Muhammad Wali vs The State

ORDER

ROZI KHAN BARRECH, J.---Vide impugned judgment dated 10.04.2019 (hereinafter "the impugned Judgment ") passed by learned Special Judge, CNS/A dditional Sessions Judge, Dhadar at Sibi (hereinafter "the trial Court ") in Narcotic Case No. 03 of 2019 vide FIR No.01/CH/2019 of Excise Sibi dated 21.02.2019 registered with Excise Police Station Sibi, the appellant namel y Muhammad Wali son of Gul Muhammad has been convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter "the Act") and sentenced to suffer RI for ten (10) years with fine of Rs.50,000/- (Rupees Fifty Thousand Only) and in defaul t thereof to further undergo for a period of six months' SI with benefit of section 382-B, Cr .P.C.

2. Brief facts disclosed from the report of complainant Javed Ahmed, Excise Inspector (Ex.P/2-A) are that at 10:00 a.m., when the Excise Police Sibi was usually checking the crossing vehicles at National Highway , opposite to Bolan Weir Rest House, a mini passenger Wagon No.BML-668 came there from Quetta side, which was stopped for checking. During course of checking found a person sitting on front seat of the Wagon. On inquiry he disclosed his name as Muhammad Wali (appellant) and when his personal search was conducted, ten (10) blue strips were recovered from a blue school bag, lying in his lap and on opening each strip contai ned baked Charas weighing one

(01) (total 10 Kg) which was taken into possession through recovery memo and 20 grams from each strip of baked Charas were separated and sealed in Parcel No.1 and rest of the recovered Charas were sealed in Parcel No.2.

3. After formal investigation, challan was submitted before the trial Court and charged was framed against the appellant under section 9(c) of the Act to which he pleaded not guilty and claimed trial. In order to prove the alleged recovery , the prosecution examined following witnesses:- PW-1, Khadim Hussain, who is recovery witness in his presence the alleged Charas were recovered and the same was taken into possession through recovery memo (Ex.P/1-A and 1-C).

PW-2, Javed Ahmed, Excise Inspector , who is complainant of the case, he produced the report (Ex. P/2-A).

PW-3 Noor Ahmed, Excise Inspector/Investigation Officer , he produced challan (Ex. P/3-A), FSL report (Ex. P/3-B) and incomplete challan (Ex.P/3-C).

4. On completion of prosecution evidence, the accused was examined under section 342, Cr.P.C., wherein he professed innocence and denied the allegations levelled against him. The appellant did not record his statement on oath nor led any witness in his defence. On conclusion of the trial, the trial Court convicted and sentenced the appellant vide impugned judgment dated 10.04.2019. Hence this appeal.

5. Learned counsel for the appellant contended that the prosecution has failed to prove charge against the appellant beyond reasonable doubt; that there is delay of about six hours for registration of FIR and there is also delay about eleven days for sending of the alleged sample to the Chemical Examiner , therefore, tampering with the same cannot be ruled out, finally he prayed for setting aside the impugned judgment and acquittal of the appellant.

6. On the other hand, the learned APG strongly opposed the appeal and defended the impugned judgment.

7. Arguments advanced by the learned counsel for the appellant as well as learned APG have been heard and perused the available record.

8. It has been noticed that the occurrence took place at 10:00 a.m., (day) on 21.02. 2019 as the complainant lodged a report (Ex.P/2-A) at 4:30 p.m., on 21.02.2019 after unexplained delay of six (06) hours, this A delay raises eyebrows qua veracity of the case and signals towards consultation, concoction, inducement and procurement on the part of prosecution in this regard.

9. We have also noticed that it is the case of the prosecution that samples were transmitted to the office of Forensic Science Laboratory Crimes Branch Balochistan, Quetta, but safe custody and transmission in this regard could not be proved by the prosecution because according to FSL report (Ex.P/3-B) the sample of Charas baked received on 04.03.2019 through Malik Salah-ud-Din, Excise official with delay of about eleven days and such delay has not been explained.

10. As per Rule, 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, this exercise was required to be completed within 72 hours of the recovery , and for this purpose even there is no plausible explanation brought on record by the prosecution as to why such inordinate delay was caused in the completion of this exercise by the Investigating Officer. This is fatal to the prosecution case. In this regard, reference can be made to the case of Muhammad Aslam v. The State reported in 2011 SCMR 820 and Shamsullah v. The State 2013 MLD 1527 .

11. The prosecution has also failed to examine the Excise Officer, who had taken the sample of the Chemical Examiner , so that he could have been cross-examined on the point as to in whose custody the sealed parcel of the samples of Charas were lying about eleven days which makes the case of prosecution doubtful and any doubt if arises in the links of the chain of prosecution story , the benefit of the same will go to the accused. In this regard reliance is placed in the case of Mst. Razia Sultana and others v . The State 2019 SCMR 1300 .

12. In view of the above, we have reached at the conclusion that the prosecution in the instant case could not prove prompt registration of the FIR, and safe custody and transmission of the representative samples to Government Analyst also could not be proved. Thus, the prosecution has failed to prove its case against the appellant. In this scenario, there is no need to discuss defence version.

Resultantly , instant appeal is allowed, conviction and sentence recorded against the appellant through the impugned judgment 10.04.2019 passed in case arising out of FIR No.01/CH/2019 dated 21.02.2019 registered under section 9(c) of the Control of Narcotic Substances Act, 1997 at Excise Police Station Sibi is hereby set aside.

The appellant is acquitted of the charge, he shall be released forthwith, if not required in any other case.