JUDGMENT"
GHAUS ALI SHAH, J.---This appeal under section 410, Cr. P. C. Is preferred by the appellant against the judgment dated 9-12-1975, of the learned Sessions Judge, Dadu, whereby he convicted the appellant under section 43 (3), Abkari Act and sentenced him to suffer R. I. For 3 years and to pay a fine of Rs. 3,000 or in default of payment of fine to suffer R. I. For one year more.
2. The brief facts of the prosecution story are that Mohammad Siddique, A. S. 1,..Police Station- Sehwan of District Dadu, received spy information on 23-9-1973, at about 9-00 a. m. That some "Charas" was being brought into the town of Sehwan from Hyderabad side. He after making such necessary note in daily diary of the police station left for the bus stand of Sehwan. He was accompanied by his staff consisting of A. S. 1. P. Sahib Khan, Head Constable Mohammad .Khan, Police Constables, Khalil Ahmed and Abu Bakar. He picked up two Mashirs Khuda Bux and Leemon from a place near the bus-stop. While the police party was at the Bus stop, a Car No. 9076 passed with fast speed and the Police party pursued it. It was seen that two persons including the driver were sitting in the Car. When the Police party reached apt Otak of Izzat A.I Khan, they found that the car was returning towards them. When it was intercepted there was only one person seen at the steering-wheel, being the present applicant. The car was searched but nothing was found and the appellant was directed to open the luggage-- box of the car. When it was opened A. S. I.
Mohammad Siddique recovered 3 bags containing . Charas which was latter weighed on the spot and found to be one maund, 26, seers. The "Charas" was seized in the presence of Mashirs Khuda Bux add Leemon and such Mashirnama was prepared in their presence. The appellant was interrogated who voluntarily pointed out some other quantity of "Charas", lying in the lane. The appellant led the A. S. I. P, and the abovesaid Mashirs towards the lane from where six small cloth bags were secured, which were also weighed and found to be three maunds thirty seers. It was secured in presence of the said Mashir vide Mashirsnama Exh.
7. The appellant disclosed the name of his companion to be one `Fareed' who slipped away on seeing the Police party. The A.
1. S. P.
Muhammad Siddique thereafter recovered the papers of the car i. e. Fitness and registration certificates, prepared such Mashiranama in presence of the same Mashirs. The appellant alongwith charas and his car was brought to the Police station of 'Sehwan' where A. S. 1.
Mohammad Siddique lodged the F. I.R. Exh. 15 on behalf of the State. He also recorded the statement of Mohammad Bux and other constables who were present at the time of the raid. The case papers were handed over to the S. H. O. Who after necessary investigation challaned the appellant in the Court of Civil Judge and F. C. M., Sehwan, who committed the case to the Court of Session for trial. The "Charas" recovered from the accused was got examined from the Chemical Examiner whose report is produced as Exh. 16.
3. The appellant however denied all the allegations. According to him, the Charas has been foisted on him by the Police. The Police first suspected him for possessing a stolen car but subsequently as a result of inquiry, it was proved to be a false allegation. The Police therefore foisted the "Charas" and challaned him in this case. He however, did not examine any one in defence.
4. The prosecution case, is mainly based on evidence of Mashir, Leemon A. S. I. Mohammad Siddique, Head Constable Mohammad Khan and Badruddin, Excise Inspector.
5. P. W. Leemon, who acted as a Mashir, deposed in the trial Court that he and Khuda Bux were made to act as Mashirs in this case and both of them were called at the police station. He did not see any "Charas". He also did not see the present appellant ac the police station. He, however, admitted that Police prepared three Mashirnamas Exhs. 6, 7 and 8 which contained his thumb- impression mark but the contents thereof have not been admitted by him to be correct. He has been declared hostile and the Court permitted the prosecution to cross-examine him. But nothing substantial has been brought out in the cross-examination. The A. S. I. Mohammad Siddique and Head Constable Mohammad Khan have been examined who have, of course, deposed in the trial Court that the "Charas" in question was recovered from the car which was being driven by the appellant and also from a lane pointed out by him. They have also stated that Police constables Khalil Ahmed and Abu Bakar also went with them to bus stand in town of Sehwan, as such information was received by A. S. I. P. Mohammad Siddique. They have also said that they saw a car passing from there at 11-45 a. m. They have supported the prosecution story as given in the F. I.
R. The prosecution has also examined P. W. Badruddin, Excise Inspector, who has certified that the material allegedly recovered from the appellant was found by him to be "Charas".
6. Mr. Mohammad A.I Shaikh, the learned counsel for the appellant has contended that only independent witness examined in the trial Court was Mashir Leemon who has not supported the prosecution case. The recovery of the "Charas" is -alleged to have taken place in town of 'Schwan' where thousands of people live, still not a single independent person has supported the prosecution case. Therefore, the recovery of "Charas" from the possession of the appellant is not proved beyond reasonable doubt. Both Mashirs did not support the factum of the recovery of the "Charas" from the appellant. Khuda Bux who acted as a co-Mashir with Leemon was also examined in the lower Court but he did not support the prosecution case and it was on account of this that he has not been examined in the trial Court. He has relied upon PLD 1975 SC 607 and PLD 1979 Kar.
31.
7. Mr. All Bakhsh Leghari, the learned counsel, appearing for the State has contended that the only ground taken by the learned counsel for the appellant is that evidence of the Investigating Officer, and the Head Constable should not be believed as the Mashirs of the recovery have not supported the prosecution case. The circumstances under which the "Charas" has been recovered are such that the Investigating Officer and the Head Constable Mohammad Khan are to be believed.
Moreover, it is such a big quantity of Charas which cannot be foisted upon the appellant. He has relied upon PLD 1975SC607.
8. I have considered the contentions of the learned counsel for the appellant as well as State. I have gone through the citations referred to above by the learned counsel for the appellant as well as State and have also carefully examined the evidence on the record. Actually the point involved in this matter is not that who should be believed or not believed. It involves a point of law, which the law makers intended that the Police Officers at the time of search should be accompanied by two independent persons who should be other than Police Officers. There are so many authorities on the point whereby it has been consistently insisted upon that the search should be made by the Police Officers alongwith the independent persons. The principle behind this idea is that it should be ensured that the testimony given in the Court in regard to the result of a search should `' not be taken upon the Police Officers alone but also upon the evidence of independent persons so that all possibility of fraud in the case of the search should be minimised. There is no such a question that the Police Officers are not the respectable persons or their evidence should not be believed. They are equally respectable persons but the law-makers have not left thing to their mercy only, particularly in oases of search.
The contention that because there is a big quantity of "charas" and ordinarily it cannot be foisted upon therefore the Police Officers have got to be believed is also not correct. It is not the question of quantity but it I the question of principle based on provisions of safeguard against the possible concoction on the part of the Investigating Officers and by providing such s provisions for making the search in presence of independent persons, the only purpose achieved out of it is that no one should be at the mercy of only Investigating Officers. In the instant case, the occurrence is in town of Sehwan which itself is a thickly populated one still not a single independent soul supports the prosecution case which creates a reasonable doubt of concoction under the circumstances of case. Therefore recovery of "Charas" without corroboration in a town like Sehwan cannot be accepted as the prosecution has failed to prove it.
8. For the foregoing reasons, I am of the view that it would result in a failure of justice not to give benefit of doubt to the appellant in a case of this nature. Therefore, I allow this appeal and set aside the conviction and the sentence imposed on the appellant.