' RAJA MUHAMMAD KHURSHID, J.--- The appellant was convicted under section 9(b) of the Control of Narcotic Substances Ordinance, 1995 and sentenced to three years' R.I. And a fine of Rs,5,000 or in default to suffer further R.I. For six months vide judgment, dated 23-10-1996 passed by Mr. Sabah Mohy-ud-Din Khan, learned Special Judge, Islamabad appointed under the aforesaid Ordinance.
2. The brief facts are that a police party headed by Ghulam Muhammad Baqir, S.-I. Was present on G.T. Road near Sihala Mor when the appellant was seen coming from the side of Rawalpindi city. On seeing the police party, the appellant took a back turn and started walking quickly which aroused suspicion against him. The police party gave a pursuit to the fleeing appellant and overtook him at some distance. Upon personal search, 250 gms. Of Charas was found in the right pocket of the 'Salooka worn by him under the shirt. It was in shopping-bag. The 10 gms. Of Charas was separated from the bulk and the same was sent to the Chemical Examiner for analysis. The report of the Chemical Examiner was positive.
3. The learned trial Judge considering the evidence brought on record, recorded the aforesaid conviction and sentence upon the appellant after finding him guilty. The aforesaid conviction is challenged in this appeal on the ground that the S.11,0., who had lodged the F.I.R. Also assumed the investigation and cited all his subordinates as P.Ws, which was allegedly unfair and illegal because a complainant was not supposed to be an Investigating Officer in the same case; that the alleged Charas was made into a sealed parcel and was not kept in proper custody; that the same was sent to the Chemical Examiner with the delay of seven days, thereby, created genuine doubts regarding its dispatch and also the report obtained under such circumstances; that the appellant remained unrepresented and was unable to cross-examine the witnesses which allegedly prejudiced whole of trial; and finally the recovery of Charas from the person of the petitioner was allegedly made in violation of section 103, Cr.P.C. As no respectable person was associated during such recovery. It was, therefore, prayed that the prosecution case remained highly doubtful and as such, no conviction could be recorded against the appellant. Learned counsel for the appellant relied upon 1997 SCM R 617 and 1997 PCr.L.J 603 (Karachi) to show that the recovery of Charas from the appellant was highly doubtful in the absence of independent recovery witnesses.
4. Learned counsel for the state, however, stated that the prosecution had proved its case against the appellant beyond any reasonable doubt. In this connection, it was contended that the police employees were as good witnesses as any other person from the public if it was not shown that they were either interested or inimical to the accused. Even otherwise, each case of recovery has to be appreciated on. Its attending circumstances and no hard and fast rule could be laid as to under what circumstances, a recovery should be believed or disbelieved. The mere fact that the Investigating Officer was also the complainant in the case would not make the trial illegal particularly when no prejudice has been caused to the accused/appellant during trial.
5. We have considered the foregoing submissions. First of all, it is to be seen whether the recovery in this case in presence of the police employees was good or bad in the eye of law. In this respect, no hard and fast rule of universal application Could be laid down, as each case has to be considered on its own merits. In the instant case, the recovery was effected from the appellant while he was present on the highway. On seeing the police party, he had taken a back turn and started walking quickly whereupon, the police party got suspicious and overpowered him at some distance after a hot pursuit. If the police party would have started looking for independent persons then it would have not been possible for them to apprehend the accused/appellant red-handed.
Rather it would have given a chance to the appellant to escape scot-free instead of being overpowered with the contraband drug.. In such a situation, looking for an independent person of the locality would have been a far cry. The provisions of , section 103, Cr.P.C. Would, of course apply stricto senso whenever a search is A to be made in respect of a place but not at the time of personal search of a person apprehended under the given situation. In this respect, reliance can be placed on 1987 PCr.LJ 125 (Federal Shariat Court). The appellant has, therefore, no case on this ground to expect any benefit against his conviction. However, the remaining points would call for serious attention, wherein, it is alleged that the complainant/S.H.O. Should have not investigated the case himself lest it has prejudiced the trial. In the instant case, the S.H.O., who had become the Complainant also assumed the investigation and submitted the challan against the appellant/accused. This is of course quite anomalous and could be considered to have caused prejudice to the accused because all the witnesses in the case were subordinates to him. Even otherwise, the custody of the Charas recovered from the appellant does not appear to be creditable as Sultan Ahmad, A.S.-I. (P.W.1) ' stated that he kept the parcels in safe custody and nobody tampered with the aforesaid parcels out of which, he. Handed over one parcel to Rafaqat Hussain, Constable (P.W.2) on 11-3-1996. The recovery was effected on 4-3-1996 but it does not appear from the statement of the aforesaid witness that the case property i,e,; Charas was kept in the Malkhana in safe custody. On the contrary, it reveals that it kept in the personal custody of the aforesaid Sultan Ahmad, A.S.-I. w,e,f, 4- 3-1996 to 11-3-1996 when the same was handed over to the aforesaid Rafaqat Hussain for its onward transmission to the office of the Chemical Examiner, Rawalpindi. It is not explained by the witness as to why it was kept for about seven days in his custody and was not transmitted promptly to the office of the Chemical Examiner. This is a serious flaw in the prosecution case which ought to have been explained but has not been done so. Likewise, the Investigating Officer who was also the complainant in the case appeared as P.W.5 but did not explain about the delayed dispatch of the questioned Charas to the office of the Chemical Examiner. 'In such a situation, the result and the report of the Chemical Examiner would become unreliable on account of I C unexplained delay in sending the material to the Expert. In this regard, reliance may be placed on Muhammad Arif v. The State 1993 PCr.LJ 1953. Lastly, the perusal of the evidence shows that not a single question was put by the appellant/accused to any of the witnesses during cross- examination which was recorded as nil qua all the prosecution witnesses. It is an admitted fact that the appellant was unrepresented by a counsel and as such, was handicapped to bring out the truth through the cross-examination regarding the delayed dispatch of the incriminating material to the Expert and also to bring on record the correct information regarding the actual custody of the same during the period from 4-3-1996 to 11-3-1996. It would have been better, if the learned trial Judge, in such an unrepresented case, had taken care to call upon some 'Free Legal Aid Society' to conduct this case on behalf of the appellant to satisfy the ends of justice. However, it has not been so done, which definitely caused prejudice to the accused at the trial.
6. In view of our above discussion, we come to a considered conclusion that the prosecution has not been successful to prove its case against the appellant beyond any reasonable doubt. As such, while giving benefit of doubt, we accept the appeal and acquit the appellant. The conviction and sentence passed upon him by the learned Trial Court are set aside. The appellant shall be set at liberty at once if no more required in any other case.
7. The contraband drug shall stand confiscated to State, and be destroyed in due course.