under:-- "My brother Ibrahim was murdered in which Murad Bux was accused. Father of Murad Bux namely Moosa is labour leader in Kunri and he is friend of Investigating Officer (complainant) Ghulam Sarwar and Mashir Muhammad Moosa used to compel the accused to compromise with his son Murad Bux in the murder case. The accused refused to compromise. Then on the instance of said Moosa the applicant was falsely implicated and heroin was foisted upon him. The accused is innocent. Neither he was arrested from the alleged place of incident nor heroin was recovered from him.
6. The appellant did not opt to make statement on oath under section 340(2), Cr.P.C. Nor produced any witness in his defence.
7. The learned counsel for the appellant has raised the following contentions:--
(i) That the case against the appellant is the result of his enmity with the police officials who are the only witnesses in the case;
(ii) That the stopping of the bus at a place other than the police station also indicates that no such picket was made and if it had to be made there could be no better place than near the police station;
(mii) That neither the number of the bus nor the name of the company owning the bus has been given nor also the driver, cleaner or any passenger of the bus has been cited produced as witness;
(iv) That there is a material illegality of non-compliance of section 103, Cr.P.C. In that neither any person from the public was associated with the recovery nor any explanation offered for not doing so. Reliance was placed on Pomi v. The State 1995 M LD 927;
(v) That there is an admitted inordinate delay in sending the sample for chemical analysis which has not been explained at all; and
(vi) That the weight of the sample has been given by the Police Officers as 10 grams whereas the weight of the sample received as given in the chemical analysis report is 14.200 grams. This difference in weight which is very material to prove the case has not at all been explained even by a word of mouth. Mst. Miraj v. The State reported as 1994 PCr.LJ 482 has been cited in support of the above contention.
8. The learned Assistant Advocate-General has very candidly$conceded that there is no explanation on record for the delay of 49 days iethe despatch of the sample to the office of the Chemical Examiner, and that the difference in weight as given by the Police Officer in their testimony and the Mashirnama and that given in the chemical analysis report is significant.
9. Having given consideration to the respective contentions rose on behalf of the parties I am of the view that serious doubt has been cast on the case of the prosecution and the appellant is obviously entitled to be given the benefit thereof.
10. There is no material on record which could explain the significant difference in the weight of the sample as given by the prosecution through the statements of the Police Officers and in the report of the chemical analysis. This discrepancy gains further significance in view of the inordinate delay in sending the sample for chemical analysis which again remains unexplained.
11. The only legitimate inference flowing from the above state of record is that the increase in weight has taken place during this period of 49 days as nothing from the prosecution side has been brought up to show how the increase of weight has taken place. There is, thus, no escape from holding that the sample had been tempered with while it was in the custody of the police. The net result would be that the report of the chemical analysis cannot be taken to be pertaining to the sample which the police asserts to have taken out from the heroin allegedly recovered from the appellant.
12. It may also be pertinently observed here that the learned Assistant Advocate-General as per information given to him by the prosecution side has stated before me that the alleged recovered heroin is no longer available. The record does not reveal as to how and when the alleged heroin was destroyed. Nothijg is thus, avaihable on record to connect the appellant with the charge levelled against him.
13. The above discussion leads to the only conclusion that the appellant cannot be convicted for the offence with which he has been charged and that he would be entitled to acquittal in view of the serious doubt cast on the case of the prosecution.
14. Resultantly, this appeal is allowed and setting aside the impugned judgment, dated 5-11-1997 delivered by the learned Additional Sessions Judge, Mirpurkhas, the conviction recorded against the appellant and the sentence awarded to him are also set aside. He is acquitted in the case and shall be released forthwith if not wanted in any other case.
15. Before parting with the case I must observe that the contradictions of the nature as pointed out above in this case are either obliging lacunas left in the case to facilitate the accused person or are serious lapses in the conduct of investigation and prosecution of the case and in either case of necessity have to be strongly deprecated inasmuch as these are ultimately resulting in the acquittals in serious cases of this nature and are an impediment in the proper dispensation of justice. The concerned authorities should, therefore, take appropriate measures to ensure that such lacunas/lapses are not allowed to creep into the cases. Copy of this judgment shall be sent to the Chief Secretary, Sindh for such measures as may be required to be taken by him to arrest the continuation, of such happenings.
16. The judgment in this case had been announced at Karachi by a short order, dated 20th of March, 1998 and above is the reasons in support thereof.