1. ' We have heard the learned Prosecutor General, ANF, for the appellant/State and the learned counsel for the respondent/accused, as well as perused the record minutely, including the impugned judgment and evidence led by the parties in the matter.
2. ' By our short order dated 24-5-2010 we have dismissed the appeal for the reasons to be recorded later and the following are the reasons for the same.
3. ' Necessary facts of the case are that the Police Inspector Jehangir Khan along with his subordinates, namely, A.S.-I. Naeem Khan, PC Kamr an Shah apprehended the respondent Muhammad Siddiq Baloch on spy information on 12-7-2004 at 2230 hours at Pershan Chowk, Faqir Colony, Orangi Town, Karachi and secured form his personal possession narcotic substances, i,e, Charas and opium weighing 15 Kg. And 1400 grams and one Kg. Respectively in shape of foil packing packets and rods of charas and one packet of opium, packed in Packets, under a memo.
4. Prepared there and then, before the aforesaid official mashirs under which the officer arrested the respondent for the offence punishable under section 9-C of the Control of Narcotic Substances Act, 1997 and having registered the case, investigated the same. The total of the secured charas and opium were sent to the expert under sealed cover for examination who gave his report in affirmative, and ultimately after completion of the investigation, the officer charge-sheeted the respondent in the court of law for trial of the aforesaid offence.
5. ' The learned Special Judge (C.N.S) Karachi, tried the respondent, recorded the evidence of prosecution consisting of two witnesses, including the complainant/ Investigating Officer and one mashir of the memo referred to above, and statement of the accused under section 342, Cr.P.C. And then having heard the matter passed the judgment impugned in this appeal whereby the learned trial Court has been pleased to hold the respondent 'not guilty' of the said offence, and acquitted him of the charge giving benefit of doubt.
6. ' ANF being aggrieved by and dissatisfied with the said finding of the learned trial Court, preferred this appeal praying for setting aside of the said judgment and reversing the findings by holding the respondent 'guilty', and convicting and sentencing him under the aforesaid section of law inter alia, on the grounds mentioned thereunder.
7. ' Learned Prosecutor General argued that the learned trial Court has not properly appreciated the evidence and came to an erroneous conclusion that the evidence led by the prosecution/ANF did not sufficiently discharge the burden of proving the guilt of the respondent beyond shadow of any reasonable doubt, and therefore according to him, the impugned judgment is not sustainable in law and the same is liable to be set aside and the respondent be convicted and sentenced as prayed for.
8. ' The learned counsel for the respondent pointed out that the learned trial Court has taken notice of the material contradictions appearing in the evidence that includes the statement of the P.Ws including the Investigating Officer and the mashir and the documents they have produced particularly the memo. Of search, arrest and recovery referred to above, which bears the witnesses taken out of the same raiding/arresting party with no public witness from the locality or otherwise.
9. As per the learned counsel, a single circumstance which creates doubt as to the guilt of the accused beyond shadow of any reasonable doubt, may result in acquittal of the respondent and therefore doubt, may result in acquittal of the respondent and therefore the learned trial Court rightly formed an opinion that the evidence carries material contradictions and is not free from doubt and the benefit of which goes to the accused.
10. We have carefully gone through the impugned judgment and found that the learned trial Judge, has discussed the evidence led by the prosecution and pinpointed the contradictions which led the learned trial Court to come to the said conclusion of the case. The relevant paragraphs of the impugned judgment are reproduced herein below:-
8. No entry number of leaving Police Station has been produced by prosecution, P.W.1 the Complainant Inspector Jehangir Khan has deposed that entry of departure was maintained, but he do not remember the entry number, and admitted that entry of departure from Thana and return to Thana so also registration number of mobile are not mentioned in the Memo. Of arrest and recovery, F .I.R., 161 Cr . P . C . Statements so also in challan. Non-producing of entry leaving the Police Station has cut the root of prosecution case.
9. P.W.1 Inspector Jehangir Khan who was examined vide Exh. 6 in cross-examination admitted that he was (a) head of raiding party, (b) Complainant, (c) Seizing. Officer, (d) Investigating Officer, (e)
11. Incharge Malkhana, (1) and Additional S.H.O., he was wearing six caps simultaneously. The superior Courts have denounced the practice of Investigating Officer, and Complainant to be same, as it hinders independent investigation, and is against the spirit of independent investigation, but in this case Inspector Jehangir Khan is also Incharge of Malkhana, Complainant, Seizing Officer, Investigating Officer and Additional S.H.O., which casts serious doubt about independent investigation having been conducted in this case. Police Order 2002 has separated Operation and Investigation Branches, it has no where come on record that Inspector Jehangir Khan was working in the Investigation Wing when he conducted the investigation of this case, this aspect of the case alone makes the whole investigation coram nonjudice, and goes to the very roof of the case, and is a material flaw in the prosecution case, which was made the whole investigation void ab initio.
11. The colour of blue handbag from which Charas had been secured is not mentioned in Exh.P/1 memo. Of arrest and recovery, which admitted by P.W.1 S.-I. Jehangir Khan in his deposition before the Court, and admitted that date of recovery of Opium of Article 'A' is not appearing, and admitted denomination of currency notes recovered from accused are not mentioned in any documents, and signature of Mashirs of Charas packets so also packets of Opium was not mentioned, and further deposed it also does not bear name of accused so also F.I.R. Number, and further admitted it is correct that date of recovery is not written on handbag and further admitted, it is correct to say number of Charas patties, and Charas rods is not mentioned in memo'.
(a) The perusal of Exh.P/4 letter sent to chemical examiner shows dated 15 July, 2004, 15400 kilograms Charas and one Kilogram Opium had been deposited by PC Ayaz Ahmed of Police Station Gulshan Iqbal with chemical analyzer, but he has not been cited as witness in the charge sheet as such an important link of prosecution case has been broken, who was an important witness. His name is not mentioned in the charge sheet, and the prosecution withheld the best evidence available with it, non-production of said witness leads to adverse inference drawn against prosecution in terms of Article 129, clause (g).
12. In keeping with what is observed by the learned trial Judge, we are of the considered view that the impugned judgment suffers from no legal infirmity and the acquittal of the respondent is the logical result of the merits and therefore we find no merit in this appeal which is hereby dismissed in limine.