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Criminal Revision No.122 of 1981, decided on 13th February, 1984.

---S.43 (3)-- Evidence Act (1 of 1872), S.45-- Criminal Procedure Code (V of 1898), S.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].

P L D 1981 Kar. 195 rel.

Abbas Farooqi for the State.

Date of hearing: 13th February, 1983.

The above appeal was admitted on the basis of the decision of this court reported in P L D 1981 Kar. 195 has admittedly no expert witness was examined by the prosecution, before the learned trial Court to prove, that the stuff recovered from the appellant was in fact Charas.

The learned Advocate appearing for-the State very rightly conceded, that in the present case also prosecution did not examine any expert, but simply relied upon the statement of Excise Inspector in order to prove, that the stuff recovered from the appellant was Charas and as such he does not support both the impugned judgments of the learned trial Court, as well as appellate Court. The learned Advocate for the State submitted, that there is a material irregularity and there is no legal evidence brought on record to establish, that the stuff recovered from the appellant was Charas in fact.

I have carefully considered the above submissions made by the learned Advocate for the State and have gone through both the impugned judgments and R 8 P of the learned trial Court.

It is very clear from the records before me, that the prosecution did not examine any expert witness to prove that the stuff recovered from the appellant was in fact Charas and as such the case reported in P L D 1981 Kar. 195 on the basis of which the above appeal was admitted for regular hearing by me fully supports the contention of the appellant, that in the absence of such expert's evidence, his conviction cannot A legally be maintained. I have gone through the judgment of my brother Sajjad Ali Shah, J, reported in P L D 1981 Kar. 195 and I am in respectful agreement for the reasons given in the said judgment with him, that non-examination of the expert witness was fatal to the prosecution case and consequently both the impugned judgments cannot legally be sustained.

Therefore I allow the above a revision petition and set aside judgment dated 25th July, 1981 of the Addl. City Magistrate S.I.T.E., Hyderabad as well as judgment dated 28th November, 1981 passed in Crl. Appeal No.21 /81 by learned Ist Addl. Sessions Judge, Hyderabad by which he upheld the judgment dated 25th July, 1961 and acquit the appellant, by giving him benefit of doubt and discharge the bail bonds executed by the appellant in the above petition.

M. Y. H . Petition accepted.

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