MUHAMMAD SIDDIQUE alias BHERIA Versus State

SH. AZMAT SAEED, J.- - This order shall dispose of Criminal Appeal No.1709 of 2004, having arisen from the judgment, dated 14-10-2004, whereby the learned Additional Sessions Judge, Chunian convicted and sentenced the appellant Muhammad Siddique to undergo three years R.I. with fine of Rs.10,000 or in default, to further suffer two months S.I. with benefit of section 382-B, Cr.P.C., in case F.I.R. No.668 dated 30-12-2003 registered with Police Station Chunian for offence under section 9(c) of the Control of Narcotic Substances Act, 1997. The co-accused, namely Muhammad Shafiq was acquitted by extending him the benefit of doubt by the learned trial Judge.

Perusal of the complaint Exh.P.A. which formed the basis for formal F.I.R., reveals that during the course of general round up on 30-12-2003 , the police had received the secret information that one person was selling Charas near the bridge. On raid, the appellant was allegedly apprehended and on his search, 1105 grams Charas was recovered from him, out of which, 10 grams was separated for chemical analysis. Accordingly, recovery memo. Exh.P.C. was prepared which was attested by Hassan Mehdi S.-I. P.W.5 and Shaukat Ali, A.S.-I. P.W.6. It may be stated that in the course of interrogation it further transpired that the appellant had purchased the Charas from Shafiq alias Shiqa Sonara, since acquitted by the trial Court. After usual investigation, the challan was submitted against both the accused putting their names in Column No.3 of the report under section 173, Cr.P.C. Charge was framed by the trial Court against the appellant and the above named co-accused on 6-4-2004 , which was denied by them.

To prove the charge against the appellant, the prosecution examined six witnesses and relied upon the report of the Chemical Examiner.

In his statement recorded under section 342, Cr.P.C. the appellant stated that he was booked in this false case by the police to show their efficiency and to make up the deficiency in narcotics cases to please their superiors. He further stated that instead of throwing the money in the canal, he could have thrown the Charas into the canal and that if at all he wanted to sell the Charas, in this context, he could have preferred his own house or any other secret place instead of an open place like Rohi Nala.

5. We have heard the learned counsel for the appellant and the State and have perused the judgment impugned and the evidence on record.

6. It was contended that the manner in which the appellant was alleged to have been apprehended in pursuance of raid does not appear to be above board, inasmuch as, the appellant instead of money could have easily thrown the Charas into the canal. The learned counsel has strenuously argued that original report of the Chemical Examiner has not been tendered in evidence by the prosecution and no sanctity could be attached to the copy thereof, and therefore, such dubious piece of corroboration does not furnish any basis for the conviction and sentences of the appellant.

7. The learned counsel for the State does not controvert this aspect of the matter and is unable to supplement the lacuna.

8. In order to prove the guilt of the appellant under section 9(c), C.N.S.A., it was the bounden duty of the prosecution to have proved in evidence that the substance recovered from him was in fact Charas. In this context, the prosecution had relied upon the report of the Chemical Examiner. Perusal of the record discloses that instead of original, only a photocopy of the said report has been produced by the prosecution, which in our view does not in any manner cater for the requirement of section 510, Cr.P.C. In such eventuality, no steps appear to have been taken to prove the report of the Chemical Examiner by the production of the Chemical Examiner as a witness which is conspicuous by its absence. In the circumstances, copy of the Chemical Examiner s report cannot furnish the basis for conviction in the case. In this view of the matter, we are fortified by the judgments reported as Zahoorul Islam and 2 others v. The State 1995 PCr.LJ 484 and Gul v. State PLD 1977 Kar. 1019. In our view this salient feature of the instant case calls for interference. Consequently, by accepting this appeal, we set aside the conviction and sentences of the appellant acquit him of the charge and direct that he shall be released forthwith if not required to be detained in any other case.

H.B.T./M-870/L Appeal accepted.