' RAHMAT HUSSAIN JAFFERI, J.---Brief facts giving rise to the present appeal are that on 24-6-2003, complainant A.S.-I. Muhammad Bux Jatoi along with his subordinate staff reached Ellahi Colony on a spy information where he apprehended the appellant. From his search 12 rods of charas weighing 120 grams were secured from his possession. Out of them, one rod weighing 10 grams was separated as sample for sending it to chemical analyzer for examination and report. The appellant was arrested. Such mashirnama was prepared in presence of witnesses. The accused and the property were brought to the police station where the complainant lodged the report.
2. The police after usual investigation challaned the appellant in the Court. The learned Judge Special Court II (CNS) Karachi tried the appellant and convicted his for offence punishable under section 9(b), Control of Narcotic Substances, Act, 1997 and sentenced him to suffer R.I. For two years and three months and fine of Rs,15,000 or in default thereof to suffer R.I. For two months with benefit of section 382-B, Cr.P.C.
3. We have heard the Advocate for the appellant, A.A.-G. For the State and perused the record of this case very carefully.
4. The learned Advocate for the appellant has stated that the property was not sealed at the spot as none of the witnesses deposed such fact and that there were material contradictions in the evidence of complainant Muhammad Bux and mashir Muhammad Aslam as the complainant has stated that two rods were taken out as sample whereas mashir has deposed that only one rod was separated from the property, therefore, the case of the prosecution is highly doubtful.
5. Conversely the learned A.A.-G. Has stated that the mashirmana Exh.P/2 of recovery shows that the property was sealed at the spot; that the witnesses had not mentioned in their deposition, that the property was sealed at the spot but the said discrepancy can be treated as omission, which has not affected the prosecution case. As regards the contradiction, he has admitted that the witnesses had deposed so as mentioned above but the said contradiction is minor in nature because the property received by the chemical analyzer shows that he received the sealed parcel containing one rod and that the entire charas of 10 grams was consumed in the process of examination. He has supported the impugned judgment.
6. We have given due consideration to the arguments, gone through the material available on the record and found that the prosecution examined two witnesses Muhammad Bux complainant and mashir Aslam. They gave the same details of the incident as mentioned above, except the above- mentioned discrepancy. It is an admitted position that both the witnesses did not state in their statements on oath that the sample drawn from the property was sealed at the spot but the learned A.A.-G. Has taken the refuge in the mashirnama Exh.P/2 in which it has been mentioned that the property was sealed at the spot. However the prosecution did not clarify the above position from the witnesses in their re-examination. Thus, the statement on oath of both the witnesses do not show that the property was sealed at the spot. Now it is to be seen as to how far the facts mentioned in the mashirnama of recovery can be relied upon and as to whether the said facts are admissible in evidence without the witnesses deposing the said facts in the Court.
7. In order to resolve the above controversy we have examined various provisions of Code of Criminal Procedure and the case-law on the above subject. A perusal of the Code reveals that the word "search" has not been defined in it. Therefore its meaning is to be taken in its ordinary dictionary sense. In Black's Law Dictionary, "search" has been defined as: "An examination of a man's house or other buildings or premises or of his person, or of his vehicle, aircraft, etc., with a view to discovery of contraband or illicit or stolen property, or some evidence of guilt to be used in the prosecution of criminal action for some crime or offence with which he is charged. State v.
Woodall, 16 Ohio Misc. 226, 241 N E 2nd 755. A prying into hidden places for that which is concealed and it is not search which is open to view. Probing or exploration for something that is concealed or hidden from searcher; an invasion, a quest with some sort of force, either actual or constructive.
People v. Carroll 12 III, App 3d, 869,299 N.E 2d 134,
140. Visual observation, which infringes upon a person's reasonable expectation of privacy constitutes a search in the constitutional sense. People v. Harfman, Colo. App 555 P-2d 187,189.
8. In the case of S Y Modagerkar and Sons v. Commercial Tax Officer, and Belganum, 1978, 41 S. T.C.
298 at page 304 while dealing with the distinction between search and inspection it was observed "All searches are inspections, but all inspections are not searches. A search is a thorough inspection of a man's house, building or premises or of his person, With the object of discovering some material which would furnish evidence of guilt for some offence with which he is charged. It implies a prying into hidden places for that which is concealed. If the objects sought for is always in plain sight, then there is no search. If the private account books had been kept in the counter openly at all times and they would have been found on an inspection at any time of the day, then the seizure of such account books cannot be said to have been made after a search".
9. From the above definitions of the word "search" it is clear that it connotes the active seeking or quest of something which is hidden are prying into hidden places for something for that which is concealed and in legal parlance for the implies the use of force, actual or implied. Thus where the articles are lying open and in full view and no prying or seeking is involved or the articles are voluntarily produced by the accused, it cannot be called search.
10. Search under the Code of Criminal Procedure may be of places entered by persons sought to be arrested [S.47], of arrested persons [SS.51 and 52]; of documents or other things necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under the Code [S.96]; of houses suspected to contain a stolen property, or documents, etc., [S.98] and of persons wrongful confined [S.100], search may be made under search warrant issued by Court or Magistrate [SS.96, 98, and 100]; or be directed to be made in his presence by Magistrate [S.105]; or may be made, without warrant, by a police officer of a person [whether male or female] arrested [SS.51 and 52]; or in an emergency, by a police officer making an investigation, of a place within his jurisdiction, where he reasonably believes that anything necessary for his investigation may be found [S.165] and by an SHO of another police station at the request of a police officer, not below the rank of Sub-Inspector, whether within the same district or different district making an investigation, in the same manner as provided in section 165 [S.166].
11. Thus there are two types of searches conducted by a police officer: one under the warrant issued by the Magistrate, and; second without warrant during the course of investigation. The first category of searches is mentioned in sections 96 to 105 of Chapter-WI of Criminal Procedure Code under which the same are conducted in presence of two respectable inhabitants of the locality (S. 103) in which the place is to be searched and that a record in respect as provided under section 103(2), is to be prepared.
12. If the place which is to be searched is closed and if any person in or about such place is reasonably suspected of concealing about his person, any article for which search was to be made then such person can be searched and if such person is a woman then procedure as mentioned in section 52 of Criminal Procedure Code is required to be observed. The classes of search where courts have commonly to deal with are searches of places by police or other person under the provisions of sections 103,165 and 166, Cr. P.C. To which provisions the section 103, Cr. P.C.
Have expressly been made applicable. Sections 102 and 103, Cr. P.C. Read as under:- "102. Persons in charge of closed place to allow search. <u.persons>--(1) Whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of such place shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities, for a search therein.</u.persons>
(2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in manner provided, by section 48.
(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched. If such person is a woman, the direction, of section 52 shall be observed."
"103. Search to be made in presence of witness.--(1) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situated to attend and witness the search and may issue an order in writing to them or any of them so to do.
(2) The search shall be made in their presence, and a list of all things seized in the course of such search and of the place in which they are respectively found shall be prepared by such officer or other person and signed by such witness; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.
(3) Occupant of place searched may attend.--The occupant of the place searched, or some person in his behalf, shall, in every instance be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witness, shall be delivered to such occupant or person at his request.
(4) When any person is searched under section 102, subsection (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person at his request.
(5) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or rendered to him, shall be deemed to have committed an offence under section 187 of the Pakistan Penal Code."
13. If a police officer wants to search any place during the course of investigation under section 157, Cr.P.C. Then he is authorized to do so under section 165, Cr.P.C. The said section reads as under:-- "165. Search by police-officer.---(1) Whenever an officer incharge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purpose of an investigation into any offence which he is authorized to investigate may be found in any place within the limits of the police station of which he is incharge, or to which he is attached and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search or cause search to be made, for such thing in any place within the limits of such station [Provided that no such officer shall search, or cause search to be made, for anything which is in the custody of a bank or banker as defined in the Bankers' Books Evidence Act, 1891 (XVIII of 1891), and relates or might disclose any information which relates, to the bank account of any person except:- -
(a) for the purpose of investigating an offence under sections 403, 406, 408, and 409 and sections 421 to 424 (both inclusive) and sections 465 to 477-A (both inclusive) of the Pakistan Penal Code, with the prior permission in writing of a Sessions Judge; and
(b) in other cases, with the prior permission in writing of the High Court.
(2) A police-officer proceeding under subsection (1) shall, if practicable, conduct the search in person.
(3) If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may after recording in writing his reasons for so doing require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing specifying the place to be searched, and, so far as possible, the thing for which search is to be made; and such subordinate officer may thereupon search for such things in such place.
(4) The provisions of this Code as to search-warrants and the general provisions as to searches contained in section 102 and section 103 shall, so far as may be, apply to a search made under this section.
(5) Copies of any record made under subsection (1) or subsection (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence and the owner of occupier of the place searched shall on application be furnished with a copy of the same by the Magistrate: ' Provided that he shall pay for the same unless the Magistrate for ' some special reason thinks fit to furnish it free of cost."
14. For conducting search under section 165, Cr.P.C. The provisions as to searches contained in section 102 and section 103, Cr.P.C. Are required to be complied with.
15. Under both the searches, either under the warrants issued by the Magistrate or without warrant during the course of investigation, in which provisions of section 103 are applicable the searches are to be made in respect of places. If the searches are made under any of the above mentioned provisions then the police officer will do such searches in the discharge of his official duty and the record prepared during the said searches as provided under section 103, Cr.P.C. Is protected and made admissible under Article 49 of Qanun-e-Shahadat Order that reads as under:-- "Relevancy of entry in public record made in performance of duty.-An entry in any public or ,other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept is itself a relevant fact."
16. Thus, the law protects the record prepared as required under section 103, Cr.P.C. In both the type of searches and the said record is admissible and can be relied upon even without producing the mashirs unless the Court specially summoned them.
17. Now it is to be seen what type of record is required to be prepared under section 103, Cr.P.C.
Under its subsection (1) law provides that search should be made in presence of two or more respectable inhabitants of locality in which the place is to be searched. Under subsection (2) the search is required to be made in presence of said witnesses and a list of all things seized in the case of such search and the places in which they are respectively found are required to be prepared by such officer and signed by said witnesses. Thus the requirement of law under section 103(2), Cr.P.C. Concerning preparation of record is that the police officer shall prepare the list of the things seized, show the places in which they are respectively found and signed by two witnesses. If the said list is prepared in the above mentioned manner then it will be the record prepared in pursuance of section 103(2), Cr.P.C. The said list will then be protected and admissible under Article 49 of Qanun-e-Shahadat Order, 1984. The said record is normally called mashirnama , which is prepared by the Investigating Officer at the time of such searches. It will be noticed that the word "mashirnama" is not mentioned in the said provision but the police are describing the said list as mashirnama for their convenience.
18. The word mashirnama is combination of two words "mashir" and "nama" The word "Mashir" is an Arabic word. Its dictionary meaning is a counsellor, a senator, a minister; one who points out as an indicator. The word "nama" is Persian word. Its dictionary meaning is :a book, a letter, a writing, a record, a written document, a treatise, a writ, a certificate, a deed, a history or an account. In popular parlance it is considered to be a legal term such as Vasyatnama (a will), Kassamnama (an affidavit), Vakalatnama (power of attorney) and Danistnama (an inquest report). The word mashirnama is closely associated with police investigation. There is hardly a police investigation in which there is not one or other kind of mashirnama. It is also called panchnama The said word also does not appear in the Code. However, the Code gives indication as to what should be the contents of a mashirnama and as to what part of a mashir is required to play in the preparation of mashirnama. From sections 103 and 174, we get the idea as to the meaning of the word "mashir". It means "two or more respectable inhabitants of the locality or neighbourhood." For the meaning of the word we get the authority from the said sections. Thus a mashirnama is a document which a police officer is required to make during police investigation. A perusal of the Code reveals that it recognizes only two documents that is mashirnama of search and Danistnama. Former is prepared under section 165, read with section 103, Cr.P.C. And the latter is prepared under section 174 of the Code. Both these documents are compulsory attested by mashirs and are prepared by the police officer in their presence.
19. It will be noticed that in criminal Courts and police administration there are seven kinds of mashirnamas. They are: (1) Mashirnama of search of places and persons conducted under the provisions of sections 165, 166 read with section 103, (2) mashirnama of inquest in other words danistnama (S.174), (3) Mashimama of production of property by the accused to the police, (4) mashirmana of securing of property from the complainant or witnesses, (5) mashirnama of the test of identification of foot prints of suspected persons from Penis and Pagees held by the police,
(6) mashirnama of inspection of the scene of the incident, (7) mashirnama of the test of identification of suspected person or property held by the police.
20. Law requires that police officer, shall prepare mashirnamas Nos.1 and 2 as provided under sections 165 and 174 of the Code. In the other mashirnamas the law does not require a police officer to conduct investigation in presence of mashirs. It appears that the police officer through the above method introduces or brings a matter which otherwise cannot come in evidence because the matter comes within the subject-matter of police statement under sections 161, 162, or a police diary under section 172 that are expressly excluded by law to be introduced from the side of prosecution.
21. If the mashirnama as provided under section 103, Cr.P.C. Mentions other facts, such as; observations made by the Investigating Officer or a police officer or contains a statement of witness or confession or admission of accused or any other fact beyond the scope of the list of things seized and the places in which they were respectively found will be out of the scope of section 103, Cr. P.C. Thus the officer concerned is not required to mention such facts in the mashirnama. If such facts are mentioned in the mashirnama then the said facts will not be protected or admissible under Article 49 of Qanun-e-Shahadat Order.
22. A similar question arose before Privy Council in a case of Rai Bhaiya Dirgal Deo Bahadur v. Bene Mahto (AIR 1917 PC 197). It was observed as under:-- "Now clearly this register is an official document, and therefore it is admissible in evidence under S.35 of the Indian Evidence Act. It may be possible that in the case of such a document, if it could be shown that any particular part was in excess of the official duty by reason of which it came into existence, that part might not be admissible, but no attempt has been made to show this in the present case."
23. On the similar question a Division Bench of Nagpur High Court, in the case of State v. Kamruddin (AIR 1956 Nagpur 74) at page 76 observed as under:-- "True, the entry shows that the name of the girl born to Lazman on 10-9-1939, is Jai, but, in our opinion, the name `Jai' written on 29-10-1939 is not admissible in evidence without there being independent evidence to prove it. The Birth and Death Register is no doubt a document within the meaning of S.35, Evidence Act and is therefore relevant and has evidentiary value. But this does not mean that each and every entry made in that register is admissible in evidence."
' Only such entries as are made therein by persons in the discharge of their official duty are admissible. The relevant rules do not show that any duty is enjoined on the person concerned to note the name of the child born. Lord Parker of Waddington in delivering the judgment of the Judicial Committee of the Privy Council in 'Rai Bhaiya Dirgal Deo Bahadur v. Bene Mahto (AIR 1917 PC 197 (1) (c) observed at page 197(1):-- "Now clearly this register is an official document, and therefore it is admissible in evidence under S.35 of the Indian Evidence Act. It may be possible that in the case of such a document, if it could be shown that any particular part was in excess of the official duty by reason of which it came into existence, that part might not be admissible, but no attempt has been made to show this in the present case."
' In the present case it has been shown that the name of "Jai" was written in Exh.P9, is, therefore, inadmissible evidence. The entry was made on 29-10-1939. The person who has made it is not examined. Shravan (P.W.9) who is examined in connection with Exhibit P-9 admits . That he did not know who had made that entry in the register.
' Thus all that it can be said is that the prosecution has proved that a girl was born to Lazman on 10-9-1939. But this is not sufficient to establish that that girl was Jai. A mere entry in a Birth and Death Register to the effect that a daughter was born to a person without any statement as to the identity of the girl is not sufficient to prove the birth of a particular person.
' The identity of that person has to be fully established by other evidence.--Ilemanta Kumar v.
Alliantz Und Stattgarter Life Insurance Co. Ltd., AIR 1938 Cal. 120(D) and --Bisewar Misra v. The King AIR 1949 Orissa 22 (E)."
24. Relying upon the above mentioned Privy Council decision in the case of Namdeo v. Ramrao (AIR 1933 Nagpur 310) at page 311, it has been observed as under:- "The lower appellate Court was undoubtedly inconsistent in rejecting the Record of Rights entries as to valuation of certain fields in the case of the appellant and accepting the same in the other connected case. But it is rightly contended for the respondents that these entries do not satisfy the provisions of S.35, Evidence Act, and were irrelevant. R.14 of the "notes on the Record of Rights sample entries" appearing at p.177 of the Barar Land Records and Survey Manual, 1917, was modified by the Notification No,27 of 29th November, 1923. The effect of this modification was that the Patwaris were relieved of the duty of entering in the Record of Rights Register the amounts of consideration of bonds of deeds under which transfers had taken place. The Record of Rights entries as to valuation on which the appellant relied are of the years 1928-1929. As the law did not then require valuation to be given in the register of Record of Rights it follows that the entries relied on by the appellant were irrelevant and therefore inadmissible under S.35,Evidence Act, Dirgaj Deo Bahadur v. Beni Mahto (3). The decision of the lower Court on this matter is therefore justified. The result is that on both the points urged the appeal fails and is dismissed with costs."
24-A. In view of the authoritative decision of Privy Council it is one of the duties of the police officer to record the facts as mentioned in section 103, Cr.P.C. In the mashirnama. If he mentions facts beyond the scope of section 103, then he will be doing so in excess of his official duty, therefore, such entries of facts in the mashirnama will not be in the discharge of his public duty. Therefore, the said facts will not be admissible in evidence under Article 49 of Qanun-e-Shandat Order.
25. Even otherwise the provisions of section 103, Cr.P.C. Are not applicable in respect of searches made under sections 20, 21, 22, 23 of Control of Narcotic Substances Act, 1997 in view of provisions of section 25 of the said Act. Furthermore, the Hon'ble Supreme Court of Pakistan in the case of State v. Muhammad Amin (1991 SCM R 1367) has held that provisions of section 103, Cr.P.C. Are applicable to the search of a house but it is not applied elsewhere, for instance; on the highways or the road sides or the public places like railway stations, bus stand or airport. At page 1371 it has been observed as under:-- "We tend to approve the construction ante place by the Supreme Court of Azad Jammu and Kashmir on section 103 of the Cr.P.C. Containing to the extent of compliance thereof. Section 103 of the Cr. P.C. Containing the words 'respectable' and 'locality' for the two witnesses as required thereunder are crucial. Notwithstanding the emphasis laid on the word `respectable' or 'locality' or on both, this Court was of the view that 'respectability' of a witness certainly did not depend upon the richness or higher status of a person and that the old concept of responsibility in the dictatorial rules of Kings, and Nawabs must come to an end now with the increase of education in a civilized and democratic society. Be that as it may, the search of the baggage and person at the Airport or on the Highways is generally not amenable to the strict compliance of section 103, of Cr.P.C. It is by now settled law that provisions of section 103, Cr.P.C. Do not apply if the recovery is not made in pursuance of search of a house, but is made elsewhere, for instance on the Highways or the road sides or the public places like Railway Stations, Bus Stands and the search of baggage or of the person at the Airport."
26. There is no provisions in the Criminal Procedure Code or in the Control of Narcotic Substances Act, 1997 or in Police Rules for preparation of any mashirnama except as provided under section 165 read with section 103, Cr.P.C. Therefore, if any such mashirnama is prepared beyond the scope of section 103, Cr.P.C. Then that cannot be held to be prepared in the discharge of official duty of a public servant, therefore, such mashirnama is not protected or admissible under the Article 49 of Qanun-e-Shandat Order. The same point has been clarified under Circular-2 (ix) Part-C, Chapter- V of Federal Capital and Sindh Courts Criminal Circulars where all the above provisions of law have been discussed that supports our view. The said circular reads as under:- "(ix) A Police Officer may sometimes be required to make a search under Chapter VII, Criminal Procedure Code, or under section 165 of the Criminal Procedure Code. Acting under this chapter or under this section he incurs the obligation imposed by section 103, Criminal Procedure Code. It is his duty to call upon two or more respectable inhabitants of the locality in which the place. To be search is situated to attend and witness the search. A list of things seized in the course of such search and of the place in which they are respectively found shall be prepared by such officer and signed by such witness.
' An entry in any public record stating a relevant fact and made by a public servant in the discharge of his official duty or by any other person in performance of the duty specially enjoined by law, is itself a relevant fact. A list called a mashirnama or panchnama duly made as directed by section 103, Criminal Procedure Code, would be admissible in evidence under section 35 of the Evidence Act (now Art.49 Qanun-e-Shandat Order, 1984); but in a list so made no confession can find a , place. If a mashirnama which is relevant and, admissible under section 35 of the Evidence Act, contains passages contravening some section of the Evidence Act, e.g., section 25 or 26 or of the Criminal Procedure Code, e.g. Section 162, the Court should admit only the portion which is relevant and admissible and bring such portion on the record as an exhibit. Steps should be taken by the Court to prevent irrelevant or inadmissible matter being introduced or read or printed or brought to the notice of the assessors.
' Mashirnama which are not made by a police officer in the discharge of his duties under Chapter VII, Criminal Procedure Code, or under section 165, Criminal Procedure Code, may be divided into two classes .In the first may be included documents recording facts observed by the police on an inspection of the scene of offence in an investigation under section 157, Criminal ' Procedure Code. These documents are valuable for they contain a contemporaneous record of facts observed at the scene shortly after the offence was committed. There is nothing, however, in the Criminal Procedure Code, or in the Bombay District Police Act, requiring the police to make such mashirnama. They are records voluntarily prepared during the discharge of their official duties rather than records made in the discharge of their official duties. They can be used for refreshing memory under section 159 of the Evidence Act (now Art.155 of Qanun-eShahadat Order, 1984), and are subject the provisions of section 161 of that Act. They are really not relevant and admissible under section 35 of the Evidence Act, but in order to save the time and trouble of the Court in recording verbatim, at the dictation of the witness, the contents of the mashirnama, the practice has grown up of the mashir merely testifying as to his signature and asserting the mashirnama is correct and no attempt is made to obtain, the facts recited therein from the witness by examination. The mashirnama is then brought on the record and exhibited and its admission is seldom opposed. Such a practice is to be condemned. The Court should see that the material facts mentioned in the mashirnama are testified by the witness or witnesses to the mashirnama in answer to questions put regarding those facts, and the Court should not be satisfied with the mere statement of the witness or witnesses that the facts stated in the mashirnama are correct. The mashirnama may then be brought on the record and exhibited if its admission is not opposed. The second class of these documents are those which purport to record fact observed at the scene during an investigation under section 157, Criminal Procedure Code, but which contain confessions or statements barred by section 25 or 26 other section of the Evidence Act or section 161 of the Criminal Procedure Code. Mashirnama of this description should be rigorously excluded in toto.
(See 1933 Sindh 220, Baloch Perwah v. Emperor, and I.R. 1940, Karachi, 487 Inwar and another v.
Crown)."
27. Keeping in view the above position of law we have examined the mashirnama Exh.P/2 in which it has been mentioned that the sample was sealed at the spot but the said fact is out of scope of section 103, Cr.P.C. And hit by Article 49 of Qanun-e-Shahadat Order according to which it only protects the list of articles secured in the course of search and the places in which they were respectively found. Beyond that, all the facts mentioned in the mashirnama are inadmissible in evidence, therefore, they cannot be relied upon. If the prosecution wants to establish a fact out of the scope of section 103, Cr.P.C. Then the said facts are required to be stated by the witnesses on oath before the Court. Both the witnesses did not state that the sample was sealed at the place of the incident. Such fact even if mentioned in the mashirnama is inadmissible under section 49, of Qanun-e-Shahadat Order, 1984, therefore, we have no hesitation in holding that the property was not sealed at the said place.
28. In the light of what has been discussed above it has not been proved beyond any shadow of doubt that the property was sealed at the place of the incident, therefore, there is no guarantee that the property was not tampered with. The subsequent sealing of the property elsewhere would not rectify the defect already made during course of investigation at the initial stage, hence the chemical analyser's report has lost its evidentiary value. If the property was subsequently sealed then the prosecution was required to explain the circumstances for doing so and to further specifically show that the property was not tampered with or replaced. There is no such explanation furnished by the prosecution in this case, therefore, non-sealing of the sample immediately after its recovery creates serious doubt in the prosecution case, hence no implicit reliance can be placed on chemical analyser's report. If the chemical analyser's report is taken out of the consideration then there is nothing left with the prosecution to prove that the alleged property was charas.
29. Apart from the above, a serious doubt has been created upon the sample as the complainant stated that two rods were drawn as sample, whereas the mashir stated that only one rod was drawn as sample. It is not known as to which of the P.Ws. Is telling the truth and on which of these two statements the Court should rely, particularly, when the property was not sealed at the place of the incident immediately after its recovery, therefore, the prosecution case on this account also becomes doubtful.
30. After considering the material available on the record we are of the considered view that the case of the prosecution is highly doubtful against the appellant, therefore, the appellant is entitled to the benefit of doubt which is accordingly given to him.
31. Consequently the conviction and sentence awarded under the impugned judgment are set aside. The appellant is acquitted and set at liberty. The bail bonds furnished in the case are cancelled and the surety is discharged. The appeal is allowed.