' NASIR-UL-MULK, J.--- Tila Muhammad, son of Juma Khan, resident of Hinko Daman, Peshawar, was tried by the Additional Sessions Judge/Special Judge, Peshawar alongwith his son Iqbal under sections 6, 7, 8 and 9 of the Control of Narcotic Substances Act, 1997 (hereinafter called CNSA), read with Articles 3/4 of the Enforcement of Hadd (Prohibition) Order, 1979 and further read with section 216, P.P.C., for possession of 3U kilograms of Charas and 300 grams of heroin and for harbouring a proclaimed offender by the name of Muhammad Amin, resident of District Jhang, Punjab. By judgment and order dated 3-6-2002 Muhammad Iqbal was acquitted of all the charges whereas Tila Muhammad was convicted under section 9, CNSA and sentenced to imprisonment for life and to pay fine of Rs,50,000 in default of payment whereof to undergo one year rigorous imprisonment.
The convict was given the benefit of section 382-B, Cr.P.C. Tila Muhammad was however acquitted of the charge under section 216, P.P.C. As the same had not been proved. The third accused Ibrar, also the son of Tila Muhammad, absconded and, therefore, did not stand trial.
2. Tila Muhammad has filed the present appeal against his conviction and sentence.
3. According to the prosecution case as laid in the F.I.R., information was received by the police about the presence of a proclaimed offender by the name of Muhammad Amin, resident of Gujrat, Punjab, in the house of Tila Muhammad. The D.S.P. Alongwith S.H.O., Police Station Daudzai, Peshawar and a police party raided the house of Tila Muhammad in order to arrest the proclaimed offender Muhammad Amin. The said Muhammad Amin was found inside the residential quarter of the house of Tila Muhammad. He was arrested. On search of the bedroom of Tila Muhammad and Iqbal 30 kilograms of Charas and 300 grams of heroin were recovered. Tila Muhammad and Iqbal were arrested. The Charas and the heroin were sealed in separate parcels. One gram from the heroin and 4 grams from the Charas were separated and sent to the Forensic Science Laboratory for chemical examination.
4. The investigation of the case was conducted by the S.H.O. Of the police station, Haji Imtiaz Khan.
He was the one who arrested the accused, sealed the narcotics in parcels, and sent the Murasila to the police station for registration of the case, which was registered vide F.I.R. No,124 dated 16-7- 2001. The Investigating Officer had also dispatched the samples of the narcotics to the F.S.L. Vide application Exh.P.W.2/2. The result of the F.S.L. Exh.P.W.2/3 is in the positive. The Investigating Officer obtained warrants under section 204, Cr.P.C. Against the absconding accused Ibrar. He also applied for proclamation notices under section 87, Cr.P.C. The Investigating Officer submitted challan after completion of the investigation.
5. The learned counsel for the appellant referred to the contradictions in the statement of the Investigating Officer and the marginal witness to the recovery memo. (Noor Rahim F.C. P.W.3) regarding the samples separated for the Chemical Examiner and submitted that the marginal witness, who is also a Police Official, could not have been present at the time of recovery. He further contended that provisions of section 103, Cr.P.C. Has not been complied with though admittedly there was prior information to the police but no member of the public was associated with the search of the house of the appellant. The learned counsel pointed that there was a delay of 8 days in the receipt of the contrabands by the Forensic Science Laboratory and there is no explanation furnished for the delay. It was next contended that the bags containing the Charas, when brought before the trial Court was found to be unsealed. Further that the Charas weighed 26 kilograms as against the allegation that 30 kilograms were recovered.
6. The Assistant Advocate-General, representing the State, argued that there was no reason for the police to falsely implicate the appellant. That the police had raided the house of the appellant for the arrest of the proclaimed offender and it was during the arrest of Muhammad Amin, the proclaimed offender that the appellant's room was searched and the contrabands were found.
That, therefore, there was no reason for the police to associate members of the public with the raid.
As regards the deficiency in the Charas it was contended, with reference to the statement of the Investigating Officer, that the Charas weighed less as it had dried up since it was seized.
7. The police had raided the house of the appellant in order to arrest the proclaimed offender, Muhammad Amin, resident of District Gujrat. He was arrested, according to the prosecution, from the residential room of the house of the appellant. On account of the arrest of Muhammad Amin the appellant and his son Iqbal were also charged under section 216, P.P.C. For harbouring a proclaimed offender. The accused were however, acquitted of the said charge by the trial Court as the prosecution had not brought on record any document showing that Muhammad Amin had been declared proclaimed offender in a criminal case.
8. During the process of arrest of Muhammad Amin the police claimed to have searched the residential room of the appellant Tila Muhammad from where the 30 kilograms of Charas and 300 grams of heroin were recovered. During cross-examination of the Investigating Officer Haji Imtiaz Khan, he conceded that he had no prior information about the presence of any narcotics in the house. Thus the sole purpose was to arrest Muhammad Amin the proclaimed offender, who according to the statement of the Investigating Officer was arrested from the house of the appellant. The only other member of the raiding party Noor Muhammad F.C. Was examined as P.W.3. In his examination-in-chief he is totally silent about the arrest of Muhammad Amin. And in cross-examination he explicitly stated that he had no knowledge that any body else was arrested from the house of the appellant on the night when the narcotics were recovered. It may be stated that the raid was alleged to have taken place at 9-15 p.m. The marginal witness to the recovery, who had accompanied the Investigating Officer for the raid, materially contradicts the Investigating Officer regarding the arrest of Muhammad Amin from the house of the appellant. It thus casts doubt on the purpose of the raid on the house of the appellant. As stated earlier the accused had already been acquitted under section 216, P.P.C. On the ground that the prosecution had not produced any evidence to show that Muhammad Amin was a proclaimed offender. In this view of the matter the very foundation of the prosecution case becomes doubtful.
9. Another aspect of the prosecution case is the quantity of narcotics recovered and the samples sent to the Forensic Science Laboratory. According to the F.I.R., the recovery memo. Exh.P.W.2/1, the statements of the Investigating Officer and the marginal witness, the Charas was sealed in Parcel No,3 and the heroin in Parcel No,4 after 4 grams of Charas was separated and sealed in Parcel No,1 and one gram of heroin sealed in Parcel No,2 for chemical examination. The Charas, which according to the F.I.R. And the prosecution case as a whole was in a bag, was brought to the trial Court. The trial Court made two material observations. Firstly, that the bag was not sealed and secondly that the Charas was in packets, though the number of packets had not been stated. The prosecution case throughout has been that the Charas was in a bag and there has been no mention of packets. The disclosure of the packets has come from the observation of the Court.
However, it was not known as to how many packets were there and obviously the weight of each packet is also unknown. The prosecution case is that 4 grams of Charas was sent to the Chemical Examiner. If there were packets then indeed it is not known whether the samples were taken from one of the packet or from all of them and what was the weight of the packets from which the samples were sent.
10. According to the prosecution case the Investigating Officer weighed the Charas at the spot. It may be recalled that the raid was conducted at 9-15 p.m. In the month of February. The Investigating Officer stated that he did not carry a scale with him but that he had made arrangement for the scale at the spot. However, when questioned he was unable to give the name of the person from whom he had obtained the scale. The raid having been conducted late in the evening on a ' house in a village where the shops nearby are most likely to be closed and the Investigating Officer is unable to give the name of the person from whom, or from where, the scale was obtained the weighment of the narcotics in the house of the accused is doubtful. Furthermore the quantity of Charas allegedly recovered was found to be less by 4 kilograms when weighed during the trial.
11. The police have charged all the male members of the appellant's household as accused in the case: The appellant's son MuhamMad Iqbal was tried with him whereas other son Ibrar is stated to be still at large. The prosecution has not been able to establish with any reasonable certainty as to whether all, or which of the 3 accused can be attributed the physical or constructive possession of the narcotics. According to the Investigating Officer the narcotics were recovered from the residential room of Tila Muhammad. In cross-examination he stated that though the narcotics.
Were not in physical possession of any of the accused they were present at the time of the recovery from the residential room. From this statement it is not possible to connect all or any of the accused with the contrabands. There is also no evidence, apart from the statement of the Investigating Officer that the room from which the recovery was effected was the bedroom of the appellant or all of the 3 accused jointly.
' In view of the above discussion the prosecution has not been able to prove the case against the appellant beyond reasonable doubt. The appellant is, therefore, entitled to the benefit of doubt and thus his appeal was allowed by a short order of 5-6-2003. Above are the reasons for the short order.