' MUHAMMAD MOOSA K. LEGHARI, J.----This appeal is directed against the judgment dated 9-4- 2004, passed by learned Special Judge Control of Narcotic Substances, Hyderabad, in Special Case No,90 of 1998, whereby the appellants were convicted under section 9(c) of Control of Narcotic Substances Ordinance, 1996, and sentenced to suffer imprisonment for life plus a fine of Rs,2,00,000 each. In case of non-payment of fine each of them shall suffer one year more imprisonment. The appellants were, however, extended benefit admissible under section 382-B, Cr.P.C.
2. The facts of the case as disclosed in the F.I.R. Of Crime No,2 of 1996, Police Station A.N.F.
Hyderabad, registered on 6-3-1996 by SIP Ghulam Abbas are that the complainant along with other officers and several members of Anti-Narcotics force of Karachi and Hyderabad on the said date proceeded for checking about narcotics for Tando Adam in Official Vehicles vide Roznamcha Entry No,18. On reaching Tando Adam they received spy information that narcotic is being sold in a house near railway crossing Jatia Para Tando Adam. The raiding party arranged a private person, by name Zafar Iqbal resident of Tando Adam who agreed to act as witness. They took the Mashir and proceeded to the pointed place. When they encircled the house the inmates of the house started firing, however, the raiding party succeeded in entering the house and found four persons out of whom one by name Muhammad Rahim son of Islam Shah was lying injured. According to the prosecution story the injured disclosed the names of remaining accused as Khadim Hussain alias Arman and Ali Aman Shah and stated that he was injured due to their firing, however, both of the co-accused made their escape good. The A.N.F. Officials apprehended the three remaining accused persons named as Zaman Shah, Noor Aslam and Issa Khan. Zafar Iqbal and Inspector Khaliduddin were made Mashirs and the search was made in their presence. From the personal search of the accused persons some currency notes were secured. While an iron box was noticed lying there from which Charas and opium were secured. After entering the rooms from one room a blue colour plastic bag was secured which contained Charas and opium. The Charas secured from the iron box was weighed which became 32 Kilograms while the weight of opium recovered from the same iron box was 4 Kilograms. Weight of the Charas recovered from the blue colour plastic bag became 48 Kilograms while the weight of the opium recovered from the said plastic bag came to be 2 Kilograms. 1 (one) Kilogram of Charas and 250 grams of opium from the iron box while from blue colour plastic bag 1 Kilogram Charas and 250 grams opium were taken as samples and sealed for sending the same to the Chemical Examiner. Mashirnama was prepared, accused were arrested and injured Rahim was sent to nearest hospital for treatment under the custody of A.S.-I. Amjad Ali. Such F.I.R. Was lodged.
3. After completing the investigation the accused were sent up to stand trial. Formal charge was framed to which the appellants pleaded not guilty and the trial commenced.
4. The prosecution in order to prove their case examined P.W.1 Mashir Inspector Khaliduddin who produced Mashirnama of arrest and recovery and P.W. Inspector Ghulam Abbas who produced the Roznamcha entry, report of Chemical Examiner.
After the closure of prosecution side the statements of the accused were recorded under section 342, Cr.P.C. All the accused persons claimed to be innocent and denied the allegations.
5. On the basis of the evidence adduced on the record, learned trial Court convicted the appellants in the terms stated above.
6. Mr. Anwar H. Ansari, learned counsel appearing for the appellants mainly contended that the private Mashir who was associated with the search, recovery and arrest was given up by the prosecution though he was available in the Court for evidence, which rendered the recovery doubtful. He further argued that though it has come in the evidence that firing took place between the parties in which one of the appellants was injured but neither the arms and ammunition nor any empties were secured from the place of Wardat. He also pointed out certain contradictions in the evidence of the prosecution witnesses to contend that the prosecution has failed to prove the case against the appellants. In support of the above contentions learned counsel placed reliance on the case reported in 1995 SCM R 1414; 1996 SCM R 167; 1997 SCM R 1494; PLD 2001 SC 107 and 2002 PCr.LJ 1475.
7. Conversely, learned counsel appearing for A.N.F. Supported the impugned judgment mainly contending that it was impossible for the prosecution to foist such huge quantity of narcotics upon the appellants. He further contended that it was the prerogative of the prosecution to examine as many witnesses as found necessary and that the quality and not the quantity of the witnesses was material. He was, however, unable to controvert the position that the provisions of section 103, Cr.P.C. Were violated.
8. We have considered the submissions made before us, scanned the evidence available on the record and have perused the case-law on the subject.
9. At the outset it must be stated that the incident took place on 16-3-1996 when Control of Narcotic Substances Ordinance, 1996, was in force. Thus the proceedings have to be regulated under the provisions of Control of Narcotic Substances Ordinance, 1996. According to the provisions of section 22 of the said Ordinance, the provisions of Criminal Procedure Code, 1898, shall, mutatis mutandis, apply to all searches and arrests insofar as they are not consistent with the provisions of sections 18, 19, 20 and 21 to all warrants issued and arrests and searches made under these sections.
' The conspicuously distinguishing features between the C.N.S. Ordinance, 1996 and the C.N.S. Act, 1997 is the applicability or otherwise of section 103 of the Code of Criminal Procedure. The mode of making searches and arrest under section 25 of the C.N.S. Ordinance, 1997, excludes the applicability of section 103, Cr.P.C, whereas the 1996, Ordinance does not provide for such exception. Thus it would be obviously clear that so far as the search seizure and arrest is concerned the provisions of section 103, Cr.P.C. Were not excluded, and were applicable in the instant case. Evidently this was the reason that the A.N.F. Raiding party took along a private person namely Zafar Iqbal with them for the purpose of witnessing the search and recovery.
10. The case diary of the trial Court dated 7-7-2003 reveals that P.W. Zafar Iqbal was present in the Court but he was given up by the special prosecutor by submitting a statement in writing, which is also available on the Court file. The perusal of the statement given by the special prosecutor reveals that no reason was disclosed for giving up this witness. In the case Iltaf Hussain v. The State reported in 1996 SCM R 167, it was held by the apex Court if a private Mashir who has been cited in the challan by the prosecution has been given up in the trial Court without assigning any reason by the prosecution then adverse inference may be drawn that had he been examined by the prosecution he would not have supported the case of the prosecution and in that event the benefit was to be given to the accused. While extending the benefit of doubt to the accused in the above cited case, it was observed by the Honourable Supreme Court as under:-- 44 We, accordingly, hold that evidence of Police witnesses who are, in a way, the complainant could not solely be accepted to be relied upon to convict the appellant, especially, when the aforesaid public witness was abandoned without any rhyme or reason. The possibility that the appellant was implicated with some ulterior motive could not be ruled out . . . ."
11. Keeping in view the applicability of section 103, Cr.P.C. In the case in hand, one cannot lose sight of the verdict of apex Court in the case of Muhammad Mansha v. The State reported in 1995 SCM R 1414. In the said case, while emphasizing the importance of public witnesses in the recovery of narcotics, Honourable Supreme Court took the view that failure of police officers to join two respectable persons to witness the recovery, the benefit of doubt must be extended to the accused persons. In the present case though only one public witness was joined to attest recovery, search, arrest etc., yet he was also dropped by the prosecution. As observed earlier, the diary dated 27-7- 2003 clearly reveals that P.W. Zafar Iqbal was present in the Court in pursuance of the process issued against him but was given up and in that event an adverse inference is essentially to be drawn against the prosecution.
12. Referring to the argument advanced by the learned Prosecutor, it must be stated that there is no cavil with the prosecution that it is the quality of the evidence which matters and not the number of witnesses. Nevertheless it must be observed that the quality of the evidence adduced by the prosecution was much below the required level to merit credibility and to attract trustworthiness.
Certain glaring contradictions were noticed in the evidence of the two prosecutor witnesses inasmuch as that P.W. Inspector Khaliduddin who acted as co-Mashir with Zafar Iqbal deposed that no person from the locality was called to act as Mashir. He further deposed that he did not remember the pieces of Charas lying in the box. He was unable to say that how many pieces of Charas were lying in the plastic bag. He stated that he does not remember the exact direction of the gate. He also stated that he did not remember on which side the doors of the rooms were facing.
13. Apart from the above it is quite strange to note that according to the version recorded in the F.I.R. Encounter had taken place in which at least one of the accused persons viz: Appellant Rahim Shah sustained severe injuries. Though the case of the prosecution is that he sustained injuries in the firing made by the inmates of the house but even then if the allegations are true the raiding party of the A.N.F. Was not only deterred from performing their official duties but an attempt to murder was also made on their lives but strangely enough no such report was lodged at the concerned Police Station. Even if it may be assumed that the arms and ammunition were with the accused persons who fled away while taking the same with them, the empties might be lying on the spot but the Mashirnama does not show that any empties were found. Even the raiding party did not say that they made a firing. This aspect of the case enormously enhanced the justification to doubt the prosecution story, which is otherwise shrouded in mystery.
' The cumulative effect of all the above circumstances, would lead to believe that the prosecution has failed to prove the guilt of accused persons. In the circumstances, the appellants are entitled to the benefit of doubt as a matter of right. We have, therefore, arrived at the conclusion that the conviction recorded against the appellants is not sustainable in law. The appeal is accordingly allowed and the impugned judgment is set aside. The appellants are acquitted. They shall be released forthwith if not required in any other case.
' These are the reasons for the short order passed on 15-9-2005.