JUDGMENT SYED MEHMOOD ALAM RIZVI, J.---This Appeal is directed against the judgment dated 12- 7-2004 passed by the Special Judge, Control of Narcotic Substances, Hyderabad in Special Case No.76 of 1998 arising out of F.I.R. No.72 of 1998, registered under section 9(c) Control of Narcotic Substances Act, 1997, (hereinafter referred to as the "Act of 1997") registered at Police Station Bulri Shah Karim, whereby the appellant had been convicted and sentenced to suffer imprisonment for life and to pay a fine of Rs.200,000 and in case of default in payment of fine, the appellant is to suffer another year in imprisonment. However, benefit of section 382-B, Cr.P.C. Had been extended to appellant.
2. Precisely the facts of the prosecution case are that as per direction of the DSP Tando Muhammad Khan, S.H.O. Police Station 'Cando Muhammad Khan proceeded some 20 kms away within the jurisdiction of Police Station Bulri Shah Karim and found the appellant at the bus stop sitting on a polythene bag. The appellant tried to make his escape good but the police officials apprehended the appellant and after search of polythene bag recovered 20 slabs of charas. The weight of each slab was 1 kg hence total weight of recovered charas was 20 kg and on personal search Rs.800 were also secured. The mashirnama of arrest and recovery was prepared at the spot in presence of A.S.-I. Rehan Ali shah and A.S.-I. Shakeel Ahmed Jamali who acted as mashirs.
The property was sealed at the spot. Thereafter, the complainant S.H.O. Dost Muhammad Mangrio proceeded to Police Station Bulri Shah Karim along with the appellant and the contraband and himself lodged an F.I.R. The complainant himself conducted the investigation and sent the entire property for chemical examination and thereafter, submitted challan before the trial Court.
3. The trial Court framed the charge upon the appellant who pleaded not guilty and claimed to be tried.
4. The prosecution in support of its case examined P.W.1 Inspector Dost Muhammad Mangrio who produced memo. Of arrest and recovery. F.I.R., roznamcha entry and chemical report, and the second P.W. SIP Shakeel, the mashir of recovery, supported the complainant. Thereafter, the prosecution closed its side. The appellant recorded statement under section 342, Cr.P.C. Wherein he claimed his innocence and further stated that he has been falsely implicated in the above case and the alleged contraband had been foisted upon him, whereas the same had been effected from one Shah Nawaz, an employee of Sugar Mill. In support of his contention he produced the original Daily "Sindhu", in which two persons namely Shah Nawaz and Sadiq were shown arrested by Jhok Police Station from whom the police recovered 30 kg charas. The learned trial Court after hearing both the counsel convicted the appellant.
5. The learned counsel for the appellant has challenged the very jurisdiction of Police Station Tando Muhammad Khan regarding the investigation and submission of challan and the subsequent proceedings on the basis of defective investigation. He also urged that the impugned judgment was not sustainable in law as the entire proceedings were illegal. He has further contended that it is the prosecution case that the place of alleged recovery was 5 k.m. Away from the Police Station Bulri Shah Karim whereas the complainant, who was the S.H.O. Of Police Station Tando Muhammad Khan on the instructions of the DSP after travelling 20 k.Ms. Reached at the spot and arrested the appellant. He has further contended that Police Station Bulri Shah Karim, Police Station Tando Muhammad Khan and P.P. Jhok were within the administrative jurisdiction of the DSP Tando Muhammad Khan, therefore, in presence of such information the said DSP could have directed the S.H.O. Police Station Bulri Shah Karim to raid and arrest the appellant. There is no doubt that the contraband and the appellant were produced before the concerned Police Station where an F.I.R.
Was lodged. However, the taking of the contraband and the appellant by the complainant himself and then conducting the investigation himself, were illegal and without orders of the competent authority. In this respect, he has referred to the cross-examination of the complainant in which he had narrated the above fact that no order in writing was available with him:- "place of recovery is about 19/20 k.m. Away from Police Station Tando Muhammad. I did not inform or contacted S.H.O. Bulri Shah Karim before proceeding to the place of recovery................... Received telephonic message of DSP at Bulri Shah Karim Police Station. It is correct that S.H.O. Police Station Bulri Shah Karim was available at Police Station when I lodged the F.I.R. But my statement under section 161, Cr.P.C. And the statement of P.W. Were not recorded by him No any direction in writing was given to me by the DSP for bringing the accused and property at police station Tando Muhammad Khan".
6. 'The learned counsel further contended that the complainant can conduct the investigation himself unless mala fides are apparent. However, in the instant case, as per statement of the complainant/I.O., it was apparent that he was bent upon booking the appellant, He has relied upon the following judgments on this point:---
(1) State through Advocate-General, Sindh v. Bashir and others (PLD 1976 SC 408).
(2) Muhammad Yousuf v. The State (2004 PCr.LJ 685).
(3) Nazeer Ahmed v. The State (PLD 2009 Kar. 191).
7. The learned counsel has further referred to section 166(1) and (4) of the Criminal Procedure Code, and to Chapter XXI, Rules 25.3 and 25.4 of the Police Rules, 1934, to the effect that the S.H.O.
Had to act within the jurisdiction of his police station and prior to conducting the investigation and arrest outside his territorial limits he should have informed the concerned police station. That in the instant case he violated the law, and further, that he conducted the investigation without any order of the competent authority, which was illegal. He further contended that it was in the knowledge of the complainant that P.P. Jhok Sharif recovered 30 kg, charas from one Shah Nawaz and Muhammad Sadiq and the news was also published in the newspaper on 27-7-1998 but during the cross-examination he refuted the said recovery. He has further contended that even otherwise, the complainant/I.O. Stated that he formed a party to raid the concerned place while the attesting witnesses A.S.-I. Shakeel Ahmed Jamali deposed that the party was formed by DSP himself. He further contended that after going through the mashirnama of arrest and F.I.R., the case appears to be doubtful and not believable as the police party only after travelling 20 k.Ms reached the bus stop where admittedly traffic was plying on the roads and that the fact that the appellant is said to have remained sitting on the contraband was highly doubtful rather unbelievable. In such circumstances the appellant is in custody since 25-7-1998 and per jail roll he has served a sentence of more than 14 years, which is indeed shocking.
8. The learned State counsel has vehemently opposed the arguments of the learned counsel for the appellant and has contended that huge quantity of contraband was recovered from the appellant and the witnesses have corroborated each other, and that no material contradiction has been pointed out by the learned defence counsel. That the chemical report was positive and the entire property was sent to the Chemical Analyzer. That regarding the newspaper clippings it is an admitted fact that neither the reporter nor Editor was called as witness regarding the verification of the said news clipping. He has supported the judgment but he was not been able to answer the question regarding the conducting of the investigation by the complainant himself and the bringing of the contraband and the appellant to his on Police Station without a legal order.
9. Heard both the learned counsel and perused the record minutely.
10. It is an admitted fact that after information about the presence of the appellant at the spot the complainant proceeded to the bus stop after travelling 20 kMs. To the jurisdiction of another police station, without informing the S.H.O. Of the said Police Station Bulri Shah Karim, and that he arrested the appellant with the contraband while he was sitting at the bus stop is undigestable. Even otherwise, the S.H.O. Of Police Station Tando Muhammad Khan himself became the complainant and registered an F.I.R. At the area police station but the said S.H.O. Neither recorded statements of the prosecution witnesses nor conducted the investigation and without any legal order handed over the copies of the F.I.R., to the complainant. The S.H.O. Brought the same to his on police station allegedly on the oral orders of the DSP and himself conducted the investigation and submitted the challan. All of this appears to be mala fide, and illegal and the same cannot be sustained in law as he has violated the procedure given in the criminal Procedure Code, a well as in the police rules mentioned above. It is the consistent view of the superior courts that the complainant should avoid conducting the investigation himself, and 4n the instant case mala fides are apparent. Even otherwise, out of two attesting witnesses only one was produced in court which was also oversighted by the learned trial Court. In cases where the complainant conducted the investigation the court must examine both the attesting witnesses as this is the requirement of the law, and the court should also satisfy itself of the facts of the case as such cases were punishable with death or imprisonment for life. Therefore the trial Court should be cautious as capital punishment cannot be awarded in the above mentioned peculiar circumstances. Therefore, all the proceedings conducted by the trial Court were also illegal.
11. In view of the above the appeal is allowed, and the impugned judgment is set aside, However as the appellant has served out more than 14 years in prison he may initiate proceedings according to law against the police officials besides, the I.G. Sindh to take stern action against the aforementioned police officials. The copy of the Ocular by sent to I.G. Sindh.
12. These are the reasons of short order passed on 15-4-2009 whereby the appeal was allowed..