FARMAN ALI Versus STATE
1. Appellant has impugned judgment delivered on 15-12-1996 by the Court of IIIrd Additional Sessions Judge, Shikarpur whereby he has been convicted under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 and has been sentenced to R.I. for 10 years with whipping of 15 stripes and fine of Rs. 10,000 and in default of payment of fine he shall further undergo to suffer R.I. for one year. Benefit of section 382-B, Cr.P.C. is also extended to the accused.
2. On the basis of spy information. Sikandar Ali Pathan (P. W. 1) Assistant Excise and Taxation Officer, 'Shikarpur accompanied by his staff and two mushirs Sher Muhammad (P.W.2) and Abdul Majid made a nakabandi near grid station at Shikarpur. A truck No. RIK-993 coming from the Kandkot side was stopped. In the said truck one person was on the steering wheel who disclosed his name to be- Ali Rehman and another who was sitting near the driving seat disclosed his name to be Farman Ali who is the present appellant. From the search of the cabin of the truck a container was found under the Tool Box with tinned chader. On the opening of the said chader 28 bags of opium packed in plastic and white cloth were found. The opium was weighed on the spot and proved to be 102 kilograms. It was sealed in two separate fertilizer bags. Both the persons in the truck were arrested, challaned and charged under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 hereinafter to be referred to as the said Order. The leader of the raiding party namely Sikandar Ali Pathan (P.W.1) lodged an F. I. R. at 9-7-1989 at 6 p.m. i.e. 3 hours after the occurrence at Excise Police Station, Shikarpur. The appellant did not plead guilty.
3. To prove its case prosecution has examined two witnesses Sikandar Ali Pathan (P.W.1), A E T O who is both the complainant as well as investigation Officer. He has proved his raid on the basis of a spy information on 9-7-1989 on truck No. RIK 993 and the recovery of the contraband item. Sher Muhammad (P.W.2), a constable of Excise Police proved his presence as a member of the raiding party at the time of occurrence. He has also proved the recovery of the contraband item. In his defence appellant has taken a plea that he was a labour and Sikander Ali Pathan (P.W.1), the complainant and Investigation Officer, had asked him to render free labour for him but he had refused and therefore, he was falsely involved by the complainant. The appellant declined to be examined on oath and did not produce any evidence in his defence.
4. I have heard the leaned counsel for the appellant as well as State. The learned counsel for the appellant has contended that the charge and the plea do not contain either the signature or the thumb-mark of the appellant which is fatal to the case of the prosecution; that the case property was not produced in the Trial Court and was misappropriated by the A.E.T.O. Shikarpur against whom no F. I. R. was lodged that the case property or its samples were not sent for the chemical analysis; that certain specific questions under section 342, Cr.P.C. were in fact not asked from the appellant; that no independent witness was associated by the Investigation Officer and this is the violation of section 103, Cr.P.C.; that Investigation Officer and complainant "and mushir of the recovery is the same person which is in clear violation of the established principle and mockery of law; that there is a violation of law as laid down in Articles 59 to 65 the Qanun-e-Shahadat Order, 1984. The learned counsel for the appellant has also relied on law as laid in 1973 P Cr. L J 395, 1985 P Cr. L J 286, 1984 P Cr. L J 3096, 1989 P. Cr. L J 1738, 1997 P Cr. L J 225, 1997 P Cr. L J 694, 1989 P Cr. L J 631, 1985 P Cr. L J 8, 1992 P Cr. L J 1985, PLD 1981 Kar. 195, 1984 P Cr. L J 2342, 1976 P Cr. L J 643; 1977 P Cr. L J 355, NLR 1994 Cr. L J 503 PLD 1993 Lahore 497, 1989 P. Cr. L. J. 601, 1987 M L D 1918, 1993 M L D 551, 1990 P. Cr. L. J. 331, 1991 P. Cr. L. J. 1091, 1996 P Cr. L. J. 462, NLR 1994 226; P L J 1997 Karachi 277 and PLD 1970 SC 10. The Learned counsel for the State (Mr. Mushtaq) A. A. G. has not supported the impugned judgment and has conceded that the case is a fit one for acquittal.
5. There is a force in the learned counsel for appellant's contention that neither the case property was produced in the Trial Court nor its samples were sent to the chemical examiner for analysis. Sikandar Ali Pathan, Investigation Officer, has deposed during examination-in-chief as under:
2. "The opium deposited by me in the office of S.D.M. Shikarpur at the time when challan was submitted on 11-7-1989. I heard that subsequently the opium was misplaced as it was obtained by one Tufail Ahmed. AETO from the office of S.D. M. Shikarpur for producing the same in Court and enquiry against him is pending about the missing of opium. Aforesaid Tufail Ahmed had now died. I had not sent the sample from above opium to chemical examiner because of fact that I have got training of Advance course of Narcotics and I have also passed the examination of Department with regard of examination of opium and other narcotics, hence I examined it and found that it was opium, thus, the samples was not sent by me as I am myself expert in examination of Narcotics. The departmental examination of Narcotic was passed in 1984. The amount Rs. 400 and 100 which were recovered from the above accused was deposited by me at the time of submission of challan, in the Court of S.D.M. which is also missing alongwith opium."
3. Exh. 10 is an statement of the same Investigation Officer which reads as under:
4. "I have the honour to submit that I am investigating Officer of the case hearing Cr. No. 21/89 Ex. Police Town Shikarpur. I was directed to produce chemical report in respect of opium recovered in the above crime. In this regard I have the honour to submit that it was general practice that Charas and opium was not being sent for chemical examiner recovered by Ex-Police at the relevant time as we were also given special training to identify the Charas and Opium. But subsequently this practice by the Higher authorities. In this case, the opium was not sent for chemical examiner hence there is no chemical report available on the record of this case, which is even visible from the mashirnama of recovery. This is for the kind information of Court."
5. From this situation it is clear that the recovered narcotic was neither produced in the Court nor it was sent for chemical analysis. Not only this but even the recovered amount of Rs. 400 and 100 was also misappropriated alongwith the non-production of the case property in the Court. The learned counsel has correctly relied upon the following principles enunciated by the superior Courts of Pakistan. In 1977 P Cr. L J 694 at placentium D following principle has been enunciated:
6. "As held in a number of cases, some of which are cited by the learned counsel, no conviction can be recorded against and accused when the property which is subject-matter of the case is not produced before the Court. The learned D.A.G. stated that in very near future the property of the case would be available before the Court but he was not able to State as to within how much time such could not possible."
7. This Single Bench judgment of Karachi jurisdiction has a persuasive value for me specifically when following ruling inter alia, are referred to. This Court's judgment cited as 1997 P Cr. L J 225 at placentium B reads:
8. "This statement leaves no doubt that the seized material was not produced in the Court: If it is believed that some of the bags were not produced as presumed by the learned Trial Court even there it was necessary to mention the number of bags and their weights separately so that the defence could ask the witness where the other bags had gone. If certain bags were missing, then it was necessary for the Court to inform the higher authorities about this fact so that the missing bags could not be used by the Police against innocent persons. I am, therefore, unable to embrace the observations made by the Trial Court regarding recovery of the huge quantity of Charas. In such circumstances the recovery of Charas would be treated to have been proved to the extent of that quantity which was sent to the Chemical Examiner i.e. 5 Kgs. only. Similarly giving up second Mashir of recovery by the prosecution can be ignored if the said Mashir had been a public Mashir and was not traceable. But when both Mashirs are from the same police party and are Police Official too then giving up the second Mashir was not proper."
9. 1989 P Cr. L J 631 at head note (c) reads:
10. "Customs Act (IV of 1969)---
11. --Ss. 156(I)(8) & 171. Case property not exhibited in Court but was destroyed by Customs Authorities. Conviction recorded against accused was set aside."
12. 1985 P Cr. L J 286 reads at placentium A as under:
13. "In any case the evidence of this Mashir is not .of much use to the prosecution particularly when the case property has not been produced and only three cartons have been produced from 92 or 90 cartons alleged to have been seized. On this ground also the prosecution has failed to prove its case."
14. 1989 P. Cr. L. J. 1738 reads at page 1739 as under:
15. "The prosecution was duty bound to produce before the Court the crime property and made it as an exhibit or article so as to afford assurance to the Court that in fact the crime property said to have been recovered from the possession of the appellant was in fact so recovered. In the absence of dong so the conviction of the appellant is obviously vitiated "
16. 1986 P Cr. L J 2173(1) reads:
17. " S .426. Penal Code (XLV of 1860). section 457. Lurking house trespass. Mare of omplainant allegedly stolen. No evidence on record showing house trespass. One of witnesses stating nothing about stolen mare. Mare not produced in Court during trial. Sentence of accused was suspended during pendency of appeal in circumstances. "
18. 1984 P Cr. L J 3096 (2) in its para. No. 4 reads:
19. "There is till another aspect of this case which is to the effect that the case property in this case i.e. 20 guns and cartridges were never recovered by the Investigating Agency and never made case property. In these circumstances these guns and cartridges were not produced in the Court. Mr. Suleman Kassam- has stated that adjudication proceedings were filed in respect of the same allegations but they were dropped for the reason that the said guns and cartridges could not be seized by the Investigating Agency hence the question of confiscation does not arise."
20. 1983 P Cr. L J 1869 at head note (b) reads:
21. "S.103. Stolen property not produced when recovery witness deposing in Court. Recovery rules out of consideration. Penal Code (XLV of 1860, S. 411. "
22. 1982 P Cr. L J 1067 read on the same subject as under:
23. "S.156 (1) (8) read with section 178. Smuggling. Recovery of smuggled goods. Case property neither produced nor identified by witnesses in presence of accused. Conviction and sentence set aside and case remanded for retrial. "
24. 1973 P Cr L J 395 at head note (a) reads
25. "Criminal trial. Prosecution, duty of. Prosecution bound to produce crime property before Court and mark it as an exhibit. Failure to do so vitiates trial. Penal Code (XLV of 1960). Section 411. Prosecution is duty bound to produce before the Court the crime property and mark it as an exhibit or article so as to afford assurance to the Court that in fact the crime property, said to have been recovered from the possession of the appellant, was in fact so recovered. In the absence of doing so the conviction of the appellant is obviously vitiated."
26. Now comes the turn of another limb of this contention. Admittedly, neither the case property nor any samples thereof were sent to the chemist nor there is any evidence of authorised expert on the record. In 1977 P Cr. L J 355 the ruling in this context is quoted verbatim:
27. "S. 61. Conviction property of Contention that conviction could not be lawfully based on order evidence of witnesses without getting stuff allegedly lahan examined chemically nor drums containing lahan could be exhibited without producing before Trial Court. Contention, held, not devoid of force. Infirmities, held further, not curable under law. Conviction and sentence, set aside, in circumstances. "
28. 1985 P Cr .L. J 8 reads at head-note (i) as under
29. 'Ss. 3 & 4. Intoxicant. Possession and manufacturing of Offence of Evidence appreciation of Acquittal, basis for Police not obtaining report of chemical examiner and not sending recovered liquor and lahan for scientific chemical analysis. Excise Inspector being not expert witness, his statement carrying no weight. Held: In absence of chemical analysis of recovered liquor and lahan, what was recovered from accuse not to be safely held to be actually liquor and lahan as defined by statute. Conviction and sentence set aside."
30. 1981 Kar 195 reads at placentium B:
31. "The learned counsel has cited before me 1976 P Cr. L. J. 643 in which it is clearly held that as per requirements of section 45 of Evidence Act such certification that the material recovered is contraband must come from expert witness and the conviction recorded in a case in which reliance was placed on the statement of Officer of Customs and Excise proving the recovery of charas was set aside. In the instant case also no reliance can be placed on the certificate of the Excise Officer that the material recovered from the Possession of the accused was charas. "
32. 1984 P. Cr. L J 2342 reads as under:
33. "S.43 (3). Evidence Act (1 of 1872), section 45. Criminal Procedure Code (V of 1898). Section 439. Expert evidence not examined to know whether material recovered from accused was really Charas. Omission fatal to prosecution case. Accused given benefit of doubt and acquitted. (Benefit of doubt). "
34. 1976 P Cr. L J 643 at head-note (b) reads:
35. "S.45. Expert witness. Conviction based on statements of Customs and Excise officials proving recovery of alleged charas from accused persons. No expert witness examined to prove substance of recovered articles. Conviction and sentence set aside, in circumstances. Punjab Excise Act (1 of 1914), S.61(1)."
36. 1992 P. Cr. L J 1985 at head-note (b) reads
37. "(b) Prohibition (Enforcement of Hadd) Order (4 of 1979), Art. 4. Appreciation of evidence. Investigating Officer did not send the recovered articles to the Chemical Examiner, but sent the same to an Excise Sub-Inspector who had issued a simple certificate in his capacity as an Excise Sub-Inspector which by no stretch of imagination could be called an opinion of the Expert. There was, thus, no evidence that articles recovered from the accused were intoxicants. Conviction and sentence of accused were set aside in circumstances. Retrial of accused, however, was not ordered as he had been facing the rigours of the proceedings for the last about ten years. "
38. While considering these rulings and scores of others, it appears to be a stare decisis by now that the conviction in such cases cannot be sustained in which neither the recovered property was produced in the Court, nor any opinion of expert was obtained to prove the nature and nomenclature of the recovered intoxicant. Apart from others only, on this one single contention divided into two limbs, the impugned judgment was set aside and the appellant was acquitted from the charges, conviction/sentence and appeal was allowed by my short order to which State also conceded. These are the reasons for the said order.
39. H.B.T/44/FSC Appeal allowed.