Criminal Appeal No. 84 of 2012
Present
Mr. Justice Aqeel Ahmed Abbasi
Mr. Justice Muhammad Junaid Ghaffar
Date of hearing : 09.06.2014
Date of judgment : 09.06.2014
Appellant : Abdul Qadir through Mr. Shaukat Hayat, advocate.
Versus
Respondent : The State through Mr. Shafiq
Ahmed, Special Prosecutor, ANF.
JUDGMENT
Aqeel Ahmed Abbasi, J. Being aggrieved and dissatisfied with the judgment dated 29th February 2012 passed by the learned Judge of Special Court No.II (CNS) Karachi, in Special Case No.430/2011 (Old Special Case No.65/2008) in Crime No.09/2008 registered under Section 9-C CNS Act, 1997 at P.S. A.N.F. Clifton, Karachi, whereby the appellant Abdul Qadir son of Muhammad Zakria has been convicted for an offence under Section 6 punishable under Section 9-C CNS Act, 1997 to suffer life imprisonment and fine of Rs.1,000,000/- (Rupees One Million only), whereas in case of default in payment of fine the appellant will suffer further rigorous imprisonment for five years with benefit of section 382-B Cr.P.C, the appellant has preferred instant appeal under Section 48 of the Control of Narcotic Substances Act, 1997 with the prayer to set aside the impugned judgment and to acquit the appellant in the instant crime.
2. Brief facts of the case as stated in the Memo of Petition are that an FIR has been registered at P.S. Anti Narcotics Force, Clifton, Karachi dated 19.05.2008 at 1800 hours by complainant i.e. State through Inspector Muhammad Afzal with following allegations:
“On 19.05.2008 the complainant along with his police staff ASI M. Farid Abbasi, PC Abid Mukhtar, PC Faizal Zaheer, PC Shamraiz Khan and other ANF staff were busy in patrolling duty in SITE Area when reached at Habib Bank Chowrangi received spy information that one Abdul Qadir in his Car No.AJZ-202 silver color is present opposite Muslim Commercial Bank Seamen’s Chowrangi Branch SITE, Karachi for delivery of huge quantity Chemical (DIAZA PAM). On receipt of information they immediately rushed there under the instructions of the superiors along with spy informer at 1600 hours they found one person sitting in Car No.AJZ-202 at opposite Muslim Commercial Bank Seamen’s Chowrani Branch, the spy informer pointed towards him that person sitting in driving seat as Abdul Qadir, they encircled him and got apprehended. The persons present over there were asked to become witnesses but they avoided to become the witnesses as such in presence of their staff PC Amir Mukhtar and PC Faisal Zaheer were cited as Mashirs and accused disclosed his name as Abdul Qadir son of Muhammad Zakaria R/o House No.504, Five Star Garden Soldier Bazar Karachi. On searched car the recovered 10 Khaki Color Drums out of which 08 drums were recovered from the front seat paidan and back seat of the car, while two from the diggi of the car, all drums were opened and found diazepam chemical in white plastic thelli. On weighing nine drums were found of 25 KG weight each whereas one drum weighting 23 KG total 248 KG chemical was recovered and from these Drums, 10 grams each was separately sealed for chemical examiner and remaining were separately sealed and from his personal search recovered Rs.300/- CNIC, one MCB Smart Car, one press information Card, Hyderabad Gymkhana Card, one Mobile phone Samsung and watch and from Dash board of the car Registration book of the car in name of Shaikh Kamal Khan son of Shaikh Baz Khan resident of House No.B-47, Block “T” North Nazimabad, Karachi. The Recovered Articles drums of diazepam, samples, personal search car and key were taken into custody. Accused was arrested as per rules. Memo of recovery was prepared on the spot in presence of Musheers, read over to them and they put their signatures on it. Nature of case attracts provisions of section 9 (C) CNSA 1997 therefore case against the accused was registered after reaching PS.”
3. Consequent upon registration of the above said FIR, the complainant SI Muhammad Afzal conducted investigation of the case and submitted challan on 04.06.2008 before the learned trial Court. The trial Court i.e. Special Court No.II (CNS) Karachi, took cognizance of the offence by framing charge, to which the appellant pleaded not guilty and claimed to be tried.
4. At trial, prosecution examined PC Amir Mukhtar, who produced memo of arrest; recovery and personal search of the appellant and Sub-inspector Mohammad Afzal, who produced report of the chemical examiner, the prosecution closed its side and the defense evidence and statement on oath of the appellant was also recorded. In the first round of litigation the learned trial Court vide judgment dated 29.02.2009 sentenced and convicted the appellant to suffer R.I. for life and also directed him to pay fine of Rs.100,000 (Rupees one hundred thousand only) or in default thereof to suffer further S.I. for one year. The appellant preferred Criminal Appeal No.227/09 before this Hon’ble Court and this Hon’ble Court vide order dated 2.11.2010, was pleased to set-aside the judgment and remanded the case back to learned trial Court with directions to examine the chemical examiner Dr. Fazal Ellahi Memon, whereas, the Appellant was directed to be entitled to cross examine the chemical examiner and also to record his fresh statement under section 342 Cr.P.C. and to produce defence witnesses.
5. After remand of the case back to the trial court, the Chemical Examiner Dr. Fazal Elahee Memon was also examined on 12.4.2011. The statement u/s 342 of appellant was also recorded. The appellant also examined himself under section 340 (2) Cr.P.C, he was also cross-examined by the prosecution. The appellant also lead two defence witnesses namely (1) Mohammad Shakeel Iqbal and (2) Younus Malik. The appellant deposed that he is innocent and that nothing incriminating has been recovered from him.
6. However, the learned Judge of Special Court No.II (CNS) Karachi, through impugned judgment has convicted the appellant and sentenced him to suffer life imprisonment and fine of Rs.10,00,000/- (Rupees One Million), which has been assailed by the appellant through instant appeal.
7. Learned counsel for the appellant has vehemently criticized the finding as recorded by the learned Judge of the Special Court No.II (CNS) Karachi, for being perverse and contrary to the record and the evidence produced by the prosecution in the instant case. It has been contended by the learned counsel for the appellant that the entire case of the prosecution is groundless and is based on no evidence, whereas, the appellant has been falsely implicated in the instant crime by the prosecution. Per learned counsel, in the first round of litigation, the Division Bench of this Court in Criminal Appeal No.227 of 2009 vide order dated 2.11.2009 set aside the judgment of the Special Court No.I, (CNS) Karachi, and the matter was remanded back to Special Court No.I CNS, Karachi, for examination of the Chemical Examiner namely, Dr. Fazal Ellahi Memon, for the reasons that his report was not based on any chemical test of the samples nor reference to such test was made in the report of the Chemical Examiner. It has been contended by the learned counsel that such remand of the case to the trial Court with specific directions only to examine the Chemical Examiner in the instant case was made for the reasons that there was no other incriminating material or evidence produced by the prosecution before the trial Court, which could possibly support the prosecution case against the appellant. It has been contended by the learned counsel for the appellant that such remand of the case, instead of acquitting the appellant as there was no evidence produced by the prosecution before the trial Court, which could possibly connect the appellant with the alleged offence, was not justified under the facts and circumstances of the case and amounted to giving an opportunity to the prosecution to improve their case by further evidence. However, per learned counsel, the appellant in order to get the proper scrutiny of the entire evidence available with the prosecution against him, did not file any appeal against the order of remand and preferred to defend his case before the trial Court in accordance with law. Per learned counsel, even after recording of the evidence of the Chemical Examiner in the instant case, the case of the prosecution did not improve, rather it further reflected upon the falsity of the prosecution case against the appellant, whereas, in the cross-examination of the Chemical Examiner by the learned counsel for the appellant, there remains no sanctity of the Chemical Examiner’s Report regarding the substance allegedly recovered by the prosecution to be termed as ‘narcotics substance’. While referring to the merits of the case, learned counsel for the appellant has submitted that admittedly the prosecution has intercepted the appellant in day light near Habib Chowrangi, SITE, on the basis of some prior spy information, however, no private witness has been associated by the prosecution in terms of mandatory requirements under Section 20-21 of CNS Act, 1997 read with Section 103 Cr.P.C, whereas no explanation in this regard has been given either in the FIR or challan. Per learned counsel, the masheernama of Chemical (Diazepam) and arrest of accused on 19.05.2008 was prepared at 1600 hours near MCB, Siemens Chowrangi Branch, Site Karachi, which is a thickly populated industrial area, where large number of public available including the vendors and drivers of public transport and private vehicles, chowkidars, guards and employees of the bank, however, the prosecution has not associated any private witness in this regard nor in the FIR, Challan or Masheernama it has been stated that any effort was made by the prosecution in this regard. It has been further contended by the learned counsel for the appellant that even the owner of the vehicle i.e. AJZ-202 from which the alleged recovery of the narcotics substance has been made, which is admittedly not owned by the appellant and is registered in the name of Shaikh Kamal Khan, has not been shown or examined as prosecution witness in the instant case nor even the informer on whose instance the entire prosecution case is based, has been examined as witness. Per learned counsel, in the FIR, masheernama and statement under Section 161 Cr.P.C neither the description, make and model of the vehicle has been shown nor even registration book of such vehicle or keys has been produced by the prosecution before the leaned trial Court, which otherwise, create serious doubts on the prosecution story as the alleged recovery was not made from the possession of the appellant and it has been allegedly recovered from the aforesaid vehicle. Learned counsel further submits that even from perusal of the contents of the FIR, wherein, it has been alleged that 10 khaaki drums containing 25 kilograms each i.e. about 248 Kg of diazepam were being transported and recovered from the seat and diggi of the car, is not believable as such huge quantity in the ten drums cannot possibly be carried in a car, hence it is clear that the alleged recovery has been foisted upon the appellant, who otherwise is not the owner of such car. Learned counsel for the appellant has further submitted that it has been established through evidence that none of the prosecution witnesses is qualified to determine as to whether the chemical allegedly recovered is a narcotics or otherwise nor any such test was conducted at the time of alleged recovery of such substance. Whereas, even in the chemical report furnished by the Chemical Examiner, it has been stated that in the laboratory the facility to examine and determine as to whether the chemical is a narcotic substance, is not available and even opinion of Chemical Examiner is based on presumptions and assumptions. Per learned counsel, it is cardinal principle of criminal law and justice that the prosecution has to establish the case against the appellant beyond any reasonable doubt and cannot rely on the weakness of the defence, whereas, in the instant case, the prosecution has miserably failed to produce any material or evidence, which may either connect the appellant with the alleged offence or could substantiate the prosecution story against the appellant without reasonable doubt. Per learned counsel, inspite of remand of the case by the Division Bench of this Court, the learned Judge of Special Court No.I (CNS) Karachi, after having relied on the same prosecution evidence, which was earlier discarded by a Division Bench of this Court, has convicted the appellant in similar terms in a mechanical manner without applying independent mind to the facts of the case. Learned counsel for the appellant has also readout the evidence of the prosecution witnesses as well as evidence of the Chemical Examiner in the instant case and has pointed out the material contradictions, and has prayed that the impugned judgment may be set aside and the appellant may be acquitted from the crime. In support of his contention, learned counsel has placed reliance the following cases:
1. 2006 YLR 2826 Iftikhar Ahmed v. The State
2. 2005 YLR 742 Rehmat Ali v. The State
3. 2006 YLR 401 Mamoor Shah v. The State
4. AIR 1934 Allahabad 273 Mt. Tltli v. Alfred Robert Jones
5. 2012 P.Cr.L.J 830 Okeke Erec Ifeeanyl v. The State
6. PLD 1986 F.S.C 265 Abdul Sammad v. The State
7. 1995 MLD 1700 Ghulam Muhammad v. The State
8. 1995 MLD 1152 Muhammad Kaleem v. The State
9. 2005 SCMR 1954 Muhammad Imran v. The State
10. 2013 CLC 1171 Fida Muhammad v. Uma Khita
11. PLD 1965 (W.P) Lahore 324 The State v. Muhammad Yousuf
12. PLD 1999 Lahore 18 Muhammad Nawaz & another v. The State
13. 2009 P.Cr.L.J 579 Qaisrullah v. The State
14. 2007 P.Cr.L.J 483 Gul Amin v. The State
15. SBLR 2006 (Sindh) 1448 Attallah @ Qasim v. The State
16. PLD 2008 SC 376 Arshad Mehmood v. The State
17. PLD 2005 Karachi 128 Taj Wali v. The State
18. 2003 SCMR 881 State v. Hemjoo
19. 2002 P.Cr.L.J 1086 Imdad Ali Junejo v. The State
20. 2012 P.Cr.L.J 1927 Hidayatullah v. The State
21. 2012 YLR 251 Naimatullah Khan v. The State
22. PLJ 2007 Cr.P.C 702 Gul Amin v. The State
23. 1995 SCMR 1345 Tariq Pervez v. The State.
8. Conversely, learned Special Prosecutor, ANF has opposed the contention of the learned counsel for the appellant and supported the impugned judgment on the ground that diazepam has been recovered from the vehicle in presence of the masheers of recovery, who according to him, have supported the prosecution case and have stated before the trial Court that the diazepam has been recovered from the said car and the appellant was arrested on the same day in presence of the masheers of arrest and recovery. It has been further argued by the learned Special Prosecutor that the report of the Chemical Examiner has also supported the prosecution case. Lastly he has prayed to maintain the judgment of the trial Court. In support of his contention, he has placed reliance in the case of Zafar v. The State 2008 SCMR 1254.
9. We have heard the learned counsel for the appellant as well as learned Special Prosecutor, ANF and perused the impugned judgment and the record with their assistance. From perusal of the record, it appears that the place of the alleged incident is a very thickly populated area viz Muslim Commercial Bank, Seamen’s Chowring Branch, SITE, Karachi, from where appellant was arrested and alleged recovery of diazepam was made from the car in presence of the witnesses, who are police officials, whereas, prosecution has failed to associate any private witness from the place of incident with memo of arrest and the alleged recovery of diazepam from appellant. We have also carefully examined the evidence of the prosecution witnesses and cross-examination conducted by the learned counsel for the appellant. From the perusal of evidence, it appears that P.W. Amir Mukhtar, PC ANF has examined as Ex.5 by the prosecution, who while cross-examined by the learned counsel for the appellant, has stated that “I do not remember the model and made of the company of the car of the accused. It is correct to suggest that mashirnama of recovery Ex.5/A is not denoting the number of our mobile and number of ANF personnel. It is correct to suggest that we had not mentioned in the mashirnama that weight of the chemical was taken with electronic scale. The weight of the samples were taken with small size weighing scale. It is correct that I have not mentioned in the mashirnama that the samples were weight with small size weighing scale. It is correct to suggest that I am not an expert”. Similarly, P.W. Muhamad Afzal, SI, ANF has also been examined as Ex.7, who while cross-examined by the learned counsel for the appellant, has stated that “ I do not remember the number of the vehicle and name of his owner which were checked by us. Spy met with me at Habib Bank Chowrangi at first instance he gave me information on telephone and then met me. It is correct to suggest that mashirnama or recovery do not show that the spy gave me information on telephone. Spy was picked up from the Habib Bank Chowrangi. It is correct to suggest that I had not given separate number to the drums weighing 33 kgs. I had given serial number of all the drums from 1 to 10. It is correct to suggest that on the drum serial No.2 Ex.5/B, there is number which is not mentioned in the mashirnama. It is correct to suggest that I have not produced the roznamcha entry to show that I sent the sample to the chemical examiner. It is correct to suggest that it is not mentioned in the mashirnama that I ascertain the nature of recover substance on the basis of experience. I do not know the chemical name of the diazepam. It is correct to suggest that chemical report is not denoting that the description of the formula applied in the test. After the recovery, the property deposited in Malkhana. It is correct to suggest that I had not mentioned anywhere that I had deposited the recover property in the Malkahana of P.S. It is incorrect to suggest that I had not taken efforts for arrest of the real culprit Shahzad. It is incorrect to suggest that I had taken amount from the Shahzad and released him, instead of him I posted the recovery against accused Qadir. It is incorrect to suggest that I had demand amount from the accused Abdul Qadir at Seamen’s Chowrangi and on his refusal I had booked him falsely in this case. It is incorrect to suggest that I did not conduct fair investigation in this case.”
10. Perusal of the mashirnama of arrest and recovery of Diazepam (Ex.5/A) shows that it has not been mentioned that the said diazepam has been weighed with electronic scale or hook style on the spot, while in the cross-examination, P.W. Amir Mukhtar eye-witness of the alleged recovery has stated that he has not mentioned in the mashirnama that the samples were weighed with small size weighing scale or electronic scale, which shows the contradiction in the evidence of prosecution witnesses regarding recovery of chemical substance, its weightage and drawing samples on the spot.
11. Dr. Fazal Ellahi Memon, Chemical Examiner Service Hospital Karachi, who was not earlier examined by the prosecution, has been examined as Ex.16 in compliance of the order dated 2.11.2010 passed by the Division Bench of this Court in Criminal Appeal No.227 of 2009 filed by the appellant. In the cross-examination, learned counsel for the appellant has put a specific question regarding the ratio of chemical percentage of the diazepam which was not mentioned in his report Ex.7/B, to which he has responded by stating that “due to non-availability of modern facilities the chemical percentage is not mentioned in the report Ex.7/B but we only analysis through manual process.” He has also admitted in his cross-examination that “I have not specifically mentioned in the report Ex.7/B that unconsumed sample were returned to the ANF. Vol. says that the separate register was maintained by the Chemical Analysis Office about the detail of receiving and return of the unconsumed sample. It is correct to suggest that formula was not mentioned in the report Ex.7/B that is “7-Chloro-I-methyl-5-phenyl-2,3-dihydro-IH-1,4-benzodiazepin-2-one.”
12. From careful perusal of the material produced by the prosecution and the evidence of the prosecution witnesses in the instant case, it has emerged that the prosecution, admittedly, did not associate any private witness of the area from where the alleged recovery of the chemical substance and arrest of the appellant was made on the basis of previous spy information in the day time (4:00) PM at a very thickly populated area near MCB Seamen’s Chowrangi Branch, SITE, Karachi. No explanation in this regard has been made either in the FIR, Memo of Arrest, Challan or in the evidence of prosecution witnesses, who are all police officials, hence violated the express provisions of Section 20 and 21 of the CNS Act, 1997 read with Section 103 Cr.P.C. It has also come on record that prosecution did not examine the person on whose spy information the appellant was allegedly transporting the chemical substance (diazepam) in 10 drums in huge quantity i.e. 248 Kgs in the vehicle bearing No.AJZ-202, nor produced the vehicle or its key before the trial Court as case property. The owner of said vehicle namely Shaikh Kamal Khan has neither been cited as prosecution witness nor his evidence has been recorded to support their case or to establish any connection of the appellant either with the aforesaid vehicle or with the chemical substance (diazepam), which was allegedly recovered from the said car. The I.O and other prosecution witnesses of the case have admitted in their cross-examinations that they did not have the expertise nor conducted any preliminary test at the time of intercepting the car and making recovery of the chemical substance to ascertain as to whether the chemical was diazepam or not. The material contradictions with regard to weighing of the chemical substance at the spot, drawing samples from each drum and sending the same for chemical examination have also been noted. Whereas, even the chemical examination report is sketchy as it does not contain any reasons whereby, the Chemical Examiner has formed an opinion that the chemical substance is diazepam. On the contrary, it has also come on record through prosecution evidence that the Chemical Examiner Dr. Fazal Ellahi Memon, who was not earlier examined by the prosecution for the reason best known to them in the earlier round of litigation and was only examined after the direction of a Division Bench of this Court, that in the Laboratory, wherein the substance has been examined, there is no scientific method or facility available to ascertain the chemical properties of diazepam, whereas, as per evidence of the Chemical Examiner, the opinion has been formed without even performing any test to determine the physical properties of the chemical substance allegedly recovered from the appellant. Admittedly, the chemical substance (diazepam), is not a narcotic drug, whereas, it is a controlled substance shown in the Schedule IV of the Rules of CNS (Regulation of Drugs, Controlled Chemical, Equipment and Material Rules 2001), which is widely used in Pharmaceutical Industry etc. and importable item in the market under Import Policy Order of the Chemicals, hence the burden upon the prosecution in the instant case was more stringent to support their allegation, which the prosecution in the instant case has failed to discharge satisfactorily, whereas, the Chemical Report (Ex.7/B) appears to have been issued in gross violation of mandatory provisions of Section 36 (2) of CNS Act, 1997 as well as Rules of CNS (Govt. Analysis) Rules, 2001. It will not be out of place to observe that without prejudice to hereinabove defects in the prosecution evidence, the expert opinion under Article 59 read with 65 of the Qanun-e-Shahadat Order 1984, is merely a circumstantial corroborative evidence, which is not binding on the Courts, whereas, in the absence of any other independent corroborating evidence the conviction cannot be awarded merely in view of such opinion, particularly, when there is reasonable doubt and the benefit of which has to be extended in favour of an accused.
13. In the case of Taj Wali and others v. The State PLD 2005 Karachi 128, wherein it has been held as under:
“Ss. 9(c) & 21. Application of evidence. Mashirs and all prosecution witnesses had made improvements in their statements recorded by the Court as against the FIR and those recorded under S. 161, Cr.P.C on material aspect of the case. Such improvements and contradictions could not be taken lightly and evidence of said mashirs and witnesses would require strong and independent corroboration.”
14. In the case of Hidayatullah v. The State 2012 P.Cr.L.J 1927 Sindh, wherein it has been held as under:
“(a) S.9(c) Possessing and trafficking of narcotics. Appreciation of evidence. Benefit of doubt. Contradictions were found in the statements of prosecution witnesses, with regard to ocular account, recovery and weight of allegedly recovered narcotics. Both the witnesses were Excise Department Personnel and complainant was the Investigating Officer. Story of the prosecution was pock marked by a doubt. Accused was acquitted by granting him benefit of doubt and he was ordered to be released, in circumstances.
(b) Evidence. Police personnel as witnesses. Where only Police personnel were witnesses and were the only official witnesses, the Court must scrutinize evidence with a greater degree of circumspection.”
15. In the case of Imdad Ali Junejo v. The State 2002 P.Cr.LJ 1086, a Division Bench of this Court has held as under:
“In this case indeed there is violation of section 21 of the Act it is argued at times that the provisions of section 21 of the Act are unrealistic as if it was strictly followed then nobody could be arrested on the spot. There is weight in this argument where under a routine patrolling the policy party would come across suspect whom they would want to check. If strict adherence to section 21 was followed and a person of the rank was not available then perhaps the suspect would be able to run away or escape. However, where in the F.I.R it is stated clearly that spy information was received and that the police were aware in advance as to the exact location of the person then they should follow the provisions of section 21 of C.N.S Act. A spy information is always knowledge in advance and the police party always leaves the police station with the intent and purpose of the search and arrest. In this case also the spy information was available in advance yet they did not adhere to or follow the provisions of section 21 of C.N.S. Act.”
16. In the case of Niamatullah Khan v. The State 2012 Y.L.R 251, another Division Bench of this Court has held as under:
“Contradiction in the deposition of the prosecution witness with regard to weighing of contraband items had created doubt about the weight of the items alleged to have been recovered from the accused. No previous record of conviction against accused person was available.
If law provided a procedure for doing of a thing in particular manner same was to be done in that particular manner or not at all.”
17. In the case of Gul Amin v. State P.L.J 2007 Cr.C. (Peshawar) 702, it has been held that “no credible evidence on record to connect accused with the commission of offence. Question of conscious possession of charas and opium from accused. Prosecution even had failed to disclose any connection of accused either with the motorcar from which contraband charas and opium were recovered, either as its owner or driver or in any other capacity or with the ownership of contraband charas and opium, which were recovered from its dicky and foot mats of the car. Where contraband material was found lying concealed in a vehicle in a manner that it was not discoverable from inspection of the vehicle and it was necessary to have special knowledge about its concealment to recover it, in such cases mere presence.”
18. In the case of Mamoor Shah v. The State 2006 Y.L.R 401, it has been held that “S.9(b). Control of Narcotic Substances (Government Analysts) Rules, 2001, R.6… Appreciation of evidence… Prosecution, in case of narcotics, was under a heavy legal obligation to prove that material recovered from the possession of accused was narcotic in any form recognized by Control of Narcotic Substances Act, 1997; for that purpose report of Forensic Science Laboratory, would assume great importance as nature of substance could be determined only on Chemical Examination. Report of Chemical Laboratory in the present case, not only was not prepared on requisite proforma, but also did not bear the signatures of Chemical Examiner and Chief Chemical Examiner despite the fact that designation of both authorized officer was provided at the bottom of the report…Requisite Form II, meant for the result of Chemical analysis, was requirement of R.6 of Control of Narcotic Substances (Government Analysts) Rules, 2001. Non-preparation of F.S.L report on the prescribed Form was in fact violation of statutory rules and such a legal infirmity would render report of chemical analysis nullity in the eyes of law…Impugned report being short of requisite description, it could not be said that said report was related to the present case…Such report could not be used against the accused. Prosecution had not been able to prove that material recovered from the possession of accused was in fact Charas… Conviction and sentence of accused were set aside and he was ordered to be released from jail.”
19. In the case of Ghulam Muhammad v. The State 1995 MLD 1700, it has been held that “Chemical Examiner, who as a Chemical Expert conducts the analysis through chemical tests is required to give precise answer about the ingredients of the sample sent to him for examination.”
20. The Hon’ble Supreme Court, in the case of Tariq Pervez v. The State 1995 SCMR 1345, has held that “For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts. If a simple circumstances creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right.”
21. In view of hereinabove facts and circumstances of the case, the contradictions noted in the prosecution witnesses, the defects pointed out in the Chemical Examiner Report and the violation of the specific provisions of law including sections 20, 21, 36(2) of CNS Act as well as Rules of CNS (Regulation of Drugs, Controlled Chemical, Equipment and Material Rules 2001), read with Section 103 Cr.P.C by the prosecution in the instant case, and by respectfully following the ratio of the decisions on the subject controversy as referred to hereinabove, we are of the opinion that the prosecution has miserably failed to establish their case against the appellant without reasonable doubt, whereas the impugned judgment suffers from the legal defects, hence not sustainable in law. Accordingly, the impugned judgment was set-aside, appeal was allowed and the appellant was acquitted from the alleged charges in the instant case vide our shot order dated 09.06.2014 and these are the reasons for such short order.
Appeal stands allowed alongwith listed applications in the above terms.
JUDGE
JUDGE