' Appellant has assailed a judgment delivered by Additional Sessions Judge, Dera Ismail Khan on 4- 2"-1998 whereby he has been convicted under Article 3 of the Prohibition (Enforcement of H add)
Order 1979, hereafter to be referred to as the said order, and nas been sentenced to R.I. For 3 years and fine of Rs,3,000 or in default to suffer further R.I. For 6 months with whipping of 5 lashes.
Appellant has further been convicted under Article 4 of the said Order and sentenced to R.I. For 3 years and fine of Rs,3,000 in default of payment of which further R.I. For 6 months with whipping of 5 lashes. Both the sentences have been directed to run concurrently benefit of section 382-B, Cr.P.C., has also been extended.
2. Story of the prosecution in nut shell is that a Murasila (Exh.PA/1) was sent to Police Station Kulachi District D.I. Khan to the effect that a Bus bearing No,209/DNB coming from Tank towards Dera side was signalled to be stopped by the police party consisting of Haqnawaz A.S.I. Gujjar Ahmad F.C.
No,498, Muhammad Akhtar F.C. No,419 at a place known as "Adda Gara Mohabbat" which was searched, and a person in suspected condition was brought down from the same, who later on disclosed his name as Abdul Qayyum. From personal search of this Abdul Qayyum, the appellant, 40 grams of heroin were recovered from a plastic envelope which was found from the side pocket of the shirt worn by him. This heroin was taken into possession by the I.O. Vide recovery memo.
(Exh.P.W.3/1), it was weighed on the spot and one gram was separated and sealed into a parcel No,1 whereas the remaining 39 grams of heroin were sealed into parcel No,2. The Murasila was prepared by Haqnawaz (P.W.4), the complainant and Investigating Officer of the case on 11-11-1993.
An F.I.R., was also lodged on the same date at 18-50 hours whereas the occurrence had taken place at 17-50 hours.
' The appellant was charged under Articles 3/4 of the said order to which he did not plead guilty.
3. To prove its case prosecution examined 4 witnesses. Muhammad Iqbal Shah (P.W.1), A .S .I. And S.H .0., of Police Station Kulachi is a formal witness who submitted complete challan in the Court, Muhammad Aslam (P.W.2), M.H.C. Is also a formal witness who has proved the recording of F.I.R.
Exh.PA on the basis of receipt of Murasila Exh.PA/1 from P.W. Haqnawaz. Muhammad Akhtar (P.W.3) has deposed that on the day of occurrence he was present in the company of Haqnawaz A.S.I. And Gulzar F.C. At "Adda Gara Mohabbat'. They signaled a passenger bus coming from Tank to stop and on their search heroin was found from the appellant who was brought down from the bus. The remaining material was weighed and came to be 40 grams. One gram was separated and sealed into parcel No,1 to for chemical examination, whereas the remaining heroin was sealed into parcel No,2. He has proved his signature as a marginal witness on the memo. Of recovery Exh. P . W . 3/1 .
Haqnawaz (P . W .4) A. S. I. , complainant and Investigating Officer has deposed that he was present along with the police party at the "Adda Gara Mohabbat". A passenger bus coming from Tank was made to stop and it was searched. In the meanwhile one constable apprehended the appellant and from his side pocket a plastic envelope containing heroin was recovered. It was weighed and came to be 40 grams. It was taken into possession vide recovery memo. Exh.P.W.3/1. Two separate parcels, were prepared containing one gram and 39 grams respectfully in the presence of marginal witnesses. He formally arrested the appellant and drafted the Murasila which is Exh.PA/1.
After completion of investigation he brought the appellant to the police station and obtained his custody for one day and, later on he was sent to judicial lock-up. He has also exhibited report of the chemical examiner which is ETI.P.W.4/1.
' The prosecution abandoned P.W. Gulzar.
' In his statement under section 342-B, Cr.P.C. The appellant has denied all the specific questions.
To question No,5 he has replied as under: "There is no independent evidence in this case. Although according to prosecution evidence, the bus in question was full of passengers and the alleged occurrence had taken place in the busiest place known as Adda 'Bus Stand Gara Mohabbat' whereas there are shops, etc. The police officials who are interested in the success of this case to promote their 'Karkerdgi', have falsely involved me in this case. Further, explanation will be given by me in my detailed statement."
' To question No,6 he has replied as under: "I am innocent and have falsely been charged.. The fact is that the bus in question was full of passengers. I had also occupied the seat inside the bus amongst them. When the bus was stopped at Bus Stand Gara Mohabbat the police Constable boarded the bus and found some envelope lying at the floor of the bus. He picked-up the same and addressed me that since he had found that envelope lying near my seat in the bus, therefore, I was responsible for having thrown it there on seeing him boarding the bus. I flatly refused the charge and said that I was a student of a tender age and that I have nothing to do with this malpractice, but I was taken down by the said constable and was arrested. Nothing was prepared at the spot, which was subsequently prepared in the police station My School leaving certificate is placed on the file which is Exh.DDA. According to which my date of birth is 1-2-1979 and I was about 14 years old at the time of alleged occurrence.
I belong to a respectable family and have never indulged in such like affairs. Even in my card of arrest, prepared by the police, I have been shown about 14/15 years of age. None from the passengers or other people boarding the bus and alighting from the bus was associated with the investigation conducted by the Investigating Officer, to see the recovery nor anybody from amongst them was examined. Every proceeding was completed in the police station, where I was also present having been taken from the spot to the Police Station."
' He has declined to be examined on oath and has not produced any witness in his defence.
However, he has produced his School leaving certificate which is Exh.DDA.
4. I have heard the learned counsel for the appellant and State. The learned counsel for appellant Mr. Abdul Karim Khan Kundi, Advocate has contended that the prosecution has come up with two versions. The first version as forwarded by the complainant/ Invatigating Officer, namely Muhammad Akhtar (P.W.3) is that the search was made inside the bus and on finding heroin from the appellant he was brought down from bus. During cross this witness has also deposed that no one boarded or deboarded from the bus on the spot and that the police did not search any other passenger from the bus. Only the appellant was apprehended. The second version of the story has been forwarded by Haqnawaz (P.W.4), the complainant/I.O., who has admitted that the spot being an Adda was such a place where people were boarding and deboarding as passengers. He has also admitted that he had not shown in the site plan Exh.P.W.4/D-1 the presence of the appellant inside the bus. During examination-in-chief this witness has also deposed that one constable apprehended the appellant after having found heroin from him. According to F.I.R., this police constable was Gulzar Ahmed who has not been examined and has been given up. Then according to F.I.R. It has also been said that this Gulzar Ahmed F.C. Brought a suspicious person from inside the bus and the search of this suspicious person was made out of the bus. These two versions of the prosecution also create doubts in the case specially when the appellant in his statement under section 342, Cr.P.C. Has claimed the position and has replied to question No,6 that an envelope was lying at the floor of the bus. A police constable picked up that envelope and made the appellant responsible although the appellant had intimated him that he was a student of a tender age.
5. According to Exh.DA which is school leaving certificate of the appellant, his date of birth is shown to be 1-2-1979. The date of offence is shown to be 11-11-1993. Prosecution has not challenged this document which was exhibited by this appellant during his statement under section 342, Cr.P.C.
Keeping in view this insertion into School leaving certificate and the date of offence the age of the appellant was only 14 years. It means that the appellant had reached the age of 18 years and was not adult within the meaning of clause (a) to Article (2) of the said order. The puberty of the appellant was not proved or even alleged by the prosecution. In view of this position the learned counsel for the appellant has made a reference to the provisions of the Punjab Youth Offenders Rules, 1993 under which the appellant was not to be dealt with but such a dealing has not been made and the appellant has been tried and convicted as an adult person which is in violation of the mandatory provisions of law.
6. The learned counsel for appellant has also made a reference to the following wording of P.W.4 who is himself complainant/I.O. "I do not remember as to after how many days the sample was sent to F.S.L. For chemical analysis." I find that in the report of chemical examiner P.W.4/1 it has been mentioned that parcel was received on 4-12-1993. Where was the recovered material kept and where was the sample kept for 24 days continuously and then sent to the chemical examiner is a mystery. The chain of the intactness of the sample is broken. For this benefit of doubt is to be given to the appellant as per the established principles of law.
' In the present case the only witnesses of recovery are officials of the police numbering 2.
Complainant and Investigating Officer, is the same person. The circumstance in which the present case is, there is an established law that the story of the prosecution becomes a mockery of law and cannot be relied upon. Citations being 1995 M LD 1532 and 1989 PCr.LJ 601.
' So far as the mystery of the samples is concerned and that also for 24 days the learned counsel for the appellant has relied on 1997 SCM R 1494 in which delay of 21 days in sending the sample to the chemical analyser was considered to be fatal for the case of the prosecution. In 1997 SCM R 1011 the quantity of one gram of heroin sent for the chemical analysis was considered to be grossly inadequate by the Apex Court.
Another contention of the counsel for appellant is that Muhammad Akhtar (P.W.3) has admitted that driver of the bus was cited as a witness of recovery memo. According to challan Gulzar Ahmed F.C. Is also one of the witnesses of recovery. However, both these material witnesses have not been examined and this way clause (g) to Article 129 of the Qanoon-e-Shahadat, 1984 comes into operation. In this context reliance has been placed on 1996 SCM R 308, 1996 SCM R 167, 1996 SCM R 176 and 1995 1996 SCM R 181.
7. From the entire discussion as made above, the prosecution has not been able to bring the guilt of the accused beyond reasonable doubts. While giving the benefit of doubt to the appellant, the impugned judgment is set aside and the appeal is allowed.