MIRAJ Versus STATE

This appeal is directed against the judgment, dated 8-7-1993 passed by the learned Sessions Judge, Swabi, whereby appellant Mst. Miraj wife of Gulzar was convicted for offence under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to suffer R.I. for three years' fine of Rs.3,000, or in default to suffer R.I. for three months more on each count, with benefit of section 382-B, Cr.P.C. Both the sentences were ordered to run concurrently.

2. It is case of the prosecution that on 15-9-1992 Mst. Miraj was found in possession of one kilogram of heroin by Liaqat Ali, A.S.I. and other police staff of Police Station Topi. The sample was certified .to be heroin by the Chemical Examiner.

3. To support the charge, the prosecution examined Noor Muhammad Khan, S.H.O. formal witness, P.W.2 Rasheed Ahmad, EA.C. who had recorded the confessional statement of the appellant on 17-9-1992, P.W.3 Liaqat Ali, the star witness. P.W.4 Noor Muhammad Khan, S.H.O. formal witness and P.W.5 Sherin, Constable, the recovery witness. In her statement recorded under section 342, Cr.P C. the appellant denied the allegations and canvassed innocence. However, the learned Sessions Judge found her guilty for the offence under Articles 3 and 4 and convicted her for the same as mentioned hereinabove. Hence this appeal.

4. Mr. Arshad Me hmood Lodhi, Advocate, appeared for the appellant and Mr. Roshan Khan, Advocate, for the State.

5. The learned counsel for the appellant has taken the following grounds in support of his appeal:--

(i) No one from public was associated by the police during the investigation.

(ii) There are material contradictions in evidence of P.Ws. Liaqat All and Sherin.

(iii) Formalities were not observed by the learned Magistrate, hence the confessional statement is defective and cannot be relied upon.

(iv) There is no evidence on the record to show that the sample and the contraband material were kept in safe custody and that the sample was sent to the Chemical Examiner in safe custody.

(v) That the sample was taken on 15-9-1992 but it was sent to the Chemical Examiner on 8-10-1992.

Reliance was placed on a case reported in 1993 P Cr. L J 1946 regarding the delay in sending of the sample to the Chemical Examiner.

6. The learned State counsel while controverting the contentions raised by the learned counsel for the appellant submitted that:--

(i) Through witnesses Liaqat Ali and Sherin, the recovery was proved against the appellant.

(ii) Witnesses from public do not associate with the police in such cases.

(iii) Confessional statement was recorded immediately on the next day.

7. The learned counsel for the appellant has taken me through the evidence of witness Liaqat Ali. Nowhere in his statement the witness has said that the contraband material or the sample therefrom was kept in safe custody and was sent for examination to the Chemical Examiner through any witness. It was the bounden duty of the prosecution to have brought such evidence before the trial Court; in absence thereof it cannot be said whether the sample sent to the Chemical Exhminer was not tampered with at any stage. This lacuna further gets support from the fact that the sample was sent after about three weeks.

8. In such view of the fact, I am not inclined to give weight to the Chemical Examiner's report. Hence without touching the merits and demerits of the case, I extend benefit of doubt in favour of the appellant and set aside her conviction and sentence recorded by the learned Sessions Judge, Swabi on 8-7-1993. She stands acquitted of the charge. She was released on bail by this Court. She is discharged from the obligation of bail bonds.

N.H.Q./859/FSC Appeal accepted.