' ALI SAIN DINO METLO, J.--- ' Appellant Sajjan Lashari, having been convicted under section 9(b) of the Control of Narcotic Substances Act, 1997, for possessing 200 grams of Charas, and sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.5,000 or in default to undergo simple imprisonment for two months more, has appealed against the conviction and sentenced mainly on the ground that the charge against him was riot proved beyond. Doubt.
2. Briefly, the facts, according to the prosecution, are that on 13-9-2004, at 1630 hours, A.S.-I.
Mukhtiar Ali Shah of Police Station Thul, accompanied by six constables, namely, Muhammad Khan, Raham Ali, Malhar Khan, Talib Hussain Shah, Muhammad Ali, and Ghulam Shabbir, on a secrete information, arrested the appellant at his house near Bhitai Mill, Lashari Muhallah, Thul, and on search of his person recovered 200 grams of Charas from flank pocket of his shirt. He registered the case as a complainant on behalf of the State and investigated it himself.
3. At trial, the appellant pleaded not guilty' and the prosecution examined two witnesses, namely, A.S.-I. Mukhtiar Ali Shah and constable Muhammad Khan. The appellant did not produce any evidence in his defence. The trial Court, namely, Sessions Judge cum Special Court for the Control of Narcotic Substances, Jacobabad, believing evidence of the two police officials, convicted and sentenced him as above.
4. According to the trial Court, the two police officials were reliable witnesses as there was no contradiction in their evidence and they had no enmity with the appellant. We are afraid, absence of enmity is not the guarantee of truth of -a witness, particularly a police officials of lower rank, who has to show his performance also Mostly, lower rank police personnel are professional witnesses and, therefore, sometimes even minor contradictions in their evidence matter and require serious consideration in the over all facts and circumstances of a case.
5. The present case, is replete with contradictions, including glaring major contradictions, but unfortunately they were either overlooked by the trial Court or could not attract its attention.
According to A.S.-I. Mukhtiar Ali Shah, the incident had taken place in the evening and they had proceeded from the police station at 1630 hours, but according to P.C. Muhammad Khan, it was morning. It seems that for the trial Court there is no difference between morning and evening.
6. A.S.-I. Mukhtiar Ali has stated that they had gone by the western bank of the canal and the appellant was sitting on the bank in the east of his Pakka constructed house; whereas P.C.
Muhammad Khan has stated that they had gone by the northern bank of the canal and the appellant was standing in the south of . His Kacha constructed house. The A.S.-I. Has stated that they had stopped their vehicle at the distance of 20 ft. In the north of appellant's house. The constable first stated that they had parked their vehicle at the distance of two furlongs in the south of appellant's house but suddenly, perhaps on some indication, he changed his statement and stated that they had parked their vehicle at the distance of 10/15 paces from his house. The A.S.-I.
Stated that the appellant, in his attempt to escape, had run for 2/3 paces towards north; while the constable stated that he had run for 10 meters towards east. The A.S.-I. Stated that he had tied hands of the appellant on his back with a piece of cloth; whereas the constable first stated that P.C.
Raham All had handcuffed him on his front but again suddenly he changed his statement and stated that his hands were tied with a piece of cloth. There- are several other contradictions also, but, for the sake of brevity, it is not necessary to discuss each and every contradictions, particularly when, in view of the above discussed contradictions baffling statements of the witnesses and overall facts and circumstances of the case, we are satisfied that the whole prosecution story is doubtful. The witnesses appear to have narrated a fictitious story fabricated at the police station.
7. While giving all other details of the incident, both the witnesses have not given description of Charas allegedly recovered from the appellant. They have not disclosed C whether it was in powder form or in the form of solid pieces and if in the form of solid pieces what was their number.
The reason for not giving description of Charas seems to be that they had no personal knowledge about the incident and had given evidence only on the basis of contents of the memo. Of recovery and the F.I.R., which surprisingly did not contain description of Charas. The sample, that was sent to the chemical examiner on 29-9-2004 i.e. After 16 days of the registration of case, was in the form of multiple black brown pieces. In absence of description of Charas in the memo. Of recovery and the F.I.R., it cannot be said that the sample sent to the chemical examiner after such a long time was the representative sample. No reason has been given for the inordinate delay in sending the sample to the chemical examiner. Omission to mention description of Charas in the memo. Of recovery and the F.I.R., coupled with unexplained inordinate delay in sending sample to the chemical D examiner, shows that the case was registered in hurry without first getting the Charas.
8. The memo, of recovery and the F.I.R. Show that the police has gone to the appellant's house on receiving spy information that he was selling Charas there. Influenced by such statement contained in these documents, P.C. Muhammad Khan deposed that they had seen him selling Charas but admitted in cross-examination that there was no other person.
9. A.S.-I. Mukhtiar Ali, by conducting .The investigation himself, flagrantly violated the provisions of the Police Order, 2002 and thereby not only E made his credibility doubtful but also exposed himself to disciplinary action and penalty under the Order. According to clause (4) of Article 18 of the Order, investigation was to be made by the investigation staff. Even the proviso to the clause, empowering the government to authorize police station staff to investigate offences under local or special laws punishable with imprisonment not exceeding three years, is of no help to him, as the offence of possessing 200 grams of Charas is punishable under section 9(b) of the Control of Narcotic Substances Act, 1997, with imprisonment for seven years. Thus, the investigation made by A.S.-I. Mukhtiar Ali is patently illegal. Though it may not have the effect of vitiating the trial, it has certainly damaged credibility of the investigator. In Criminal Bail No.766 of 2006 re: Muhammad Farooq Khan versus the State, reported in 2007 Pakistan Criminal Law Journal 89 (Karachi), a Division Bench of this Court has already taken similar view.
10. In view of the above, it is clear that prosecution had miserably failed to prove the charge against the appellant. The trial Court failed to appreciate the evidence properly and erred in convicting the G appellant. Therefore, by a short order passed on 7-12-2006, the appeal was allowed and the appellant was acquitted and directed to be released immediately. These are the reasons.