RAHMAT HUSSAIN JAFFERI, J.--The present appeal is directed against the judgment dated 31-10- 2002, passed by Special Court (Control of Narcotic Substances), Karachi, Division, in Special Case No,111 of 2000 (State v. Muhammad Sher), arising out of F.I.R. No,81 of 2000 of Police Station Al-Falah, Karachi. Under the impugned judgment, the learned Judge convicted the appellant under section 9(c) of Control of Narcotic Substances Act, 1997 (hereinafter referred to as the "Act, 1997") and sentenced him to suffer R.I. For twelve years and fine of Rs,50,000 or in default thereof to suffer R.I.
For six months more with benefit of section 382-B, Cr.P.C.
2. The facts giving rise to the present appeal are that on 30-6-2000, the complainant A.S.-I. Zulfiqar Ahmed Sial alongwith his subordinate staff left the C.I.A. Centre for the purpose of patrolling under the directions of his superior. They reached the bus stop of Azeempura, where complainant received spy information that a person was selling Charas near Sugarcane Crushing Machine. The complainant took a private Mashir Sabir Khan and reached at the pointed place at about 11-50 p.m. The complainant saw a person standing having a bag in his hand. The said person seeing the police party started running but he was apprehended. On enquiry, that person disclosed his name as Muhammad Sher, the present appellant. The complainant took the possession of the bag. He opened the bag and found ten slabs of Charas, weighing one kilogram each and a small piece of Charas, weighing 200 grams. From the personal search of the appellant, cash of Rs,100 was secured. The ten slabs of Charas and small piece of Charas were sealed separately. The appellant was arrested and such Mashirnama was prepared in presence of Mashirs Sabir Khan and P.C.
Ashiq Hussain. The appellant and the property were brought to the C.I.A. Centre where the A.S.-I.
Prepared a statement, which was sent to Al-Falah police Station, Karachi, for registration of the case. S.I.P. Muhammad Suhail, who sent the small packet, weighing 200 grams of Charas, to chemical analyser for examination and report, investigated the case. The report was in positive.
After completing the investigation, the appellant was challaned in the Court of law.
3. On 27-4-2001, a charge under section 9(c) of Act, 1997, was framed against the appellant but he pleaded not guilty. In support of the case, the prosecution examined complainant A.S.-I. Zulfiqar Khan Sial, Mashir P.C. Ashique Hussain and Investigation Officer Muhammad Suhail. The complainant and Mashir gave the same details of incident, as mentioned above. The Investigation Officer gave the details of his investigation and produced the chemical analyser's report.
4. The appellant in his statement recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. In his further statement, he stated that he was waiting for a bus at Azeempura bus Stop where actual culprit ran-away from the police, therefore, he was arrested and the property was foisted upon him. The appellant examined himself on oath, in which he gave the same facts as mentioned above. He did not examine any witness in his defence.
5. After conclusion of the trial, the learned advocate for the appellant moved an application before the trial Court for weighing the property. After hearing the parties, the trial Court allowed the application. The property was weighed in the presence of the parties, which came to be 9.750 kilograms. After considering the material available on the record and hearing the parties' counsel, the learned trial Judge convicted and sentenced the appellant, as mentioned above, under the impugned judgment, hence the present Appeal.
6. We have heard the advocate for the appellant, State Counsel and perused the record of this case very carefully. The learned advocate for the appellant has stated that the prosecution have examined only police officials but did not examine the private Mashir Sabir Khan, as such prosecution case has not been supported or corroborated by independent witnesses; that the statement of the P.Ws. Are contradictory to each other; that the complainant has made false statement before the Court with regard to preparation of Mashirnama and maintaining the entries at the C.I.A. Centre about their departure, therefore, his evidence carries no weight.
7. On the other hand, the learned State Counsel has stated that the case of the prosecution is based upon the evidence of complainant and Mashir; that they have fully supported the prosecution case and implicated the appellant; that it is not necessary to examine all the witnesses therefore the private witness was not examined, that the contradictions in the evidence are minor in nature, which can be ignored and that the recovery of Charas has been proved against the appellant, therefore, he has supported the impugned judgment.
8. We have given due consideration to the arguments and examined the evidence with the help of the learned advocate for the appellant. We found that the case rests upon the evidence of complainant A.S.-I. Zulfiqar Khan Sial and P.C. Ashique Hussain. They both deposed that after receiving spy information they took a private Mashir Sabir Khan and then went to the pointed place where the appellant was arrested. At that time, the appellant was having a bag in his hand. They secured and opened the same in presence of private Mashir Sabir Khan. It contained 10 slabs of Charas, weighing 1 kilogram each and a piece of Charas, weighting 200 grams. The slabs and the small piece of Charas were sealed separately, appellant was arrested and such Mashirnama was prepared.
9. From the above evidence it is clear, that the private Mashir Sabir Khan was with the police party and in his presence the recovery was made. However, it is surprising to note that the prosecution did not examine the private Mashir to support the statement of police officials. We are aware of the fact that the police officials are as good witnesses as any other citizen. But when the case entirely rests upon the evidence of police officers and evidence of private and independent witness is available with the prosecution then in such a situation the prosecution should examine the said private person so as to give full support to the prosecution story in order to eliminate any false implication of the accused. The prosecution did not assign any reason for not examining the private Mashir. In this case, the best piece of evidence was the statement of private Mashir Sabir Khan, but the prosecution have withheld the said piece of evidence for the reasons best known to them. It is well-settled principle of law that if a best piece of evidence is available with the party and the same has been withheld by them then it is fair to presume that the said party has some sinister motive behind it. Furthermore, a presumption under illustration (g) of Article 129 of Qanun- e-Shahadat, 1984, can fairly be drawn that had the private Mashir Sabir Khan been examined in the case he would have not supported the prosecution case. In a similar situation, a detailed discussion has been made by us in a case of Ghous Bakhsh v. State (Criminal Appeal No,211 of 2003), decided on 26-9-2003. After relying upon the decision of Hon'ble Supreme Court of Pakistan in the case of Iltaf Husain v. State 1996 SCM R 167 it was held that non-examination of private Mashir would adversely affect the prosecution story and the testimony of police witnesses. In view of the above decision, no further discussion is required to be made on the above point.
10. Apart from the above decision, the complainant claimed that he had left the C.I.A. Centre after making an entry in the station diary but he did not remember its number. The Investigating Officer has falsified the complainant by stating that he after going through the station diary did not find any entry by which the complainant and his party had left the C.I.A. Centre. The Investigating Officer in respect of preparation of Mashirnama has also falsified that complainant. As according to the complainant he prepared the Mashirnama at the place of incident but the Investigation Officer after going through the said Mashirnama clearly stated that it was in the handwriting of Munshi Iqbal. The Munshi Iqbal was not one of the member of police party when the complainant party allegedly left the C.I.A. Centre. As such, he was not available at the place of incident therefore, it appears that the Mashirnama of the arrest and recovery was not prepared at the place of incident. If these two statements are viewed in the light of non-examination of private Mashir then the possibility of false implication of appellant cannot be ruled out. After considering the material available on the record, we are of the considered view that the prosecution have failed to prove the case against the appellant beyond any reasonable doubt. Therefore, the appellant is entitled for the benefit of doubt.
12. Above are the reasons of our short order dated 18-11-2003, by which we had allowed the appeal.