' SHAHID ANWAR BAJWA, J.---Appellant was tried for an offence under section 9(c) of Control of.
Narcotic Substances Act, 1997 and vide Judgment dated 4-6-2009 was convicted and sentenced to undergo imprisonment for life and also to'pay fine of Rs,1,00,000 and in case of failure to, pay, to further undergo R. I for one year more. Benefit of section 382-B, Cr.P.C. Was also granted to the appellant.
2. F.I.R. No,2 of 2008. Was recorded at Police Station DSS Excise Hyderabad Region on 25-1-2008 at 6-30 p.m. The complainant was State through Excise Inspector Attaullah. Complainant stated that on receipt of spy information by his superiors that a person was selling Charas near Sikander Petrol 'Pump, he along, with a party proceeded from P.S. And found appellant standing near Petrol Pump, who upon seeing police tried to run away. He was apprehended. He had a cloth bag in his hand, which when searched was found to contain '14 plastic packets. When these packets were opened they were found to contain charas: 12 packets had one slab each and 2 packets had 2 slabs each 10/10 grams sample i,e, 14 samples for chemical analysis were separated and sealed in a brown envelope and balance quantity was sealed in a cloth bag.
3. At the trial, Complainant was P.W.1.. Mashir Muhammad Khan appeared as P.W.2. After statement of the appellant was recorded under section 342, Cr.P.C., he produced Muhammad Ashraf as D.W.1.
Thereafter vide impugned Judgment dated 4-6-2009, the appellant was convicted and sentenced as stated above: hence this appeal.
4. Learned counsel for the appellant made the following submissions:--
(i) P.W.1 and P.W.2 have described different routs which the vehicle in which they proceeded from.
P.S. Took and in the Roznamcha no purpose for going out in the vehicle was stated;
(ii) A person (Sikander) is stated to have weighed charas, written mashirnama as well as F.I.R. And he has not been produced as witness.
(iii) There is discordance as to how many samples were taken, how samples were packed and sent to Chemical Analyzer;
(iv) The incident is alleged to have taken place at a busy road and no private mashir has been associated with the recovery;
(v) Learned counsel submitted that in this case I.O. Was also the Complainant and therefore, stricter assessm ent of evidence is required. He relied upon, case of State through Advocate- General, Sindh v. Bashir and others (PLD 1997 SC 408), Jan Alain v. The State (2009 YLR 1724), Nazeer Ahmed v. The State (PLD 2009 Karachi 191), and Mir Muhammad v. The State (2008 MLD 1333).
(vi) Learned counsel submitted that perusal of F.I.R. Indicates that Excise Party reached the time of wardat at 5-00 p.m. And mashirnama also states time to be 5-00 p.m. And considering contents of F.I.R. This could not be so.
(vii) Learned counsel submitted that in the F.I.R. It is stated that spy information was received that a person was standing at a place, then police party proceeded from P.S. It took half an hour to reach there and found present appellant still there. The received information was that the present appellant was selling charas. Learned counsel's contention here was three folded, firstly he said that there is no evidence of selling charas; secondly he submitted that why one person would remain standing with contraband at a place for one hour and thirdly normal human conduct would have been that seeing police, person would try to throw away incriminating material and try to rim away.
(viii)Learned counsel referred to statement recorded under section 342, Cr.P.C. Where present appellant had stated that he had enmity with constable Mithal Panhwar and in this regard he referred to evidence of D.W.1 as well as statement of the appellant's mother recorded by police.
(ix) Learned counsel referred to the details regarding packing stated in the F.I.R. And stated that same are missing in the mashirnama and this creates doubt. Learned counsel submitted that the appellant is innocent and has been falsely involved by Excise Department by foisting Charas.
5. Learned Deputy Prosecutor-General, Sindh submitted that minor contradictions cannot knock away solid base of a case where offence has been proved beyond reasonable doubt. He submitted that a police official is as good a witness as anybody else except when mala fide is proved against him and no such mala fide has been proved against any one in this case. He submitted that in statement under section 342, Cr.P.C. Appellant has accused constable Mithal of taking revenge due to dispute over a plot but no details of such plot has been produced by the present appellant.
6. We have considered the submissions made by the learned Counsel and have also gone through the record.
7.
Contention of learned Counsel was that in Roznamcha entry it was stated that Excise party proceeded towards Kotri. P.W.1 in his cross-examination stated that after leaving their office which is situated in GOR Colony, they came at Thandi Sarak and then came to Giddu Chwok and thus they came to Kotri through National Highway. P.W.2 in his cross-examination stated that they came through State Bank, Wandat Colony Chowk, Kotri Bridge and after crossing railway crossing came to the place of incident near Sikander Petrol Pump. P.W.1 in his statement stated that spy information was received by his superiors that one person was selling charas and standing near Sikander Petrol Pump Kotri. All these three pieces put together indicate that atleast as far as the complainant is concerned when he left his office, he knew as to where he intended to go. It is possible that Excise constables etc. Present with him may not have been told of the exact intended spot regarding which alleged information had been received and therefore, contradiction as to which rout did the mobile take could be a minor contradiction which standing alone would not be sufficient to dislodge case of the prosecution. It may be noted that defence did not ask question from P.W.2 regarding knowledge as to where they were proceeding and whether that knowledge had been conveyed to P.W.2 or other constables etc, with them. Therefore this ground urged by learned counsel is not very material and may be only a minor contradiction. Second contention of learned counsel was that it was Excise constable Sikander Ali, who weighed the charas, wrote mashirnama and wrote F.I.R. Again this contention is not material contention as F.I.R. Reveals that Sikander was with party which proceeded from P.S.
8. This brings us to the samples,. It is stated by P.W.I that there were 14 packets of charas: 12 packets contained one slab of charas while two packets contained two slabs of chars; thus there were 14 packets and 16 slabs. These 16 slabs were admitted by P.W.2. Thereafter P.W.1 stated that he separated 10 grams of charas from each Pati (slab) of charas for sending to the Chemical Examiner. Then he stated that he sealed each sample separately while remaining charas was kept in a cloth bag. P.W.2 stated same regarding 14 packets, 12 having one slab and two having two slabs then he stated that sample was taken from each packet and 14 separate Khaki paper envelopes were used for this purpose. Remaining charas was sealed in a cloth bag. In the F.I.R. Also it is stated that 14 samples were sealed in brown envelopes. Now admittedly there were 14 packets 16 slabs P.W.1 says that sample was taken from each slab and P.W.2 says that sample was taken from each packet.. If the sample was taken from each slab there would have been 16 samples and if sample was taken from each packet there should have been 14 samples and F.I.R. Says 14 samples, Chemical Analyzer report says 14 samples. This fact standing alone would probably knock out 2 Kg. i,e, two packets in which there were two slabs from the proved quantity. But matter proceeds further. F.I.R. Says that samples were packed in brown envelopes, Chemical Analyzer's report says each of the parcels (14 in all) contained one plastic Thelli. P.W.2 was confronted with this aspect and he stated as under:-- "It is incorrect that we had sent the samples in polythene bags as reported by Chemical Examiner.
Voluntarily says we had sent samples in Khaki paper envelopes".
' Now the two facts are put together. Firstly P.W.1's statement that sample was taken from each slab (16 slabs 14 packets, 14 samples), P.W.2's statement that sample was taken from each packet and on the other hand statement in F.I.R. And by P.W.2 that it was brown envelope which was used and Chemical Analyzer report states that it was plastic. The in which samples were packed. This may be juxtaposed with another piece of evidence. P.W.1 stated that samples were weighed and sealed at the spot. P.W.2 stated that "After completing formalities at the place of wardat we directly came at our office. We weighed pieces of samples and then we sealed in envelopes".
9. All these put together create doubt. Both the witnesses are Excise Personnel and the complainant was also I.O. In case of State through Advocate-General Sindh v. Bashir and others (PLD 1997 SC 408), it was observed by the Supreme Court as under:-- "The reference may be made to the Police Rules, 1934. Chapter XXV of the Police Rules relates to Investigation. Para 3 of the Rule 25.2 in Chapter XXV reads as under:-- "3. It is the duty of an Investigating Officer to find out the truth of the matter under investigation . His object shall be to discover the actual facts of the case and to arrest the real offender or offenders.
He shall not commit himself prematurely to any view of the facts or against any person".
' It could hardly be expected that a police officer, who is heading a raiding party and is a witness, also becomes the Complainant and lodges an F.I.R. Against the accused, and then becoming an Investigating Officer of the same case, will comply with the aforesaid Police Rule. In the circumstances, the practice of the seizing officer or the head of a police party who is also a witness to the crime becoming or being nominated as an Investigating Officer of the same case should be avoided and if any other competent officer is available in the police station, he may be nominated as the Investigating Officer rather than the .Head of the Police party. As observed, Investigating Officer is an important witness for the defence also and in case the head of the police party also becomes the Investigating Officer he may not be able to discharge his duties as required of him under the Police Rules."
' It may be pointed out that it was a case under Arms Ordinance and not a case under the Control of Narcotic Substances Act. Role of I.O. In run of the mill narcotics cases is pretty simple: send the samples to Chemical Analyzer and produce his report. This is almost all that was done by way of investigation in this case. Therefore fact that I.O. And Complainant was the same cannot be fatal to the case of prosecution unless it is shown that what prejudice has been caused to the defence. In Jan Alam's case (supra) fact of exclusion of section 103, Cr.P.C. Was considered and it was observed as under:- Non-association of independent person in spite of the fact that recovery took place at public place is itself a question mark in view of above discussion, which do find support from Ali Hassan v. The State )PLD 2001 Karachi) that:-- "The trial Court has further referred to the provisions of section 25 of the Control of Narcotic Substances Act, 1997, whereby applicability of section 103, Cr.P.C. In the cases under this Act has been excluded. This exemption may give a legal technical support to the admissibility of the evidence of official witnesses, but it does not make them reliable. Man cannot be made moral through legislation. Evidence of such official witnesses should always be examined with a view of the facts that in a society with the level of moral values that we unfortunately have, a subordinate official is seldom expected to tell the truth in deviation of the express or implied instructions, of his superior. As far the ulterior motive, these officials are always interested to show their efficiency by registering more cases and the reason for not foisting the other opium, allegedly thrown away by one Irshad Khan who escaped, upon the present appellant may be to make more number of cases by that quantity".
' In Nazir Ahmed's case (supra) Bashir's case (supra) was followed. In Mir Muhammad's case (supra) according to F.I.R. On receipt of information that narcotics substance was available in a room, ANF proceeded to room in the hotel and found the appellant putting slabs of charas in cartoon. No private witness was associated with recovery. Learned Division Bench of this Court observed that register of the Hotel of persons as to who was staying in the room was not recovered and no independent witness was produced. Normally police constables are available outside the hotel and none of the constables were associated in the recovery. Thereafter it was observed as under:-- "The case of prosecution is on very weak footings. The prosecution story appears to be unbelievable at the face of it. It is against the normal course of human conduct to expose oneself to danger of arrest/apprehension and any person particularly a criminal would take all precaution to see that crime committed by him is not detected. The instinct of self-preservation is always predominant in every human being and more particularly so in a criminals. It is not believable that the appellant would be packing charas in a cartoon for smuggling it, while keeping the door of room of hotel opened. It is equally unbelievable that he would keep charas openly on a table of the said room. No doubt official witnesses are admissible, but it does not mean that they are reliable also. Every case is to be seen in the light of facts of its own case. One single circumstance throwing doubt is sufficient to discard prosecution case".
10. Contention of learned counsel that the police party claimed that they reached at the spot at 5- 00 p.m. And Mashirnama is also stated to have been prepared at 5-00 p.m. Is not very material because even if there is few minutes delay this a minor discrepancy. Same is the position of contention of learned counsel regarding application by the mother of the present appellant because statement of the mother was recorded after the present F.I.R. Had been recorded. Similar is the position of contention of learned counsel that page number is not menttoned in Roznamcha.
' It has been held by the Supreme Court in case of Tarique Pervez v. The State (1995 SCMR 1345:- "For giving him benefit of doubt, it is not necessary there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right".
11. As discussed above, the story of the prosecution is pock marked by a doubt: how many samples were recovered, where they were sealed and in what they were sealed. It is settled law that where only police personnel are only witnesses and these are only official witnesses, the Court must scrutinize evidence with a greater degree of circumspection: the tooth comb must be with much more fine teeth in such cases then otherwise.
12. Result of the above discussion is that this appeal is allowed and appellant is acquitted by granting him benefit of doubt. He is ordered to be released forthwith if not required in any other case.