RAHMAT HUSSAIN JAFFERI, J.-The present appeal is directed against the Judgment, dated 28-2- 2002 passed by the learned 1st. Additional Sessions Judge/Special Judge Control of Narcotic Substances. Thatta, in Case No,169 of 1999 (State v. Sikandar). Under the impugned judgment, the learned Judge convicted the appellant under section 9(b) Control of Narcotic Substances Act, 1997 (in short Act, 1997) and sentenced him to suffer R.I. For 2-1/2 years and fine of Rs,10,000 or in default thereof to suffer S.I. For six (6) months. The trial Court gave benefit of section 382-B, Cr.P.C. To the appellant.
2. The facts giving rise to the present appeal are that on 18-3-1999 complainant Excise Inspector Jamil Ahmed alongwith his subordinate staff was on patrolling duty. At about 6-30 P.M. They intercepted a bus at Begna Mori on Jatoi Road. The complainant entered the bus and found 30 to 35 passengers sitting in it. He found a person in suspicious condition, therefore, inquiries were made from him. On inquiries that person disclosed his name as Sikandar Lathio (the appellant).
From the personal search of the appellant the complainant found a rope tied around his abdomen, which was having a pistol. The same was secured. At the back side of the body of the appellant and in the said rope, pieces of Charas were tied, which were also secured. Three live cartridges and Rs,150 were secured from the pocket of the appellant. The appellant was also having a basket. After opening the basket, it was found having pieces of Charas. The Charas, secured from the possession of the appellant was 250 grams, whereas the Charas found lying in the basket was 1700 grams. Both the properties were sealed separately. The appellant was arrested and such Mashirnama was prepared. The properties were secured in presence of Excise Constable Muhammad Bux and a passenger by the name of Wazir, who was sitting beside the appellant. The police sent only 250 grams of Charas secured form the possession of the appellant to Chemical Analyzer for examination and report, which report is in positive. After completing the investigation, the appellant was challaned in the Court. The appellant was tried for an offence punishable under section 9(c) of the Act, 1997. However, he was convicted under section 9(b) of the Act, 1997 and sentenced, as mentioned above. The appellant was dissatisfied with the said Judgment; therefore, he has preferred the present appeal.
3. We have heard the advocate for the appellant, State Counsel and perused the record of this case very carefully.
4. The learned Advocate for the appellant has stated that private person was available, who was cited as Mashir but has not been examined by the prosecution without assigning any reason, as such, the case of the prosecution has not been proved from the evidence of private and independent person, therefore, it has created a doubt on the prosecution story. On the above proposition he has relied on a case of Ghous Bux v. State reported in PLD 2004 Kar.201 (DB). He has further stated there are material contradictions in the evidence; that there is delay in sending the property to the Chemical Analyzer for which the prosecution have failed to explain any reason. He has emphatically emphasized that the place of incident shown by both the witnesses is different from each other, as such, the case of the prosecution is not free from doubt.
5. The learned State Counsel has stated that the private witness was available who was cited as Mashir but unfortunately he was not examined by the prosecution during the trial, therefore, it has materially effected the prosecution story and the rule laid down in the case relied upon by the advocate for the appellant, is applicable in the circumstances of the present case. He has further stated that the prosecution had tried to explain the delay in sending the property but the required documents were not produced. He has not supported the prosecution case.
6. We have given due consideration to the arguments, gone through the evidence available on the record very carefully and find that the case rests upon the evidence of two witnesses viz. Complainant Excise Inspector Jamil Ahmed and Mashir Excise Constable Muhammad Bux coupled with chemical analyzer report. They gave the same details of the incident as mentioned above. The learned advocate for the appellant emphasized that the place of incident shown by both the witnesses is different. In this connection he has referred to the cross-examination of the witnesses.
According to the complainant, the Began Mori where the bus was intercepted was at a distance of about 1-1/2 miles away from Sujawal, the said distance would be covered within 5 minutes from Sujawal and there were no hotels or shops at the said Mori. Whereas, the Mashir gave a different version by stating that Begna Mori was about 30 to 35 k.m. Away from Sujawal and there were shops and hotels at the said Mori. The appellant challenged the version of the complainant by asking a question that he had not seen the place of incident, to which he replied in negative. From the statement of both the witnesses, it is clear that place of incident is at Begna Mori but the distance between the place of incident and Sujawal given by both the witnesses is different. If the difference would have been one or two or few miles, then it could have been ignored but the difference of the distance of about 30 to 35 miles cannot be easily ignored. Further according to the complainant, the place of incident was situated at an isolated place, where there were no shops or hotels. But according to Mashir it was situated at an inhabited place. This fact has put us on guard to evaluate the evidence very minutely.
7. It is an admitted position that one of the Mashirs of recovery of Charas and arrest of the appellant was P.W. Wazir who was a passenger of the bus and was sitting in the bus by the side of the appellant. But it is surprising to note that the said private and independent witness has not been examined by the prosecution. Keeping in view the above discrepancy of place of incident, the examination of private Mashir in the circumstances of the present case was essential so as to give full support to the prosecution case. It is not the case of the prosecution that the P.W. Wazir was a hostile witness, therefore, he was not examined. In the cases in which the investigation agencies have cited a private person as Mashir of the arrest and recovery of the narcotic substances, then heavy duty lies on the prosecution to examine the said witness; particularly, when the provisions of section 103, Cr.P.C. Have been excluded from applying in the narcotic substance cases by virtue of section 25 of the Act, 1997. In a very special circumstances; such as, when the witness is dead or not traceable or his attendance cannot be procured without an amount of delay or expense or has become incapable of giving evidence then his attendance can be dispensed with; otherwise, there is no reason, why the private and independent witness should not be examined by the prosecution when they themselves associated him in the investigation. At the same time if the prosecution without any sufficient cause did not examine the private witness then a duty also casts upon the Court to examine such witness by exercising powers under Article 161 of Qanun-e-Shahadat Order read with section 540, Cr.P.C. To do complete justice in the matter. Both the prosecution and Court should not conduct themselves in mechanical manner in the trial of the eases. They should actively participate in the proceedings of the case and see that all the material and best pieces of evidence available with the prosecution should be brought on the record so that the case be decided after considering all the relevant evidence, which ensure complete justice and then no body will be prejudiced. If the prosecution without sufficient cause does not examine the private and independent witness then they must face the consequences of non-examining such witness in the case.
8. In this type of cases, if a private person is associated as Mashir in the case then the best piece of evidence would be that of private person. It is settled principle of law that if a best piece of evidence available with a party is withheld then it is presumed that the said party has some sinister motive behind it for withholding the said piece of evidence. In such situation a presumption under illustration (g) to Article 129 of Qanun-e-Shahadat, 1984 can fairly be drawn that had the said piece of evidence been brought on the record, it would have been unfavourable to the said party.
9. In the present case, the best piece of evidence was the evidence of P.W. Wazir, who was private and independent witness. His evidence has been withheld by me prosecution without assigning any cogent reason, therefore, the presumption under illustration (g) of Article 129 Qanun-e- Shahadat Order can be drawn against the prosecution. Non-examination of private witness in the circumstances of the present case is fatal to the prosecution case, therefore, the case of the prosecution has become doubtful. Similar view was expressed by us in the above referred authority, which was delivered after relying upon the case of Iltaf Hussain v. State reported in 1996 SCM R 167, in which it has been observed, at page 170 as under:-- "We have heard the learned counsel for the parties and have read the record. We have serious doubt about the prosecution version and as such, have been persuaded to interfere in the case because there was no credible account of the incident available on record. Muhammad Anwar was cited by the prosecution to establish its case but during trial, after recording evidence of Police officials, in routine, the prosecutor stated that Muhammad Anwar had been won over and as such, he was given up. We do not find any explanation whatsoever for dropping him from the list of witnesses in the given situation. He was, undoubtedly, the most important witness who, according to prosecution,, attested the recovery. A mere declaration of the prosecutor would not be enough to abandon such a witness. He, off the cuff, said that the witness was won over. There is nothing to show that the witness had been won over as he did not appear before the Court. If the witness, after appearance, did not support the prosecution, he could be declared hostile and subjected to cross-examination by the prosecutor to find out the truth. This procedure was not adopted for the reasons best known to the prosecution. The prosecution was under duty to prove its case beyond any shadow of doubt on the basis of best possible evidence. The best evidence, in our view, was not produced by withholding Muhammad Anwar. An adverse inference could, therefore, be drawn that, in case, Muhammad Anwar was produced, he would not have supported the prosecution story under illustration (g) to Article 129 of the Qanun-e-Shahadat, 1984.
10. As regards the delay in sending the property, it is pointed out that the property was secured on 18-3-1999, but it was received by chemical analyzer on 7-4-1999. The complainant stated in his statement that on the next date of recovery, the property was sent to chemical analyzer. The chemical analyzer's report shows that the property was sent to chemical analyzer through a letter, dated 27-3-1999 which was received by him on 7-4-1999. The attention of the witness was drawn towards the chemical analyzer's report about the discrepancy in the dates as deposed by him in his evidence, the date of letter sent by him and the date of the receipt of the property by the chemical analyzer. When he found the above discrepancy, he voluntarily furnished information to the Court that the property sent to the chemical analyzer was returned three times to them with some objections. When he gave the above voluntary statement, the advocate for the appellant inquired from him as to whether he could produce such letters of objections, but he deposed that he had not produced such letters. The above cross-examination was conducted in the presence of the prosecutor. However, he did not take any steps to meet with the said objection.
11. It is also pertinent to point out that in this case 250 grams of Charas were secured from the possession of the appellant and 1700 grams of Charas were secured from the basket, which the appellant was allegedly having in his possession. Two separate packets were sealed at the place of incident but only one packet having 250 grams of Charas was sent to chemical analyzer for examination and report. The second packet containing allegedly 1700 grams of Charas was not sent to chemical analyzer. This shows inefficiency on the part of the Investigating Officer. However, if the prosecutor concerned had considered this aspect minutely and had taken active interest or participation in the trial of the case, then he could have requested the Court for sending the remaining packet containing 1700 grams of Charas to chemical analyzer. However, the prosecutor did not do so. This also shows that gross negligence on the part of the prosecutor in conducting the trial of the case which has ultimately benefited the accused, as the gravity of the offence was changed from section 9(c) to section 9(b) of the Act, 1997.
12. It appears that the prosecutor did not show adequate interest in conducting the case as he did not notice the objections raised by the advocate for the appellant during the cross-examination. It was his duty to pay special attention to the cross-examination conducted to the witnesses. If some objections are raised then it is his duty to take some steps by leading some evidence or producing some documents to overcome the said objections. In some cases it has been observed that when objections are raised with regard to the production of station diary of leaving the police personnel from the police station and the accused challenges the version of the prosecution about the police leaving the police station on the particular date, time and for the specific purpose, even then the prosecutor just keeps quiet but does not take any efforts to produce the required station diary or produce some other evidence to meet with the objections of the defence counsel. The conduct of the prosecutor in such cases is highly deprecated. The prosecutor should not sit idle in the Court and to hear cross-examination in a mechanical manner without taking down objections of the defence counsel and without verifying the matter further to overcome those objections. The prosecutor should take adequate interest in the cases at the time of trial where the entire evidence is recorded. The cases are decided on the said evidence, which ultimately go to the Supreme Court if appeals are preferred. If some flaws and discrepancies are left during that stage then those flaws cannot adequately and properly be filled in at the appellate stage even by invoking the provisions of section 428 of Cr.P.C. It has been found that the prosecutors in a mechanical manner are producing evidence in Court which should be stopped immediately.
13. In this connection the solicitor Branch, Government of Sindh and other concerned departments should take specific note of these discrepancies which ultimately go in favour of the accused and even the real culprits are being benefited and acquitted because of such lapses and due to the inefficiency or inadequate interest from the side of the prosecutors at the time of the trial. The efforts of collecting the evidence at the stage of investigation become fruitless if the prosecutor does not produce the required evidence before the Court, or overcomes the lacuna left by the police during the investigation or meet with the objections raised by the defence counsel. The Courts are required to decide the cases on the evidence produced by the parties. If the evidence required for conviction is not placed before the Court for any reason, then the accused person or persons are required to be acquitted. As such, there should be strong accountability of each prosecutor who conducts the cases. The concerned departments should examine the cases to assess the role of the prosecutors at the time of trial of cases. If any discrepancy is found they shall take adequate action against the concerned prosecutor by initiating departmental and other actions as per law. It is helped that if such actions are taken against the prosecutors, then the working of the prosecution department will be improved and the rate of conviction of real culprits will also be increased which will ultimately improve the law and order situation in the country.
Further the real culprits who are being acquitted, because of such lapses, will be adequately punished.
14. 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 shadow of doubt which has been artificially created by the I.O. And the prosecutor, therefore, the appellant is entitled to the benefit of doubt.
15. Above are the reasons of our short order, dated 28-4-2004 by which we had allowed the appeal.
16. We direct the Registrar of this Court to send the copy of the judgment to Secretary of Law, Justice, Human Rights and Parliamentary Affairs, Islamabad; Secretaries, Law Department, Home Department, Director General ANF, Chairman NAB and other Prosecuting Agencies for information and necessary action.