Muhammad Hashim Khan Kakar, J.--Appellant Mst. Basheeran assailedthe judgment dated 27th August 2011, passed by the Special Judge, under the Control of Narcotic Substances Act, 1997, Sibi at Mach through instant appeal sent on her behalf by the Superintendent. Central Jail, Mach, whereby the appellant was convicted and sentenced under Section 9(c) of the Control of Narcotic Substances Act, 1997 (the CNS Act) to suffer life imprisonment (25 years) and to pay a fine of Rs, 100,000/- (rupees one hundred thousand only), in default whereof to further undergo SI for six (06) months, with the benefit of Section 382-B of the Cr.P.C.
2. It is the case of prosecution that on 4th March 2010, a case vide Crime No, 04 of 2010, under Section 9(c) of the CNS Act was registered at Railway Police, Sibi on the report of complainant Hubdar Hussain, SI. with the allegation that on above date, he, along with other police staff, was present in Police Help Center, Railway Station, Sibi, where Muhammad Umar, HC, whose duty was on train i,e, 4/DN Bolan Mail, informed him on Mobile Phone, about the suspected lady carrying some contraband material (narcotics) and asked him that he may arrange a lady constable; On receiving said information, he called lady constable Mehnaz to Police Station City, Sibi. At about 3:20 p.m. as the train arrived at railway station, the complainant along with other police party entered in Coach No, 5 of the train, Muhammad Umar, HC, pointed at a woman, who was sitting on Seat No, 64 in nervous condition and was about to change the seat, whereupon she was brought to Help Center with the help of lady constable. On search, twelve (12) kilograms baked charas, containing one (01) kilogram each, wrapped by the accused around her body, were recovered, which was taken into possession through recovery memo. Out of the recovered charas, 10/10 grams from each packet were separated for chemical test and sealed in a parcel, while the remaining charas was sealed in separate parcel. Consequently, the aforesaid case was registered.
3. After completion of the investigation, challan was prepared and the appellant was sent up to face the trial. On the stated allegation, a formal charge was framed and read over to the appellant, to which she did not plead guilty and claimed trial. The prosecution, in order to prove the accusation produced five witnesses, namely, PW-1 Muhammad Umar, HC, PW-2 Mehnaz Bibi, lady constable and FW-3 Amanullah, HC. It may be noted that the complainant-cum-investigating officer Hubdar Hussain. SI, had not been produced in evidence being not traceable on account of his retirement from service and, reportedly, has shifted to some unknown place in Punjab, therefore, the prosecution examined CW-1 Sher Dil, HC, who produced the warrants of arrest as well as his report.
4. In her examination recorded under Section 342 of the Cr.P.C., the appellant denied and controverted each and every allegation of -fact leveled against her by the prosecution and professed her innocence, however, she neither made any statement on oath under Section 340 (2) of the Cr.P.C. nor produced any witness in her defence. On conclusion of the trial, the Court below found the prosecution's case against the appellant to have been proved beyond reasonable doubt and thus, the appellant was convicted and sentenced as mentioned and detailed above.
5. We have heard the learned counsel for the pauper appellant as well as the counsel for the State and gone through the record with their valuable assistance. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. He further contended with vehemence that investigating officer, who also happened to be the complainant of the case has not been examined and produced before the Court and his non-examination has caused immense prejudice to the appellant because the previous statements made to him by the witnesses could not be put to him. The record is indicative of the fact that complainant-cum-investigating officer, Hubdar Hussain, SI, has not been produced before the Court and in this regard secondary evidence was produced to prove the writing of Hubdar Hussain. SI, by producing PW-3 Amanullah. There is no evidence to show that Hubdar Hussain was not available, traceable or that lie had absconded or was a proclaimed offender rather on the contrary the order sheet dated 21st February 2011 reveals that the investigating officer in spite of service of summon did not appear before the Court, similarly, order sheet dated 28th May 2011 purported about the illness of said Hubdar Hussain. There is no evidence to show that coercive process was issued as to procure the attendance of investigating officer. This being the case, in peculiar circumstances and inspite of availability of the investigating officer Hubdar Hussain, the evidence of PW-3 was not admissible. There is no cavil to the proposition that the investigating officer is a very important witness for the prosecution, as well as for the defence side.
He was not given up but was not produced, as he was reportedly sick, nothing has come on record, as he was sick or was not traceable. We are in agreement with the learned counsel for the appellant that non-production of the investigating officer, who was also complainant of the case has caused serious prejudice to the appellant. He was not only the complainant as well as investigation officer, but was also an eye-witness of the incident, hence his non-examination without any-cogent reason has caused serious prejudice to the appellant. The non-examination of the complainant-cum-investigating officer has caused immense prejudice to the appellant inasmuch, as he was not available to be questioned as to the statements made to him by the witnesses examined by him. The failure by the prosecution to examine the investigating officer deprives the defence by their very valuable right of opportunity of shaking the credit of the prosecution witnesses by bringing out the contradiction between their statements to the police during investigation and their evidence in the Court. Such a serious defect cannot be cured by discretion to the Court that he is to make strong presumption against, the prosecution on account of omission. It was essential that the investigating officer should have been examined to afford an opportunity to the defence to cross-examine him. By reason of his non-examination, the defence has been prejudiced specially in a case where the liberty of a citizen and capital punishment is involved.
For the aforesaid reasons, the appeal is allowed and the impugned judgment dated 27th August 2011 is set aside and the case is remanded to the trial Court, with direction to provide reasonable opportunity to the prosecution to produce and examine the complainant cum-investigating officer, in support of accusation and thereafter to decide the matter afresh, in accordance with law.