Mst. FATIMA vs THE STATE

' SHAIKH ABDUR RAZZAQ, J.--- Briefly stated the facts are that on 20-8-1999, Nasrullah, Inspector/S.H.O. Alotigwith other police officials under the supervision of Nazir Ahmad Khan, Magistrate 1st Class, Khanpur, raided the house of Muhammad Ajmal, husband of present appellant and found the appellant to be present in the upper storey of her house. As a result of said raid, she led to the recovery of one kilogram of opium, out of which 10 grams was separated for sending to the Chemical Examiner and the remaining was made into sealed parcel. Accordingly complaint Exh.P.E. Was lodged and sent to the police station for fortnal registration of F.I.R. After investigation the case was sent up for trial.

2. The charge under section 9 of the Control of Narcotic Substances Act, 1997, was framed against the appellant, to which, she pleaded not guilty and claimed trial.

3. To bring home the guilt of the accused-appellant the prosecution examined Subah Sadiq, Head Constable P.W.1, Muhammad Tufail P.W.2 Nazir Ahmad E.A.C./M.I.C. Khanpur P.W.3, Nazar Hussain, A.S.-I. P.W.4 and Muhammad Ilyas Constable P.W.S. Thereafter, the D.D.A. Produced reports of Chemical Examiner Exhs.P.H., P.J. And P.K. And then closed the prosecution evidence.

4. When examined under section 342, Cr.P.C. The accused-appellant denied the prosecution version and pleaded that she has been implicated in this case falsely. She produced Iqbal Hussain D.W.1 and Amir Murtaza D.W.2 in her defence. She also tendered certain documents and vide her statement, dated 8-11-2000 closed her defence evidence.

5. After going through the evidence of the parties the trial Court convicted the appellant under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to R.I. For five years with a fine of Rs,50,000 or in default thereof to undergo R.I. For one year. The benefit of section 382-B, Cr.P.C. Was, however, extended to the appellant.

6. The appellant has felt aggrieved and filed the instant appeal.

7. We have heard the learned counsel for the appellant as well as learned Special Prosecutor for A.N.F.

8. The only point which has been highlighted by the learned counsel for the appellant is that the conviction has been based on the report of Chemical Examiner, dated 25-11-1999. He submits that at the time of raid a parcel containing 10 grams of opium was prepared which is Exh.P.C. And was witnessed by marginal witnesses including Nazir Ahmad Khan, E.A.C., Khanpur, that the said parcel was sent to Chemical Examiner for his report which is to the effect that the result of said parcel cannot be given and it was required that a fresh parcel be sent. A photostat copy of the said report, dated 20-101999 is available on record. Later on, a new parcel was prepared and sent to the Office of Chemical Examiner on 16-11-1999 and it is on the basis of this second parcel that report Exh.P.H., dated 25-11-1999 has been obtained which is in positive. He contended that as there is no evidence available on record to show as to when and in whose presence the second parcel was prepared, so no reliance can be placed on report Exh.P.H., dated 25-11-1999. He thus contended that if the instant report Exh.P.H. Is taken out of consideration, there remains no evidence on the record to connect the appellant with the commission of this offence.

9. Conversely, it is admitted by the learned Special Prosecutor that as per record there is no evidence available to prove as to how and in whose presence the second parcel was prepared. He further submitted that initially a parcel containing 10 grams of opium was prepared on 20-8-1999 and the same was sent to the office of Chemical Examiner for report which is not in positive form as is evident from the report, dated 20-10-1999.

10. ince there is no evidence available on record as to who has prepared the second parcel, on the basis of which report Exh.P.H., dated 25-11-1999 has been secured, so, the report dated 25-11-1999 cannot be made a base for passing an order of conviction of the accused-appellant. If the report of the Chemical Examiner Exh.P.H., dated 25-11-1999 is taken out of consideration, there remains no evidence to connect the appellant with the commission of offence charged against her.

11. In view of the facts narrated above, we are convinced that the prosecution has failed to bring home guilt to the accused-appellant beyond reasonable doubt. Accordingly, we accept this appeal, set aside the impugned judgment and acquit the appellant. She shall be released forthwith if not required in any other criminal case.