NOOR HUSSAIN vs THE STATE

' By this appeal, appellant Noor Hussain son of Allah Ditta has challenged the judgment dated 3-4- 1995 by Judicial Magistrate, Section 30, Cr.P.C., Sahiwal, whereby the appellant was convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced to R.I. For five years, twenty stripes and a fine of Rs,25,000 and in default in the payment of fine to suffer S.I. For six months. I have heard the arguments of Mr. All Azhar Khan, learned counsel for the appellant, and Mr. Waheed Anwar, learned counsel for the State. With the assistance of the learned counsel, I have gone through the record.

2. According to the case of the prosecution, at about 2-30 a.m. At night on 19-8-1991 complainant A.S.I. Muhammad Hussain alongwith a police party was present at Adda Gamber for patrol duty when the appellant, who was standing there, tried to escape, but was apprehended and, on his search, from his inside pocket one packet containing 70 grams of heroin was recovered. According to the complainant, out of the recovered heroin, ten grams were separated as sample for chemical analysis. The appellant was arrested and after completion of the investigation he was charged under Articles 3 and 4 of the Prohibition Order, 1979. During the trial, the prosecution examined four witnesses including complainant Muhammad Hussain as P.W.3. It may be observed that the complainant, the Officer who had recovered the heroin, had also become the Investigating Officer in the case.

3. In support of the present appeal, it has been inter alia contended by Mr. All Azhar Khan, learned counsel for the appellant, that there is violation of the provisions containing in section 103, Cr.P.C.

Inasmuch as despite availability of a large number of persons present at the Add; only police officials were associated in the recovery proceedings. It was also contended that there were contradictions in the evidence of the recovery witnesses. It was then argued that there is a major lacuna in the prosecution version as, according to the F.I.R. And all the police witnesses induding P.W.3 complainant/Investigating Officer, A.S.I. Muhammad Hussain, out of the 70 grams of heroin, ten grams were separated and the sealed sample containing ten grams was sent to the Chemical Examiner for report, but, according to Exh.P.D., the Chemical Examiner's report, the packet containing sample contained only one gram of heroin. The prosecution witnesses were cross- examined on behalf of the defence and all of them had reiterated that the sealed sample sent to the Chemical Examiner contained ten grams of heroin and not one gram and a sample of one gram could not be the sample from the recovered heroin.

' Learned counsel for the State, Mr. Waheed Anwar, submitted that the consecution had established its case through the police witnesses and as all the witnesses had stated that the sample sent to the Chemical Examiner contained ten grams of powder, the words "one gin" in the Chemical Examiner's report while giving the description of the sample is a clerical mistake on the part of the office of the Chemical Examiner and the trial Court did not commit any error in law by accepting the Chemical Examiner's report despite this discrepancy stating that this was a clerical mistake.

4. In this case, there is violation of the mandatory provisions of section 103 read with section 165(4), Cr.P.C. On merits also, a serious doubt has been created as to whether the sample sent to the Chemical Examiner was, in fact, the sample taken from the recovered powder. As noted, in the F.I.R.

As well as in the evidence of all the prosecution witnesses, it is stated that the packet containing the sample weighed ten grams, whereas, according to the Chemical Examiner's report (Exh.P.D.) the net weight of the sample received was one gram. This discrepancy cannot be brushed aside on the ground that this was a clerical mistake. If there was a mistake, the prosecution should have ensured that evidence was brought on record to clarify the discrepancy.

A doubt having been created as to whether the sample received in the office of the Chemical Examiner was, in fact, the sample taken from the recovered heroin, conviction of the appellant on the basis of Chemical Examiner's report (Exh.P.D.) cannot be sustained.

' In this context reference may be made to a recent decision of the Supreme Court in the case of Tariq Pervez v. The State 1995 SCM R 1345. The facts of that case were that the accused had been apprehended while selling one gram of heroin to a fake customer. The police raiding party then recovered 1099 grams of heroin from the accused. According to the prosecution case, two separate parcels containing one gram heroin which was sold by the accused to the fake customer and one gram heroin from bulk heroin recovered from the accused had been prepared by the police, but only one parcel was sent to the Chemical Examiner for examination and report. The Supreme Court held that in the circumstances, it could not be said with judicial certainty that the parcel containing sample heroin had been sent to the Chemical Examiner and the accused was acquitted by giving benefit of doubt. It was observed by the Supreme Court as follows:- "The concept of benefit of doubt to an accused person is deep rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a C circumstance which creates reasonable doubt in prudent mind about the guilt of the accused, then accused will be entitled to the benefit not as a matter of grace and concession, but as a matter of right."

5. In my view, the prosecution has failed to establish its case beyond reasonable doubt against the appellant. As a result this appeal is allowed, the impugned judgment is set aside and the appellant acquitted of the charge. The appellant is on bail from this Court. His bail bonds are discharged.